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09-07-08, 08:56 AM
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Peer-To-Peer News - The Week In Review - July 12th, '08
Since 2002
  "We aren't going to let politicians who are always wanting to jump on populous bandwagons dictate what we can and can't show." – Martyn Jolly "I love the photo so much. I think that the picture my mum took of me had nothing to do with being abused, and I think nudity can be a part of art." – Olympia Nelson "I will come to your agency if you’ll tell me now you’ll take my little sister Suzy sight unseen." – Dorian Leigh "No one is forcing Viacom to put their junk on the internet, you know. They can sell it on DVDs or put it on TV or in whatever ways they used to. But if they do want to enter the internet space, at least they should learn how to behave in the culture in the new medium, instead of trying to make it change to be like its old business model. Hire some geeks, Viacom, will you?" – Pamela Jones "This legislation will give the government unfettered and unchecked access to innocent Americans’ international communications without a warrant. This is not only unconstitutional, but absolutely un-American." – Anthony D. Romero "This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law. The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment." – Jameel Jaffer "As one commenter to my blog so aptly said, 'Senator Obama, you can tap my phone or my wallet, but not both.'" – Bob Ostertag July 12th , 2008  20 Houses "To Use More Traffic Than Entire Net By 2011" AT&T claims the internet will run out of capacity in 2010, joining the gathering crowd of net doom mongers. The US telecoms giant repeats the now familiar warning that increased demand for video content could push the internet to its limits. "The surge in online content is at the centre of the most dramatic changes affecting the internet today," said Jim Cicconi, vice president of legislative affairs for AT&T, according to a report on ZDNet. "In three years' time, 20 typical households will generate more traffic than the entire internet today." "We are going to be butting up against the physical capacity of the internet by 2010," he added. AT&T last year pledged to adopt "net neutrality", which promises to treat all web traffic equally, and not give priority access to those providers who pay carriers. This latest outburst may be an attempt to reignite the debate, with Cicconi specifically pointing out that the internet hinges on the investment of companies such as his. "There is nothing magic or ethereal about the internet - it is no more ethereal than the highway system," he said. "It is not created by an act of God but upgraded and maintained by private investors." The UK has recently become embroiled in a similar row over the increasing demands of video content, with ISPs such as Tiscali calling for the BBC to help meet the bandwidth costs of its catch-up TV service. From April http://www.pcpro.co.uk/news/189918/2...t-by-2011.html  Internet Cable-Laying Boom Dozens of new undersea internet cables are set to be laid over the next couple of years, providing a huge boost to worldwide capacity. The huge boom in internet video has led to Domesday scenarios of the internet running out of capacity. Yet, most of the bandwidth bottlenecks are found in the "last mile" of connections to the home, and not the undersea cables that underpin the worldwide internet infrastructure. Indeed, many experts believe that there is abundant amounts of "dark fibre" that remains unused in oceans across the world. Nevertheless, the Financial Times reports that major telcos are pushing ahead with projects that will see dozens of new cables laid before the end of the decade. At least 25 new cables will be laid by 2010, at a cost of $6.4bn, according to TeleGeography Research, a Washington-based telecoms consultancy. "In light of the tremendous untapped potential capacity on many submarine cables, it may seem surprising that a new cable-building boom is underway," TeleGeography claims. "The reasons for cable construction are often a combination of several factors; including dwindling available capacity on some cables, a desire for wider restoration options, the need for physically diverse routes, competition, and high capacity prices in some regions of the world." The cables are predominantly set to be laid in areas such as Africa, the Caribbean and the Middle East, which are currently underserved. Google, for example, announced plans to build a 10,000km fibre-optic cable linking the US and Japan in February. Internet access to parts of the Middle East was cut off in February this year, when undersea cables were cut. http://www.pcpro.co.uk/news/210999/i...ying-boom.html Aussies May Get Limitless Downloads Andrew Colley RELIEF may be at hand for Australian consumers starved of the limitless internet download quotas offered in other countries. A report on Asia's sub-marine cable market, which is supported by the announcement of an upgrade by Australia's main US internet traffic supplier, has revealed that the region's international bandwidth may creep into oversupply after 2010. The report by Communications analyst Ovum reveals a dearth of new undersea cable projects throughout the Asia-Pacific region. Australian internet service providers have argued that the cost of international capacity is not falling quickly enough to offset growing demand for international bandwidth among customers, which drives up their operating expenses. ISPs have passed cost increases on to their customers in the form of higher monthly charges for services, or reductions in bandwidth quotas. Ovum senior analyst David Kennedy said prices downstream suppliers paid for capacity in the medium term were expected to fall. It was not clear, however, what effect they would have over the long term, he said. "How far those prices will improve is difficult to say and a lot depends on what will happen after 2009. "There's a lot of proposed new investment in trans-Pacific cable. If all of it goes ahead into 2010 and so on, it is quite possible we could see some price drops," Mr Kennedy said. Ovum said projects including Pipe Networks' $200 million Sydney-Guam cable, Telstra's Australia-Hawaii cable, the Google-led Unity consortium's US-Japan cable, and other upgrades throughout the region, were expected to dramatically increase capacity in the region. One of the main drivers of capacity is the availability of new technology, which could treble the capacity on existing undersea fibre at low cost. Last week, Southern Cross Cable, which supplies 80 per cent of Australia's US transmission capacity, said it may increase the transmission capacity to the US by 1000 per cent within three years due to the availability of low-cost cable capacity upgrades. It was close to completing a 10Gb upgrade to its network, and sales and marketing director Ross Pfeffer said it might skip a 40Gb upgrade in favour of 100Gb technology becoming available earlier than expected. "We're already in detailed conversations with our board and have started conversations with suppliers as to when the next upgrade will be, and we are finalising new services that will require us to have a lot more capacity," Mr Pfeffer said. Ovum said most of the new capacity would be absorbed by a doubling of internet connections in the region by 2011, but it warned operators to avoid a price war. "Continued growth in capacity at the current rate would quickly create a large supply overhang that could easily result in a downward price spiral," it said. http://www.australianit.news.com.au/...-15306,00.html Telecoms Sue Over High-Speed Links Peter Page Telecommunications companies are suing cities around the nation to stop the construction of publicly owned fiber optic systems to bring high-speed Internet, telephone and cable television to communities far from metropolitan centers. Attorneys for cities say the telecommunications suits, whether brought under state law, the Federal Telecommunications Act or other laws, are veiled attempts to stop construction of competing public systems providing an essential utility in the digital age. "It's a national playbook. The longer they [telecom companies] delay things, the better for them," said Patrick Ottinger, general counsel for Lafayette, La. The city's plans for a $125 million municipal broadband system were delayed by suits brought by BellSouth and Cox Communications Inc. One suit resulted in the city holding a referendum to approve the bond sale. The other was resolved when the city amended the bond ordinance adopted after the referendum to conform with an unfavorable appellate decision. BellSouth Telcoms. Inc. v. City of Lafayette, 919 So. 2d 844 (La. 3d Ct. App.). Attorneys for telecommunications companies say the litigation is needed because municipalities with the ability to borrow money cheaply -- and not hobbled by the need to return a profit -- have unfair competitive advantages. "Our position has never been that it is unlawful for cities to do this, but you can't use your powers as a city to create an uneven playing field," said David Goodnight in Stoel Rives' Seattle office, who has represented Qwest Communications International Inc. against cities in numerous suits since 2000. Two pivotal cases Goodnight won upended the telecommunications ordinances in Berkeley, Calif., and Sante Fe, N.M. Qwest v. City of Berkeley, 433 F.3d 1253 (9th Cir. 2006); Qwest v. City of Santa Fe, 380 F.3d 1258 (10th Cir.). A Fight In Utah Goodnight cited an association of Utah cities formed to promote the construction of a broadband networks in smaller cities and rural areas. "What we found during discovery was that the cities were providing facilities and personnel at no cost, interest-free loans and, in some instances, outright cash infusions," he said. Steve Allread, a solo practitioner in Salt Lake City who represents the Utah association, countered that "[i]f the private sector had been more responsive, there would not have been a need for the project. This litigation was an attempt [by Qwest] to recreate the old monopolistic system." The suit settled in 2006. Qwest Corp v. Utah Telecommunication Open Infrastructure Agency, No. 2:05-cv-00471 PGC (D. Utah.). Jim Baller of the Baller Herbst Law Group in Washington has participated in many of the suits and is an advocate for policies favoring municipal broadband networks. "It is common for the affected cable company to sue over these initiatives," Baller said. "This is similar to electrification a century ago when small towns and rural areas were left behind, so they formed their own authorities." Many involved in the issue see a typical clash of viewpoints in the litigation embroiling Monticello, Minn., a town near Minneapolis, and TDS Telecom, a subsidiary of Bridgewater Telephone Co. The city, complaining that neither TDS nor its competitor Charter Communications Inc. would bring fiber cable to every home and business, won a 74 percent majority in a referendum to build a municipal system. TDS sued on the eve of a city council meeting to finalize the plan. "The municipal system will be in direct competition with private companies," said David Johnson of Sidley Austin in Chicago, who is representing TDS. "The city is construing public convenience so broadly it would allow the city of Monticello to go into competition with any business in the city if it didn't like the prices or services, and they could do it with tax-free financing with no need to make a profit." John Baker of Greene Espel in Minneapolis, who represents the city, said cities across the state had used the broadly worded state law to sell bonds backed by anticipated revenues to build water parks, ambulance services, ski areas and Internet services. "TDS is trying to take the open-ended authority of Minnesota municipalities to issue revenue bonds for public convenience and define 'public convenience' right out of existence," Baker said. A motion for dismal is scheduled to be argued on July 18. Bridgewater Telephone Co. v. Monticello, No. 86-CV-08-4555. http://www.law.com/jsp/legaltechnolo...769174&rss=ltn Broadband Customer 'Hit With £31,000 Bill' Jayne Davison The Manchester resident received the shock charge for downloading music and a TV show episode while overseas. A mobile broadband user has received a shock £31,000 ($60,000) bill for downloading music and a single episode of popular TV show Prison Break. Iayn Dobsyn, 34, downloaded the files through a mobile broadband card plugged into his laptop during a recent holiday in Portugal. The Salford, Greater Manchester resident was unaware that downloads are much more highly charged-for while the user is overseas. On receiving the bill from his broadband provider, Yes Telecom, Mr Dobsyn sought out legal advice; he has since had the bill reduced to £229. His current broadband bill averages £150 per month, he told the Lancashire Telegraph. Mr Dobsyn added: "The figures looked like they had come down from the moon. I just laughed. There had to be some mistake. I knew I had used a lot of data while abroad, but not to the tune of £31,000. The figures just didn't make sense." His lawyer, Danielle Mestraud, also told the newspaper that Yes Telecom initially said that they were "happy" with the bill and would be seeking payment for it. However, following "negotiations", it agreed to allow the broadband customer to switch to a lower tariff. http://www.money.co.uk/article/10008...31000-bill.htm As Web Traffic Grows, Crashes Take Bigger Toll Brad Stone Alex Payne, a 24-year-old Internet engineer here, has devised a way to answer a commonly asked question of the digital age: Is my favorite Web site working today? In March, Mr. Payne created downforeveryoneorjustme.com, as in, “Down for everyone, or just me?” It lets visitors type in a Web address and see whether a site is generally inaccessible or whether the problem is with their own connection. “I had seen that question posed so often,” said Mr. Payne, who perhaps not coincidentally works at Twitter, a Web messaging and social networking site that is itself known for frequent downtime. “Technology companies have branded the Internet as a place that is always on and where information is always available. People are disappointed and looking for answers when it turns out not to be true.” There is plenty of disappointment to go around these days. Such technology stalwarts as Yahoo, Amazon.com and Research in Motion, the company behind the BlackBerry, have all suffered embarrassing technical problems in the last few months. About a month ago, a sudden surge of visitors to Mr. Payne’s site began asking about the normally impervious Amazon. That site was ultimately down for several hours over two business days, and Amazon, by some estimates, lost more than a million dollars an hour in sales. The Web, like any technology or medium, has always been susceptible to unforeseen hiccups. Particularly in the early days of the Web, sites like eBay and Schwab.com regularly went dark. But since fewer people used the Internet back then, the stakes were much lower. Now the Web is an irreplaceable part of daily life, and Internet companies have plans to make us even more dependent on it. Companies like Google want us to store not just e-mail online but also spreadsheets, photo albums, sales data and nearly every other piece of personal and professional information. That data is supposed to be more accessible than information tucked away in the office computer or filing cabinet. The problem is that this ideal requires Web services to be available around the clock — and even the Internet’s biggest companies sometimes have trouble making that happen. Last holiday season, Yahoo’s system for Internet retailers, Yahoo Merchant Solutions, went dark for 14 hours, taking down thousands of e-commerce companies on one of the busiest shopping days of the year. In February, certain Amazon services that power the sites of many Web start-up companies had a day of intermittent failures, knocking many of those companies offline. The causes of these problems range widely: it might be system upgrades with unintended consequences, human error (oops, wrong button) or even just old-fashioned electrical failures. Last month, an electrical explosion in a Houston data center of the Planet, a Web hosting company, knocked thousands of Web businesses off the Internet for up to five days. “It was prolonged torture,” said Grant Burhans, a Web entrepreneur from Florida whose telecommunications- and real-estate-related Web sites were down for four days, costing him thousands of dollars in lost business. Web addicts who find themselves shut out of their favorite Web sites tend to fill blogs and online bulletin boards with angry invective about broken promises and interrupted routines. The volatile emotions around Web downtime are perhaps most prevalent in the discussion around Twitter, on which users post updates on who they are with, where they are, and what they are doing. According to Pingdom, a Web monitoring firm, Twitter was down for 37 hours this year through April — by far more than any other major social networking Web site. Instead of simply dumping the service and moving on with their lives, Twitter users have responded with an endless stream of rancor, creating “Is Twitter Down?” T-shirts, blog rants and YouTube parodies, and posting copies of Twitter’s various artfully designed error messages. “This is a free service. It’s not like anyone’s life is depending on Twitter,” said Laura Fitton, a consultant and self-described passionate Twitter user. “Twitter is all about the things we discover we have in common, so right there, Twitter failing is a huge thing we have in common,” she said. “It’s fun to complain to each other and commiserate.” Twitter has said its downtime is the result of rapidly growing demand and fundamental mistakes in its original architecture. Jesse Robbins, a former Amazon executive who was responsible for keeping Amazon online from 2004 to 2006, says the outcries over failures are understandable. “When these sites go away, it’s a sudden loss. It’s like you are standing in the middle of Macy’s and the power goes out,” he said. “When the thing you depend on to live your daily life suddenly goes away, it’s trauma.” He says Web services should be held to the same standard of reliability as the older services they aim to replace. “These companies have a responsibility to people who rely and depend on them, just as people going over a public bridge expect that the bridge won’t suddenly collapse.” By some measures, despite the high-profile failures, the Internet is performing better than ever. “There are millions of Web sites and billions of Web pages around the world,” said Umang Gupta, chief executive of Keynote Systems, which monitors companies’ Web performance. “These big high-visibility problems are actually very rare.” But perhaps they are not rare enough. One morning last month, Google App Engine, a service that lets people run interactive Web applications, was unavailable for several hours. Among those affected was Mr. Payne, who had just shifted downforeveryoneorjustme.com over to Google’s servers. It was inaccessible as well. http://www.nytimes.com/2008/07/06/te...outage.html?hp Photonic Switching Beckons 100x Internet Speeds Terabit capacity photonic technology faster than electric circuits Rodney Gedda Researchers at the University of Sydney have developed technology that could boost the throughput of existing networks by 100-fold without costing the consumer any more, and its all thanks to a scratch on a piece of glass. After four years of development, University of Sydney scientists say the Internet is set to become on average 60 times faster than existing networks. According to the Centre for Ultra-high bandwidth Devices for Optical Systems (CUDOS) at the University's School of Physics, the scratch will mean almost instantaneous, error-free and unlimited access to the Internet anywhere in the world. CUDOS director, professor Ben Eggleton, said the discovery is a critical building block and a fundamental advance on what is already out there. Eggleton said that up until now information has been moving at a slow rate, but optical fibres have a huge capacity to deliver more. "The scratched glass we've developed is actually a photonic integrated circuit," Eggleton said. "This circuit uses the 'scratch' as a guide or a switching path for information - like when trains are switched from one track to another - except this switch takes only one picosecond to change tracks. This means that in one second the switch is turning on and off about one million times. We are talking about photonic technology that has terabit per second capacity." An initial demonstration proved it possible to achieve speeds 60 times faster than existing local networks. "We [now] use electronics for switching and that has been okay, but as we move toward a more tech-savvy future there is a demand for instant Web gratification," Eggleton said. "Photonic technology delivers what's needed and, more importantly, what's wanted." The CUDOS research is based on collaboration between teams at the University of Sydney, the Australian National University, and the Technical University of Denmark. Research is also supported with Australian Research Council funding. http://www.techworld.com.au/article/...nternet_speeds Comcast Again Chided For Allegedly Blocking Internet Traffic The company's agreement to smoothly deliver Vonage's VoIP services raises critics' questions about the ISP's network management practices. K.C. Jones Comcast's announcement that it has a collaborative agreement with Vonage to help ensure it can deliver its VoIP services smoothly has drawn criticism. Comcast has been criticized for slowing or blocking network traffic, but the company claims it has done so only to alleviate network congestion, without regard to the source of the content. The two companies said their network operators will be able to communicate directly to address any problems that come up. They will also work together as Comcast tests new network management methods, which Comcast has said will be "content-agnostic." Critics have jumped on this week's announcement, saying it calls into question Comcast's network management practices. Marvin Ammori, general counsel of Free Press, lodged an official complaint with the Federal Communications Commission after media reported that Comcast blocked legal file-sharing. As regulators prepare to investigate the charges, Ammori launched fresh attacks. "We are baffled as to why it was necessary for Vonage to strike a network management agreement with Comcast to guarantee that their services are not degraded or blocked," he said. "Such anti-competitive, anti-consumer practices are already against the law. And beyond that, Comcast has been on the record as saying that they do nothing to deter their customers' use of VoIP. This announcement calls into question the company's honesty about its treatment of competing services." He wants to know if Comcast degraded Vonage's VoIP service and if they continue to degrade other services from competitors. "That these questions remain unanswered by today's announcement is cause for great concern. This collaboration should do nothing to deter the FCC from investigating and stopping Comcast's blocking other Internet services," he said. A Comcast representative said that the agreement was to ensure that the protocol-agnostic technique doesn't affect services and stressed that Vonage service was not affected in the past because only peer-to-peer applications were affected. http://www.informationweek.com/news/...leID=208808475 Court: FCC Should Decide Net Neutrality Issues Wendy Davis A federal judge in California has suspended proceedings in a subscriber's lawsuit against Comcast while the Federal Communications Commission completes its investigation into whether the company violated net neutrality principles by slowing traffic to peer-to-peer sites. U.S. Judge Phyllis Hamilton stayed the case on the grounds that the FCC was already considering petitions against Comcast filed by online video company Vuze, as well as net neutrality advocates Free Press and Public Knowledge. "The FCC is already using its recognized expertise to consider some of the exact questions placed before the court here, in an effort to promote uniformity in internet broadband regulation," Hamilton wrote in a ruling quietly issued late last month. In the ruling, Hamilton said the FCC has "well-established" authority to regulate broadband companies' services. "The reasonableness of a broadband provider's network management practices has ... been firmly placed within the jurisdiction of the Federal Communications Commission," she wrote. Last year, an investigation by The Associated Press revealed that Comcast was slowing traffic to peer-to-peer sites. The report triggered complaints to the FCC that Comcast was violating 2005 net neutrality principles, as well as a putative class-action lawsuit by California resident Jon Hart. He alleged that Comcast mislead him about the speed of his broadband experience and accused the company of breach of contract and false advertising, among other charges. Comcast asked that Hart's lawsuit be stayed so that the FCC could finish its probe. In its motion, Comcast argued that regulation is "unnecessary and unwarranted," but also specifically said the FCC has authority over the matter. "Any inquiry into whether Comcast's P2P management is unlawful falls squarely within the FCC's subject matter jurisdiction," the company stated in its brief. But with that assertion, Comcast appears to undercut a major portion of its argument to the FCC -- that the agency lacks authority to enforce net neutrality principles. Some net neutrality advocates are already pointing out the discrepancy. "Clearly they're talking out of both sides of their mouth," said Gigi Sohn, president and co-founder of Public Knowledge. A Comcast spokesperson denied there was any contradiction "What we have argued in the Hart case is that the FCC believes it has jurisdiction here, and the court should wait to see what action the FCC takes," the spokesperson said. The spokesperson declined to elaborate further on statements in Comcast's brief or the court's ruling. Sohn added that the California judge's decision lends support to the neutrality advocates' argument that the FCC has the authority to decide whether Comcast unlawfully managed traffic. At the same time, federal judges in Washington, who would decide any appeal of the FCC's actions, won't necessarily come to the same conclusion as a federal judge in California. FCC Chair Kevin Martin has said he believes that the agency has the power to take action against Comcast. Martin testified at the Senate in April that no new net neutrality was are needed because the FCC already has authority to regulate broadband services. Earlier this year, Comcast said it will develop a protocol-neutral method of managing traffic. http://www.mediapost.com/publication...&art_aid=86143 F.C.C. Chief Would Bar Comcast From Imposing Web Restrictions Saul Hansell Federal regulators are prepared to take action against sellers of Internet access that want to restrict what their customers can do online. Kevin J. Martin, chairman of the Federal Communications Commission, said Friday that Comcast, the nation’s largest cable company, should be sanctioned because it had interfered with the Internet connections of users who were exchanging files with other people. Mr. Martin’s recommendation is a strong push for network neutrality, the idea that Internet access providers like Comcast should not be allowed to favor some uses of their networks over others. Internet companies like Google and free speech advocates have backed this approach. The cable and phone companies that provide most of the nation’s Internet service have argued that such rules were not needed. They have said that they should be free to run their networks as they see fit, and that there had been no cases of problems with such discrimination. Comcast’s practice of slowing the use of BitTorrent, a method of trading video, music and software files, provides such a case. The practice was intended to prevent frequent file-swappers from clogging up the company’s network. Under Mr. Martin’s recommendation, which would need to be approved by the full commission, Comcast would not be fined. But it would be forced to change its practices and give the commission more details on what it did in the past. Mr. Martin wants to set a standard that will make it difficult for an Internet provider to discriminate against users based on what they want to do online. “The Internet is based upon the idea that consumers can go anywhere they want and access any content they want,” Mr. Martin said in an interview. “When they show they are blocking access to some sort of content, they have the burden to show that what they are doing is reasonable.” Mr. Martin also said Comcast did not explain to its customers what it was doing. “If they are going to put limits on individual customers if you use a certain amount of bandwidth per month or per hour, they have to be willing to tell their customers more about how it works,” he said. But Mr. Martin said the issue went beyond simple disclosure because Comcast’s approach was not tightly related to the problem it said it was trying to solve. For example, BitTorrent users who were not exchanging large files were also blocked. Mr. Martin said that the commission wanted to protect legal activities, and that the rules would not apply to an Internet service that tried to block the unauthorized transmission of copyrighted material or child pornography. Comcast argues that its approach is legitimate, and that the commission does not have the authority to impose any sanctions. “We believe that the network management technique we chose at the time was reasonable,” said Sena Fitzmaurice, a Comcast spokeswoman. She added that Comcast had already said it planned to change its approach to dealing with heavy use. It is developing a system that will slow the Internet connections of people who are moving large amounts of data at busy times. Ms. Fitzmaurice was nonetheless concerned about Mr. Martin’s approach. She asked: “Does this create some broader precedent or authority for the F.C.C. that would be asserted in other cases?” She said that if the action was approved by the commission, the company would have to examine the order before deciding whether to appeal. Spokesmen for Time Warner Cable and Verizon, two other large providers of Internet access, concurred that their preferences would be for the commission to limit its scope to ensuring that providers properly disclose their practices to their customers. Some advocates of network neutrality are hoping that the commission uses this case to establish a broader principle. “The normative message is that it is wrong to block the Internet,” said Tim Wu, a professor at Columbia Law School who is the chairman of Free Press, an advocacy group that filed the complaint about Comcast for which Mr. Martin is proposing a resolution. “The deeper message he’s sending here is that users are sovereign. If two people want to send a file between each other, the carriers are not to get in the way.” Professor Wu said the issues at stake go back to the common-law concept of a common carrier, which defined certain businesses — from blacksmiths to ferries — as so essential to commerce that their owners could not discriminate against any paying customer. These ancient concerns are increasingly relevant to the Internet as an ever-greater share of commerce is conducted online. Companies that sell products or offer content over the Internet have worried that without regulation, the Internet access providers might chose to offer better and faster service to some companies — perhaps those that pay for preferred treatment — than to others. Many are particularly concerned that cable and phone companies, which are in the pay television business, will choose to inhibit the growth of free video over the Internet from sites like YouTube, which is owned by Google. “If it turned out that the system accidentally or deliberately discriminated against online television, that would be anticompetitive because online television competes with Comcast,” said Marvin Ammori, the general counsel of Free Press. Other Internet experts say that Comcast is simply trying to compensate for the limited capacity of its network. On Internet connections delivered over cable systems, there is much more capacity for users to receive information than to send it, so uploading large files can quickly overwhelm the sending capacity. Some are concerned that if Mr. Martin presses these rules, the Internet providers will move away from offering unlimited Internet service. Already Time Warner is testing a system that would impose significant caps on how much its users could download. http://www.nytimes.com/2008/07/12/te...12comcast.html Bell's Internet Throttling Illegal, Google Says Google says the internet is too important to allow Bell or other service providers to act as a 'gatekeeper.' Peter Nowak Google Inc. says Bell Canada Inc. is breaking Canadian telecommunications law by slowing certain internet traffic, and is urging the CRTC to take action against the company. "Bell claims its throttling of peer-to-peer applications is a reasonable form of network management. Google respectfully disagrees. Network management does not include Canadian carriers’ blocking or degrading lawful applications that consumers wish to use," the company wrote in a 15-page submission to the Canadian Radio-television and Telecommunications Commission, which was made public over the weekend. "From consumer, competition and innovation perspectives, throttling applications that consumers choose is inconsistent with a content and application-neutral internet, and a violation of Canadian telecommunications law, which forbids unfair discrimination and undue or unreasonable preferences and requires that regulation be technologically and competitively neutral." Net neutrality at stake The Mountain View, Calif.-based search engine giant made the comments as part of an investigation by the CRTC into Bell's limiting of download speeds of peer-to-peer applications such as BitTorrent. Bell first started limiting the speeds — known as throttling — of its own Sympatico internet subscribers in November, then extended the practice to its wholesale customers in March. The company said growing usage by a small number of peer-to-peer users was threatening to cause slowdowns for its overall customer base. That move prompted a complaint with the CRTC from the Canadian Association of Internet Providers, a group of 55 small ISPs who rent portions of Bell's network, and sparked the "net neutrality" battle over who controls the internet in Canada. Aside from Google, CAIP has attracted the support of thousands of users, consumer groups and other technology firms including internet calling provider Skype. Bell, on the other hand, saw fellow large ISPs Telus Corp. and Rogers Communications Inc. come to its defence last week. Google said that in order to keep consumer choice and innovation alive on the internet, the CRTC must force Bell — and eventually other large ISPs — to end its throttling practices. "The internet is simply too important to allow them to act as such a gatekeeper," the company said. "Protecting end user choice is the central issue in this proceeding, but also a much larger issue. It goes to the heart of the internet and how it acts as an extraordinary platform for innovation and fair competition." A spokesman for Bell said the company plans to respond in its next submission to the CRTC, which is due on Thursday. Telus, which says it does not limit the speeds of its internet subscribers, in its submission argued that Bell is within its rights to change how it delivers services to its wholesale customers. The notification of network changes required by the Telecommunications Act apply only to other network carriers, a status many of CAIP's members do not have. "Customer relations matters that involve no network interface changes do not engage the network change notification requirements, and it would be inefficient and unwieldy to create new requirements in this regard," wrote Craig McTaggart, director of broadband policy for Telus. The company argued there is no discrimination because Bell is treating its own Sympatico and wholesale customers the same. Telus also discounted arguments made by other parties who have made submissions to the CRTC, including Skype, that the traffic-inspection technology used by Bell violates users' privacy. McTaggart noted that the current dispute should be limited specifically to the question of whether Bell is violating its wholesale agreement terms and should not be extended to other network owners, such as Telus. "To the extent that this dispute may raise any policy issues relating to retail internet access services, Telus would expect the commission to initiate a proceeding by way of public notice/notice of consultation before establishing new rules of general application," he wrote. "However, in Telus' view, no such proceeding is necessary." Other internet uses not affected: Rogers Rogers, which also slows peer-to-peer applications, disputed claims by CAIP that such throttling affects services such as voice over internet protocol (VoIP) and virtual private networks (VPN). "This equipment, therefore, does not impact any other traffic such as VoIP, VPN and other online streaming applications because their signatures are different," wrote Ken Engelhart, senior vice-president of regulatory affairs for Rogers. "There is therefore no reason why VPN or other encrypted traffic would be affected." Engelhart also reiterated that Rogers does not throttle the downloading of files over peer-to-peer applications — it only slows uploading. However, because the download speeds of many applications are tied to the upload speed, the downloads are effectively slowed as well, which is the fault of the application's provider. "Of course, because some P2P applications (BitTorrent for example) restrict download speed to the maximum upload speed provided by the user, a customer’s P2P download speed can be limited by the upstream cap, but that is a result of the business decision taken by the P2P applications provider," he wrote. Bell has also been supported by network equipment maker Cisco Systems Inc., which said the CRTC should refrain from imposing network management regulations. Aside from Google and Skype, parties who have made CRTC submissions supporting CAIP include: the University of Western Ontario; the Canadian Internet Policy and Public Interest Clinic; the Union des consommateurs; Primus Telecommunications Canada Inc.; the British Columbia Civil Liberties Association; and the Canadian Advanced Technology Alliance, which counts network equipment maker Alcatel Lucent among its members. The CRTC expects to rule on the CAIP-Bell dispute in September and has said a larger investigation into net neutrality principles is likely. http://www.cbc.ca/technology/story/2...tech-crtc.html No Anti-BitTorrent Precedent Achieved in Canada enigmax Following comments which suggested that the closure of QuebecTorrent was “a major victory” for the recording industry, we have a statement from the owner of the site to balance things up. The smaller battle against this site is over, the larger one against Canadian BitTorrent sites in general appears unaffected. Yesterday we reported that, following a legal battle against 31 media industry organizations, the 85,000 member QuebecTorrent tracker had been forced to close. The site complied with a permanent injunction handed down by the Superior Court of Quebec. The recording industry, on the other hand, dropped its claim for $200,000 damages. Solange Drouin, managing director of ADISQ, an organization that represents the music industry in Québec, said in a response to the shutdown: “We wait to see the result of this first lawsuit. We hope that this result will have a dissuasive effect. If it is not the case, it is possible that we will engage in actions against similar sites.” Some may be under the impression that the closure of QuebecTorrent is a big legal victory for the entertainment industry. Although undoubtedly the media companies will be delighted that the site has been shuttered, due to how the case ended we’re not really much closer to the answer of torrent site legality in Canada. Instead of mounting a poor defense, in the end QuebecTorrent chose not to mount one at all. The site’s lawyer, Sébastien Leblond, said that part of the reason for accepting the injunction to close the site was that Doditz, the site admin, wanted to avoid the case setting a bad anti-torrent legal precedent: “Instead of going to war without the proper equipment, we decided not to hurt the big case,” said Leblond. In comments to the National Post, Michael Geist, a law professor at University of Ottawa, said he wasn’t surprised that 28 year old Brûlotte decided not to fight: “The prospect of both the legal fees and the big organizations on the other side who are prepared to spend millions of dollars on litigation has an enormous chilling effect. Invariably, individual users, web sites, cave in the face of these kinds of legal demands.” So, the entertainment might make it seem that the outcome of this case is a huge victory, the reality is more nuanced. Here is a message from ‘Doditz’ which should hopefully shine some light on what actually happened with the case: Statement from Sébastien Brûlotte, aka ‘Doditz’, owner of QuebecTorrent Quote:
Canadians Skirt Law to Watch TV on the Web Viewers north of the border turn to illegal options because legal means aren't available: study Canadians are turning on, tuning in and watching traditional TV shows on the Internet often using underground ways to access American programming, says a new study. There's less online content available from Canadian broadcasters than is available from U.S. broadcasters, study author Alan Sawyer said. The lack of available content is resulting in Canadians using underground activity to get the TV shows they want to see online, he said. "A very important thing to realize is that every television program that is broadcast is available in most cases in illegal peer-to-peer broadcasting," said Sawyer of Toronto-based Two Solitudes Consulting. "Canadians do an awful lot of that. I believe one of the reasons that Canadians do an awful lot of that is that they are not being offered sufficient alternatives." Traditional TV audiences are eroding as viewers, especially younger ones, turn to the Internet and mobile devices for content, said Sawyer, who noted the popularity of video-sharing site, YouTube. Major U.S. broadcasters are making between 52 per cent and 80 per cent of their non-news evening and primetime programming available in full-episode format on-demand on their websites, his study said. CTV offers 24 per cent and Global offers 15 per cent, says the study, which was done in January. "Canada's private French-language broadcasters offer much less broadcast-related video content than their English-language counterparts, but offer considerably more programming on a broadcast-broadband simulcast basis," the study found. Sawyer's study is called, Changing Channels: Alternative Distribution of Television Content, and was done for the Canadian Radio-television and Telecommunications Commission (CRTC). The federal broadcast regulator will use the study for background information as it prepares for a hearing into new media next year, he said. "In my opinion, Canadians aren't watching a lot of broadcast television content online because there's not a lot of it available," he said. That means a lot of advertisers haven't started to focus on it, he said. However, Sawyer said because a network buys a show's broadcast rights, it doesn't necessarily give it the right to put the show on the Internet. Canadians also can't use major U.S. TV network sites to watch shows online due to something called "geo-blocking," he said. Media companies use this practice to determine a person's location based on where his computer is accessing the Internet. "So if you are coming from Canada and try to go to ABC's website and you try to watch video there, it's going to say, 'Sorry you're not coming from within the United States. You can't watch this.' " It's usually done to save money because of the cost of streaming content over the Internet, Sawyer said. There's currently a legal battle in the United States that's pitting YouTube against Viacom Inc. and other copyright holders, who have filed a US$1-billion lawsuit against the popular online video-sharing service. Viacom shows include Comedy Central's "The Daily Show with Jon Stewart" and Nickelodeon's "SpongeBob SquarePants" cartoon. http://timestranscript.canadaeast.co...article/347049 FCC to Begin White Space Wireless Broadband Field Tests Matthew Lasar Over the next four weeks, the Federal Communications Commission will conduct twelve field tests of TV white space devices—hardware that can transmit and receive broadband over unused TV channel frequencies. And it looks like the FCC may have taken up the offer from ESPN and the National Football League to let the Commission test these apps in a sports stadium. The agency's schedule says that the last two demos involve "wireless microphone testing" and will be conducted in a "sports venue" and an "entertainment venue." As Ars reported last month, ESPN/NFL are among the many groups raising a fuss over the threat that they say unlicensed broadband devices could pose to wireless mic use. On June 26th they filed comments with the FCC offering to let the agency's Office of Engineering Technology (OET) run tests on the prototype gadgets in nearby sports stadiums. "Wireless microphones are vital to operations at NFL games," the ESPN/NFL wrote. "We believe it is essential that field-testing studies reflect actual, true-to-life conditions, including testing of wireless microphones and other wireless audio equipment used at these games." The ESPN/NFL filing offered two Maryland locales near the FCC's DC headquarters for the wireless mic challenge: Baltimore's M&T Bank Stadium and the Federal Express Field in Landover. But the FCC has not disclosed whether it will go with these venues for the tests. The rest of the field observations will take place in Maryland, with the exception of one at the FCC's DC headquarters. They'll commence next week in Patapsco Valley State Park and the Thomas A. Dixon, Jr. Aircraft Observation Area of the Baltimore/Washington International airport. Next will come demos at residences in Ellicot City and College Park. After the FCC HQ test, there will be five more tryouts in rural and semi-rural areas (two parking lots and a creek near Harp Hill Road). Last but not least will come the wireless mic ordeals. The Commission says it wants all these experiments completed over the course of four weeks. At least two of these locations appear to have come from recommendations made by the Association for Maximum Service Television (MSTV): the Harp Hill Road locale and another along Route 17. As the TV industry's lobbyist on tech issues, the MSTV has been a fierce opponent of unlicensed broadband devices. But some of its recent filings suggest that the group has moved past outright opposition and is now in favor of requesting conditions that will restrict and weaken the hardware's reach. On July 3, three MSTV execs, one National Association of Broadcasters lawyer, and a CBS veep piled into the office of FCC Commissioner Michael Copps to talk to him and two of his legal advisers about the white space docket. They conceded that geolocator devices could potentially protect TV stations from white space app interference. But, "the FCC must also focus on protections against adjacent channel interference, requirements to assure an adequate database to support geolocation methodologies, robust certification procedures, and powerful and effective policing mechanisms," they warned. These TV white space device field tests will be open to the public, the FCC says, and the Commission will offer updates on any changes in the schedule. http://arstechnica.com/news.ars/post...eld-tests.html Spanish RIAA Sues and Wins Blog Comment Case Julio Alonso, the founder of the leading Spanish blog network Weblogs SL, has been fined €9,000 plus legal costs for comments made by other people on his personal blog. What makes the story more interesting is that Alonso was sued by SGAE, (the General Society of Authors and Publishers), the Spanish equivalent of the RIAA. The post that ultimately led to the court case was made way back in 2004, and was titled SGAE=Thieves. That post then hit the top of the Spanish version of Google for the term “ladrones” (Thieves). It’s not clear from the email Julio sent me (nor the links provided) exactly what the comments were, and as of July 4 they were removed per the court order. What I did make out (with some Google translate help) is that the court found that the 22 comments posted by readers in response to that post had damaged the ‘honor’ of SGAE. Alonso still has the right to appeal against the sentence. The questions then raised: is it safe for anyone is Spain to offer open comments on a blog? and is this even a legal under European law? If you speak Spanish, you can follow the case on Julio’s blog here, and I’ll be keeping in touch with Julio as the appeal is put together (I’ve been following Weblogs SL since the early Blog Herald days). I’m not sure if there is anything we can do from outside of Spain, but I’m sure many will join me in offering moral support to Julio at this time. http://www.inquisitr.com/1504/spanis...-comment-case/ MediaSentry's Statements in Michigan Administrative Case Contradicted by Prior Statements in UMG v. Lindor Ray Beckerman You may recall that several days ago we posted some correspondence between MediaSentry's lawyer and Michigan's Department of Labor and Economic Growth, in connection with administrative proceedings in Michigan over MediaSentry's being engaged in investigation without a license. MediaSentry's lawyer replied that Quote:
Excerpts from 3 documents in UMG v. Lindor denying that MediaSentry relied on its technical expertise. [Ed. note. These people will say ANYTHING. Now let's hope that the Lindor court finds out about what they've been saying in Michigan, and the Michigan authorities find out what they've been saying in Brooklyn. -R.B.] "Probable Cause" Hearing Against MediaSentry NewYorkCountryLawyer RIAA sidekick MediaSentry's "illegal investigation" problem, which surfaced the other day when it got caught in a lie in Michigan (or got caught telling the truth after having told 2 years worth of lies in Brooklyn), has taken another turn for the worse. We learned today from court papers filed in North Carolina, in one of the cases targeting NC State students in Raleigh, that the North Carolina Private Protective Services Board has scheduled a Grievance Committee hearing to determine whether there is probable cause to investigate an alleged violation of the law by SafeNet (formerly known as MediaSentry). Fortunately for MediaSentry, they won't have to testify under oath, according to the notice (PDF). http://news.slashdot.org/article.pl?.../07/12/0240204 MEPs Back Contested Telecoms Plan European politicians have voted in favour of amendments to telecoms law which campaigners say could be used to curb privacy online and file-sharing. Digital rights groups in Europe have formed a loose coalition to highlight their opposition to the amendments. But MEPs have denied that the amendments are aimed at throwing file-sharers off the net. MEP Malcolm Harbour, who helped oversee the so-called Telecoms Packet, said it was "about improving users' rights". The vote on whether to approve the Telecom Packet itself, which is a raft of laws aimed at harmonising European telecoms regulation, takes place in September. "There has been a great deal of dismay in the committee at the interpretation being put on these amendments," he told BBC News. "They have nothing to do with copyright enforcement. The interpretation of them is alarmist and scare-mongering and deflects from the intention which was to improve consumers' rights," he said. But campaigners say one of the amendments makes it easier to enforce the controversial "three strikes" law which the music industry is keen to use in order to clamp down on file-sharers. Soviet net It would see users receive two warnings if they download copyright material without permission, followed by a complete web ban. Tentative steps towards such a policy are already underway in the UK with the BPI (formerly the British Phonographic Industry) policing file-sharing sites and informing ISPs of people downloading material illegally. Virgin Media has sent about 800 warning letters to users and the BPI is threatening to take other ISPs to court if they fail to join the campaign. France is also about to enact laws that penalise persistent file-sharers. MEPs voted against Europe-wide legislation to tackle the issue in April 2008. Campaigners say the changes to the Telecom Packet legislation have more fundamental implications for net freedom. Another amendment allows governments to decide what software can be used on the web. The Foundation for a Free Internet Infrastructure (FFII) warned that they could create a "Soviet internet" on which only software and services approved by governments would be allowed to run. "Tomorrow popular software applications like Skype or even Firefox might be declared illegal in Europe if they are not certified by an administrative authority," said a FFII spokesman in a statement. But Mr Harbour claimed the legislation has entirely more innocent intentions. "It is about new provisions so that users can find out about new services. It will make price comparison sites easier to set up, it will force regulators to give equivalent access to disabled users and enhance emergency services with caller location," he said. http://news.bbc.co.uk/go/pr/fr/-/1/h...gy/7495085.stm One Subpoena Is All It Takes to Reveal Your Online Life Saul Hansell Whenever questions are raised about privacy, big online companies talk about how benign their plans are for using data about their customers: Much data is anonymous, they say, and even the information that is linked to individuals is only meant to offer users a more personal experience tailored to their interests. They never talk about subpoenas. Yet in the United States, one of the biggest privacy issues is what information about people can be revealed through a court process, either as part of a criminal investigation or in some sort of civil dispute. This article I wrote in 2006 gives some examples. The issue came up again last week when Google was ordered by a court to turn over records of activity on YouTube, including the user names and Internet Protocol (IP) addresses of people who watched videos. A judge agreed with Viacom that the records could assist its case arguing that YouTube has infringed on its copyrights. There is nothing special about the way the law treats the Internet here. All sorts of records, from your health club dues to your auto repair history, can be drawn into all manner of legal proceedings, and the records of Internet companies are generally no different. There is a higher standard for the disclosure of the content of e-mail messages under the Electronic Communications Privacy Act, but there are many ways for investigators to get access to e-mail as well, particularly if the user has already read it. (The law has traditionally given greater protection to a sealed envelope in a post office than to an opened letter sitting on a person’s desk.) But Internet companies are different from other businesses that keep records about their customers. A person’s activity online represents an unusually broad picture of his or her interests, transactions and social relationships. Moreover, it is the nature of computers to keep records of all of the bits of data they process. Much of this data is spread among various different companies and their servers. But these puzzle pieces can be put together. This is the key fact that so much of the discussion about I.P. addresses skips past. The way the Internet is set up now, an I.P. address, by itself, doesn’t identify an individual user. But an I.P. address can be traced to a specific Internet service provider, and with a subpoena, the Internet provider can be forced to identify which of their customers was assigned a particular I.P. address at a particular time. That is how the recording industry has been identifying and suing people who use file sharing programs. Viacom says that it isn’t going to use the information from Google to sue individual YouTube users for copyright infringement, but there is nothing under the law to stop it from doing so. It’s easy to skip past this part of the privacy debate. After all, the overwhelming majority of log files at Internet companies are boring and meaningless. But every now and then there is a tidbit that has meaning to someone: It could be a clue to solve a horrible crime. It could be a fact that could tip the balance in a dispute over, say, child custody or an employment contract. Or it could be a salacious detail that could embarrass — rightly or wrongly — a public figure. All this raises questions that I think Internet companies, privacy regulators and Congress would be wise to take stock of: • How much data should be retained by Internet companies and for how long? • What should Internet users be told about what sort of information could be disclosed about them in response to a legal action or government request? • Should there be new laws that define more clearly what the standards are for disclosing online surfing and searching activity? There is certainly a history of laws that create special privacy regimes for various domains, such as financial and medical records. Congress even protected records about what movies you rent and television channels you watch. Aren’t the records of where you surf, and for that matter, the videos you choose to upload to YouTube, worth at least as much protection? http://bits.blogs.nytimes.com/2008/0...rts/index.html Viacom and Google in Stalemate Over Shielding Identities in YouTube Data Miguel Helft A week after Google and Viacom both said they hoped to agree to make YouTube viewing data anonymous before Google hands the information to Viacom, no agreement has been signed. Neither company would discuss what’s holding things up. But in a statement late Friday, Google’s senior litigation counsel, Catherine Lacavera, clearly pointed the finger at Viacom: “If Viacom refuses to allow us to anonymize viewing history, we will seek review by the court.” In the meantime, Viacom has come under sharp criticism for saying that it never asked for information that could expose individual users’ viewing’ habits. Ultimately, however, Google may have more to lose if the matter is not resolved. Several privacy advocates have pointed out, that Google — and other Internet companies, for that matter — are putting people’s privacy at risk by collecting and retaining so much data about users. Google has insisted that it has strong privacy safeguards and that it collects the data to better serve users. In the meantime, a third party in the conflict, the lawyer representing the English Premier League in a parallel class action suit against YouTube, said he remained confident that the issue would be worked out soon. “I still believe that there will be an agreement,” said the lawyer, Louis Solomon, a partner at Proskauer Rose. “Unfortunately, this is how long the process takes.” But Mr. Solomon also hinted that there are some unresolved issues. “We are going to be anonymizing names, we are going to be anonymizing I.P. addresses, but we do want the data that we do get to be usable to make our case,” he said, refusing to be more specific. Late Friday, Viacom spokesman Jeremy Zweig responded to Google’s finger-pointing with the following statement: “Viacom suggested the initiative to anonymize the data, and we have been prepared to accept anonymous information since day one. We hope that Google will turn its focus back to anonymizing the data they are required to deliver, and spend less time making statements about why they won’t get it done.” http://bits.blogs.nytimes.com/2008/0...ata/index.html Fact Checking Viacom's New Statement on Privacy and YouTube Viacom has a statement on its site now about the YouTube litigation it probably hopes will reassure you. Leaving out the anti-Google trash talk, it reads like this: Quote:
Quote:
Viacom may think they can say whatever they wish about what they asked for, since the details of their motion to compel were filed in a sealed memorandum. But we're not stupid, and we can read the Order, where the judge tells us what Viacom asked for. Let's review. Here's the part of the Order about the logging data: Quote:
Quote:
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No one is forcing Viacom to put their junk on the internet, you know. They can sell it on DVDs or put it on TV or in whatever ways they used to. But if they do want to enter the internet space, at least they should learn how to behave in the culture in the new medium, instead of trying to make it change to be like its old business model. Hire some geeks, Viacom, will you? Someone who has a blog or a Facebook account? It will shorten your educational process and remove you from This YouTube School of Hard Knocks. I know Viacom intended the hard knocks to be for Google, but it has seriously boomeranged to where we are now presented with the bemusing picture of Viacom knocking its own head really, really hard. Here's how Viacom can determine whether people like to use YouTube more for noninfringing use or for copyright infringement, and it's a way that doesn't require Google to turn over data on all the human beings who have ever viewed a video there. Here's 2006 a video that has been viewed 10,289,983 times. Just a goofy and creative guy dancing his goofy dance-like-a-3-year-old all over the world. Love the elephants. And the kids in Rwanda. Here's the 2008 version, which is even more adorable, because lots more interesting places were visited and more people joined in the dancing with Matt Harding. Love you, Stockholm. Love the monkeys in Madagascar, dancing in the tulips in the Netherlands, and the flying is space moves in Nevada. Ah, Paris! The new one has been viewed already 5,032,204 times in less than a month. It's all over the web, not just on YouTube, so even that number is just a hint of the true numbers. Matt explains how he did the video here. [Part 2, the part with the penguins; Part 3.] Yes, he tells more about the rock in Norway. He first posted it on his own site, before YouTube even existed. Bloggers just mirrored it and it grew and grew and finally Cadbury asked him to do a video to use with some gum it has, Stride. So they paid for the 2008 video trip, and it ended up on YouTube. It's now the the world's most popular video on the web. The International Herald Tribune calls 'Dancing' a near-perfect piece of Internet art. Viacom complained about Rugrats. So here's the results page of searching for Rugrats, and as you can see, the highest viewer number for a short 1.40 minute clip is 997,313 on a clip that's been up for a year or so. Me too. I'd rather watch Matt too. But let's face it, if I had a taste for Rugrats, a 1.40 minute clip might get me started, after which I might visit Viacom's site and even pay. Wake up, Viacom. When they said the Internet changes everything, it was true. What that means is, you have to change too. And copyright isn't the *only* right that exists on planet earth. http://www.groklaw.net/article.php?s...80709044510241 Viacom vs. YouTube: Beyond Privacy As Viacom is granted access to YouTube user records, a bigger threat to user-generated sites emerges: The law is increasingly siding with rights owners Catherine Holahan Just before the holiday weekend, media giant Viacom (VIA) won a legal victory over YouTube that set off fireworks across the Internet. The July 1 ruling gave Viacom access to records of what people watch on YouTube, which is owned by Google (GOOG) and is the most popular video site on the Web. Bloggers and consumer advocates warned of the potential privacy violations, particularly if Viacom uses the information to track down and sue people who watch copyrighted video clips on the site. But there's an even larger issue at stake than privacy: The legal tide may be turning against many of the most popular companies on the Web. Numerous Internet companies, from YouTube and Flickr (YHOO) to eBay (EBAY) and MySpace (NWS), have built their success on the participation of their users. In the past, the courts have been quite clear that if those users violate laws—by posting copyrighted video of Viacom's Comedy Central shows on YouTube, for example—the Web company is not liable. Increasingly, however, the courts are siding with rights owners and ruling that Web sites are responsible for illegal submissions. The new legal position, if it becomes the standard for the industry, will have profound implications for Internet companies everywhere. They may have to change their business practices to proactively screen out user submissions that could violate laws. That could dampen the growth of Web sites that depend on user submissions, and, in some cases, make their business models untenable. Are Takedown Rules Enough? The Viacom legal victory in its ongoing $1 billion copyright infringement suit against YouTube is the latest example of a judge ruling in favor of content holders. Earlier this week, eBay lost its third court case with luxury brands concerning counterfeit items listed for sale by eBay's users (BusinessWeek.com, 7/1/08). A French judge ordered eBay to pay Louis Vuitton handbag manufacturer LVMH (LVMH.PA) $61 million in damages. In doing so, the judge rejected eBay's argument that it is not responsible for illegal items sold by users because it provides tools to request removal of infringing goods and takes them down once notified. The French court's decision is not binding in the U.S., and European courts, in general, have been more sympathetic to rights holders' arguments against U.S. technology companies. However, lawyers with cases in U.S. courts are likely to argue the international precedents should, at least, influence the thinking of American judges faced with their own cases challenging whether takedown rules are sufficient to protect sites against liability. Sympathy for Rights Owners There are several reasons why the courts may be growing more sympathetic to rights owners' arguments. First, companies such as YouTube increasingly look like they're cannibalizing the revenues of content creators like Viacom. In the past, YouTube and Google could make a "fair use" legal argument because YouTube typically shows clips—not whole episodes. But now, content creators are trying to make money from appending ads to roughly the same clips and distributing them on their own online networks. Just take a look at all the ad-supported clips on Hulu, News Corp. (NWS) and NBC Universal's joint venture. Second, the Digital Millennium Copyright Act (DMCA) may prove less of a legal shield for Web companies than it has in the past. Enacted in 1998, the law essentially protects Web sites from liability for their users' actions (BusinessWeek.com, 5/28/08), provided they remove illegal material once they are formally notified of its appearance on their site. The protections in the DMCA are among the main reasons sites across the Web—from social networks to media sites including BusinessWeek.com (MHP)—can solicit an array of user contributions. In spite of the DMCA's impact on the Web, it is still a relatively young law, say legal experts. It is still being challenged, and a long body of case law firmly establishing its breadth and limits has yet to be established. "The law is still developing in this area and that is probably going to happen for a while," says Jennifer Urban, director of the USC Intellectual Property & Technology Law Clinic. Judges and lawmakers are typically more sympathetic to arguments that protect companies from rights holders' lawsuits when their industries are still nascent. Few want to squash a developing industry and few rights holders want to spend thousands to millions suing a company that can't offer them substantial compensation. In recent years, however, many Web sites have started to sell ads against their user-generated content, giving rights holders the ability to seek higher damages and argue that the young industry has grown up. Rethinking Users' Latitude Already, there have been rulings limiting the scope of the DMCA. The decision against peer-to-peer file-sharing company Grokster in 2005 created case law that made sites more vulnerable to lawsuits. Under the ruling, sites could be liable for users' actions if they took measures that deliberately encouraged users to do illegal things. In its lawsuit, Viacom is arguing that YouTube is "inducing" users to commit illegal actions by highlighting copyrighted videos in areas such as YouTube's most-watched section. Viacom also argues that YouTube wants illegal content to stay on the site since it potentially profits from the additional traffic such content draws in. "We don't know if the court is going to buy that argument, but the consequences are enormous," says Electronic Frontier Foundation senior staff attorney Matt Zimmerman. "It will depend on the way the ruling comes down." Viacom has been clear about its plans for YouTube users. The company says it has no plans to go after people who watched a few episodes of The Daily Show or The Colbert Report. "The information we've requested will be used to support Viacom's claims that Google and YouTube are infringing its intellectual property," says Mike Fricklas, Viacom's general counsel. "I also can say with complete certainty that we will not use any of the data provided to pursue individual end users." As for the DMCA laws, Zimmerman and Urban both believe they should provide protection to YouTube. After all, it takes down material once it's notified and, according to Google, tries to keep the same infringing material from being posted again. Ultimately, however, the judge will have to decide whether Google or YouTube is liable. And, if Judge Louis Stanton rides the current wave coming out of Europe, Web sites may have to seriously rethink how they manage their users. http://www.businessweek.com/technolo...073_435740.htm The Government and Your Laptop The Department of Homeland Security is routinely searching laptops at airports when Americans re-enter the United States from abroad. The government then pores over or copies the laptop’s contents — including financial records, medical data and e-mail messages. These out-of-control searches trample the privacy rights of Americans, and Congress should rein them in. There have been widespread reports of the government searching — and often seizing — laptops, BlackBerrys, iPhones and other portable electronic devices at airports. It is not clear how often these searches occur, and the government will not say. The Association of Corporate Travel Executives says that of 100 people who responded to a survey it conducted this year, 7 said they had had a laptop or other electronic device seized. This goes well beyond examining a piece of luggage. Because of the enormous amount of private information people keep on their laptops, the searches are more akin to rifling through someone’s home and reading every letter, financial record and personal journal. At a Senate hearing last month, civil liberties, civil rights and business groups testified about the harm the program is doing. Some groups have additional concerns. Businesses object that their trade secrets are being jeopardized. Lawyers and journalists say the government should not have access to their confidential communications with clients and sources. Muslims contend that they are being singled out for particularly intrusive searches. Laptop owners rightly complain that the program violates the Fourth Amendment ban on unreasonable searches and seizures. Their legal objections, however, have not fared well. In April, the United States Court of Appeals for the Ninth Circuit in San Francisco upheld a laptop search at Los Angeles International Airport. After this disappointing decision, Congress needs to act. Congress should pass a law that allows the government to look at data on laptops and other portable electronic devices only when it has a reasonable suspicion about the specific person being searched — something the law does not currently require. To copy data or seize devices, the government should be required to show probable cause, an even higher standard. Congress should force the government to spell out the rules governing its searches and report on how many it conducts. The law should also require the government to destroy data that does not lead to criminal charges. The government has the right to take reasonable steps to control what comes into the country, but the laptop-search program’s invasions of privacy go far beyond what is reasonable. http://www.nytimes.com/2008/07/10/opinion/10thu3.html Swedes Massively Protest Wiretap Law Ernesto In June the Swedish parliament passed a controversial surveillance law that gives authorities a mandate to read all email and listen in on all phone calls without warrant or court order. In response to the law, The Pirate Party organized rallies, bloggers and journalists turned into activists, and even Google decided to relocate their servers. The aftermath of the vote on wiretapping legislation has been turbulent, to say the least. Bloggers have not wasted a minute in their criticism, mainstream media eventually caught up and the newspapers are now running stories and editorials every day. Various viral campaigns have flourished along with grassroots activism and The Pirate Party has hauled full sails to catch the wind that will blow them straight into European Parliament during the elections of 2009. That’s not all. Google and former public telecoms company Telia moved their servers out of Sweden. Belgium says it will sue Sweden since Belgian citizens may be wiretapped without any apparent reason. Anne Ramberg, secretary-general of the Swedish Bar Association, has called for challenges to the law in Swedish and European courts and similar demands have been heard from several other interest groups, like the Journalist’s Union. It’s FRA hunting season this summer in Sweden! It is now obvious that the legislation was a deal made between the leaders of the four government parties without full support, even from within their own ranks. Active party members resigned in protest, like Fabian Norlin of the Moderate party who quit on June 24 and instead launched FRApedia, a Wiki covering everything about the law and the authorities. Meanwhile, the people responsible have not uttered a word in defense of the legislation. They haven’t even tried to justify it. In fact, the few quotes that were made referred in smug terms to the nature of the debate and the debaters. Prime Minister Fredrik Reinfeldt said “It would be best for everyone if the debate would calm down.” Others have called your-rights-online-bloggers “spirited amateurs”, sparking even more fury. During the time since the vote, the Members of Parliament have appeared everything from sad through to ridiculously stupid when trying to handle the turbulence. A representative of the “ridiculous” faction was Liberal Party member Gunnar Andrén who wrote a very upset internal email claiming he hadn’t been told by party colleague Camilla Lindberg that she was going to vote against the bill (she was the only member of any of the four government parties that voted against the bill and received much appreciation and media by it). His email was leaked to the press by another party colleague and Andrén was later heard on a recorded phone-call exclaiming that his secrecy of correspondence had been broken and that it was “Gestapo methods”. Dude, you just voted for a bill that allows all emails to be read and all phone calls to be recorded. Live with it! The big shift in public opinion came at the time of the vote when the blogs, who had pushed on the issue for many weeks before the vote, finally found the mainstream media with them, and with that the power to reach the masses. Some 6.6 million emails were sent to the Members of Parliament through an online petition created by daily newspaper Expressen which allowed easy protests to the members. Göran Petterson of the Moderate Party (until 2006 an military officer and one of those in favor of the FRA legislation) wrote on his blog: “Email is a great way to communicate with my voters but then you can’t do like Expressen has done now. […] Now, normal emails from the citizens are drowning in these.” Clearly, he didn’t understand his voters were trying to communicate with him, sending him a clear message of what they thought of him and his party. This Thursday, rallies were initiated in Malmö and Stockholm by The Pirate Party which gathered more than 2000 anti-FRA protesters. They were in fact parties rather than protests, celebrating that Sweden has become a banana republic. As in the protests before the vote in June, the parties’ youth organizations stood side by side fighting the FRA, all ideological differences set aside for what may be one of the most important issues in their political careers. In Malmö, Peter Sunde of The Pirate Bay spoke at the rally saying “the FRA bill is unnecessary, ineffective, unwanted and last but not least, expensive. The government should listen to the people, as they cannot replace us. However, we have the power to change the government.” Meanwhile, in Stockholm, Maria Wetterstrand of the Green Party promised that an abolishment of the FRA bill would be one of their demands in order to form government with The Social Democrats after the elections 2010 while Alice Åström of the Left Party promised to motion this fall to give members of the government alliance parties the possibility to break up the legislation. Yesterday, the annual Swedish political gathering in Almedalen began, where ministers, parliament members, journalists, pundits, lobbyists and interest groups traditionally meet during a week on the island of Gotland. The government thought that putting the FRA vote at the back of the spring schedule would make it go unnoticed. Instead, it’s the only current political hot topic as the Almedalen week is approaching with the Pirate Party in full presence on site to further push the agenda. http://torrentfreak.com/swedes-massi...ap-law-080707/ The New FISA Compromise: It's Worse Than You Think Timothy B. Lee Telco immunity is the icing, not the cake Last month, the House of Representatives passed the FISA Amendments Act of 2008, Congress's latest response to President Bush's demands for expanded eavesdropping authority. The Democratic leadership, seemingly intent on avoiding real debate on the proposal, scheduled the final vote just a day after the bill was introduced in the House. Touted by Democratic leaders as a "compromise," it was supported almost unanimously by House Republicans and opposed by a majority of Democrats. The 114-page bill was pushed through the House so quickly that there was no real time to debate its many complex provisions. This may explain why the telecom immunity provision has received so much attention in the media: it is much easier to explain to readers not familiar with the intricacies of surveillance law than the other provisions. But as important as the immunity issue is, the legislation also makes many prospective changes to surveillance law that will profoundly impact our privacy rights for years to come. Specifically, the new legislation dramatically expands the government's ability to wiretap without meaningful judicial oversight, by redefining "oversight" so that the feds can drag their feet on getting authorization almost indefinitely. It also gives the feds unprecedented new latitude in selecting eavesdropping targets, latitude that could be used to collect information on non-terrorist-related activities like P2P copyright infringement and online gambling. In short, the FISA Amendments Act of 2008 opens up loopholes so large that the feds could drive a truck loaded down with purloined civil liberties through it. So the telecom immunity stuff is just the smoke; let's take a look at the fire. The importance of judicial scrutiny The most fundamental question in the FISA debate is whether judicial oversight will be required when the government spies on international communications originating on American soil. FISA has never limited spying on purely foreign communications, but under current law, the government must obtain court approval to tap a phone line or fiber optic cable in the United States, even if the other end of the communication is abroad. An application for a FISA warrant must specify the person or organization being targeted and present evidence that the target is an "agent of a foreign power," such as the Chinese government or Al Qaeda. The Bush administration has chafed at these restrictions, insisting that the president has the inherent authority to eavesdrop on suspected terrorists without court oversight. Director of National Intelligence Mike McConnell argues that that the FISA process is so cumbersome that it impedes the intelligence community's efforts to spy on terrorists. Civil libertarians disagree, noting that FISA sets a lower bar for approving surveillance than the process for obtaining ordinary criminal warrants. And in emergency cases, FISA allows the government to begin spying immediately and seek a warrant after the fact. Most importantly, civil liberties groups emphasize that without judicial oversight, there is no way to know if the government is respecting any limits that Congress establishes. Consider, for example, the case of National Security Letters, administrative subpoenas that the Patriot Act allows the FBI to issue without court oversight. Last year a government audit last year found hundreds of cases in which the FBI had issued NSLs without following even the permissive rules of the Patriot Act. Civil libertarians warn that similar corner-cutting is inevitable if the NSA is allowed to choose eavesdropping targets without judicial scrutiny. No individual warrants for international calls When it comes to judicial oversight of domestic-to-foreign calls, the legislation the House passed last month is an unambiguous victory for the White House and a defeat for civil libertarians. The legislation establishes a new procedure whereby the Attorney General and the Director of National Intelligence can sign off on "authorizations" of surveillance programs "targeting people reasonably believed to be located outside the United States." The government is required to submit a "certification" to the FISA court describing the surveillance plan and the "minimization" procedures that will be used to avoid intercepting too many communications of American citizens. However, the government is not required to "identify the specific facilities, places, premises, or property" at which the eavesdropping will occur. The specific eavesdropping targets will be at the NSA's discretion and unreviewed by a judge. Moreover, the judge's review of the government's "certification" is much more limited than the scrutiny now given to FISA applications. The judge is permitted only to confirm that the certification "contains all the required elements," that the targeting procedures are "reasonably designed" to target foreigners, and that minimization procedures have been established. Crucially, there appears to be no limit to the breadth of "authorizations" the government might issue. So, for example, a single "authorization" might cover the interception of all international traffic passing through AT&T's San Francisco facility, with complex software algorithms deciding which communications are retained for the examination of human analysts. Without a list of specific targets, and without a background in computer programming, a judge is unlikely to be able to evaluate whether such software is properly "targeted" at foreigners. The House legislation also drastically extends the timeline for reviewing surveillance activities, potentially allowing the government to commence eavesdropping and then drag out judicial review for months. Under existing law, the government must obtain judicial approval within 72 hours of the start of emergency wiretapping. In contrast, the judicial review of "certifications" can stretch out as long as four months. After beginning eavesdropping, the government has a week to submit its "certification" to the FISA court, which has 30 days to review the application. If the judge finds problems with the certification, the government can continue eavesdropping for another 30 days before it is required to comply with the order. And the government can buy still more time by filing an appeal to the FISA Court of Review. The appeals court may take as long as 60 days to make its decision, and the government will often be allowed to continue eavesdropping throughout the process of judicial review. This means that in many cases, the government will have completed its spying activities long before the courts reach a decision on its legality. No "targeting" Americans The legislation does provide modestly enhanced protections for Americans living overseas. The "authorizations" described in the previous section are only available when they "target" those who are not American citizens or legal residents. When the target of an eavesdropping program is an American, the government must satisfy more stringent requirements, including the traditional requirement that the target is an "agent of a foreign power." The surveillance also must cease within seven days if judicial approval for it is not forthcoming. This section is a modest restriction on the government's prior eavesdropping powers. Traditionally, FISA did not govern purely overseas eavesdropping activities, even if they targeted American citizens. Under the new legislation, the government will need court approval to "target" Americans overseas, even when the surveillance is conducted overseas. However, as a practical matter, this enhancement of Americans' privacy rights may prove extremely limited. The government may not "target" Americans under the broad "authorizations" discussed in the previous section, and in some cases the government may discard information obtained about Americans as part of the required "minimization" procedures, but the government would retain significant latitude to decide which information it retains. The paradoxical consequence is that broader wiretapping orders may be approved more easily than narrower ones. For example, the government could not unilaterally "authorize" the "targeting" of a particular San Francisco resident's international communications. However, it could "authorize" a dragnet surveillance program that intercepted the international communications of all San Francisco residents under the pretext that it was "targeting" any foreign terrorists who might happen to communicate with San Francisco residents. This is particularly troubling when we remember that in 2002, the Foreign Intelligence Surveillance Court of Review held that FISA does not prohibit coordination between foreign intelligence gathering and domestic law enforcement. That suggests that the FBI could ask the NSA to tailor its filters to intercept evidence of Internet gambling, copyright infringement, or other ordinary crimes. The Americans whose communications were turned over could not be the "target" of the surveillance, but the House legislation requires only that foreign intelligence gathering be "a significant purpose" of eavesdropping programs. If a terrorist surveillance program also catches American citizens who are gambling or infringing copyright law, that's even better! Other provisions As has been widely reported, the legislation would grant broad, retroactive immunity to firms that participated in the president's warrantless surveillance program. The bar for granting immunity is extremely low: to receive immunity, the firm must merely demonstrate that it had received a letter from the government stating that the program was lawful. Since we already know that the program participants received such letters, there is no practical difference between this standard and blanket immunity. The legislation expands the list of people who can be spied on to include those engaged in "the international proliferation of weapons of mass destruction." And curiously, it has an extremely broad definition of "weapons of mass destruction." It includes not only nuclear, chemical, and biological weapons, but also "any explosive, incendiary, or poison gas that is designed, intended, or has the capability to cause a mass casualty incident." As Wired's Jason Sigger points out, this is significantly broader than the traditional definition. The legislation mandates that the Inspectors General of each agency involved in FISA surveillance prepare reports to Congress detailing the nature and extent of post-September 11 surveillance activities. Democratic leaders have made much of a provision designating FISA (along with ordinary criminal wiretapping procedures) as the "exclusive means" for intercepting electronic communications. But as a ruling last week made clear, this provision is little more than window dressing. Republican-appointed judge Vaughn R. Walker ruled last week that the 1978 FISA statute established "the exclusive means for foreign intelligence surveillance activities to be conducted." If the president ignored the exclusivity provisions of the current iteration of FISA, it's not clear what is accomplished by adding another one. Compromise or capitulation? Democratic leaders have worked hard to portray the legislation as a compromise, but close examination of its provisions suggests that it is an unvarnished victory for President Bush and his allies in Congress. The legislation eliminates meaningful judicial oversight of eavesdropping between Americans citizen and foreigners located overseas and effectively legalizes dragnet surveillance of domestic-to-foreign traffic. It stretches out the judicial review process so much that the government will in many cases be able to complete its surveillance activities before the courts finish deciding on its legality. And Democratic leaders have capitulated on the immunity question, agreeing to language that would almost certainly lead to retroactive immunity for lawbreaking telecom companies. Many supporters of Barack Obama were dismayed last month when he announced that he would support the legislation. Indeed, more than 20,000 have joined a group on his campaign website urging him to reject the bill; the group is now the largest on his website. But thus far, Obama has maintained his support for the bill. Last week, an Obama surrogate insisted that "with FISA expiring," the bill was the best Democrats could hope to get. The only problem is that FISA isn't expiring. It was enacted in 1978 and is not scheduled to sunset. The Protect America Act did expire in March, but given that the Bush administration managed to prevent terrorist attacks under FISA for almost six years until last summer's passage of the Protect America Act, it's hard to be too alarmed about living under FISA again for the final six months of Pres. Bush's term. The Democrats' capitulation is particularly puzzling because, as we've pointed out before, the Democrats' firm stance on FISA this Spring turned out to be a political asset, not a liability. When House Democrats called Pres. Bush's bluff and allowed the Protect America Act to expire in March, it got a wave of positive coverage from the media, which pointed out that the PAA's expiration would have little effect on the government's ability to spy on terrorists. Now that Democratic leaders are switching sides yet again, we've seen the re-emergence of unflattering coverage focusing on the Democrats' weakness on national security issues and lack of party unity. Protecting civil liberties ought to be a matter of principle, but even if Democratic leaders are unmoved by civil liberties concerns, one might have expected them to stand up to the White House based on purely political motivations. Civil libertarians' last stand against expanded government surveillance will occur in the Senate, in a vote that is expected to occur this week. So far, the determined opposition of a small group of Senators led by Chris Dodd and Russ Feingold has managed to stall the legislation for a couple of weeks. Dodd has signaled that he will continue using every weapon at his disposal to stop the legislation. But with Democratic leaders lining up in support of the bill, Dodd and Feingold face an uphill battle. http://arstechnica.com/articles/cult...compromise.ars Obama, FISA and the Netroots Bob Ostertag The current dust-up in the Obama camp over this week's FISA vote may have real consequences for the rest of this campaign. As you may know, the largest "group" on the Obama campaign's social networking site, MyBarackObama.com, is now a group assembled to protest Senator Obama's reversal of his promise to filibuster against the FISA legislation up next week. Reading through the blogoshpere, many commenters appear baffled at the intensity of the passions involved, and criticize the protestors for making such a fuss over "just one issue." But there are good reasons why core activists have taken a strong stand, and why the campaign may look different after this is over. For many Obama activists, a key issue that propelled them into campaign activism is dismantling the unconstitutional legal measures the Bush administration put in place in the aftermath of 9/11. The prison at Guantánamo, the secret CIA prisons scattered around the globe, the torture of prisoners, and the kangaroo courts set up to process them are the foreign pieces of this puzzle. Warrantless eavesdropping on Americans is the domestic piece. While understanding all the ins and outs of the FISA legislation requires a specialist's knowledge, the core issue is simple: are we working to return the country to the rule of constitutional law or not? (Click here for an excellent analysis of Obama's FISA statement by a specialist.) Obama made two arguments in his reply to the protestors. First, he argued that though the bill is "far better than the Protect America Act" which the Bush administration pushed through Congress last year. This argument is not only meaningless but downright misleading, for the Protect America Act was written to expire. If no new legislation is passed, we revert back to the pre-Bush, pre-9/11 version of the legal structure of state surveillance of Americans, not the Bush version. The question is not whether the new legislation is better than Bush's, but whether it is better than what the country lived under from 1978 until Bush. It is one thing for Obama to be vague about the particulars of his policies, as he was throughout the primaries. But it is a different thing altogether to make misleading statements about key issues. So we are left with Obama's second argument, and this one has actual substance: The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe -- particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise. The "important surveillance tool" he is referring to is warrantless wiretapping. Here Obama unequivocally sides with the argument the Bush administration justice department has been making for years: that in the context of the "war on terror," some constitutional rights must be suspended or at least sidestepped, and key among them is warrantless state surveillance. That is a BIG DEAL. There are more ways in which this issue stands out among others. Obama's promise to withdraw American troops from Iraq in 18 months is highly provisional and will be subject to many reality tests along the way. His program for global warming will be a major undertaking to put in place, and will surely show many signs of wear when and if it is enacted. The FISA issue is a completely different deal: this is pending legislation that will be voted on next week. It is very much still a fight. There are senators set to oppose the bill, by filibuster if necessary. Obama had promised to be one of them. On October 24, 2007, campaign spokesman Bill Burton announced, "To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies." The position was elaborated in another statement December 17, 2007: "Senator Obama unequivocally opposes giving retroactive immunity to telecommunications companies and has cosponsored Senator Dodd's efforts to remove that provision from the FISA bill. Granting such immunity undermines the constitutional protections Americans trust the Congress to protect. Senator Obama supports a filibuster of this bill, and strongly urges others to do the same." What Obama has done here is not a "refinement" of a policy position like he recently suggested concerning Iraq. It is an about face. Imagine how different next week would play out if the presumptive Democratic nominee was joining a filibuster on the floor of the senate, standing up for the constitutional rights of all Americans. The contrast between what would happen if Obama followed through on his promise, and what will happen if he doesn't, is night and day. (See this complete timeline of Obama's statements on the bill.) Here is another level on which this whole thing stinks. It is one thing for a presumptive nominee to adjust policy positions to reach out to constituencies he wants to bring in to his coalition which were not part of his primary victory. We have seen Obama do that with evangelicals, for example. Warrantless wiretapping has no constituency. There is no sector of the American population that just might jump off the fence and get behind Obama if he only agrees to give telecommunications corporations retroactive immunity for illegally collaborating with the Bush administration's spying. He is not courting votes here. Either he is caving in to pressure from the giant telecom corporations, or he has really bought into the idea that American actually needs warrantless wiretapping. Either option is equally unpalatable to many activists. Finally, here is yet another angle. Throughout the primaries, one of the big criticisms of Obama was that when it came to votes, he backed off. Thus all those "present" votes in Illinois. But the campaign came up with what seemed like a plausible explanation for all that, and many Obama supporters decided he deserved a pass on that. Well, here we are, the first big vote Obama faces on the national and international stage, and guess what? He is backing off. Not good. Yet there has been very little talk among the MyBO protestors of not voting for Obama. What there has been is a pronounced change of tone, which may hold real implications for the rest of the campaign. Obama rode to the nomination in large part on the backs of... well, of people like me. I always vote Democratic, and I always vote. All my life I have voted for a long string of mediocre Democratic candidates, but I have almost never volunteered for or sent money to a presidential campaign. I am politically active, but on local issues where I feel I can have a real impact, or on international issues that I feel are of global importance. The realm of presidential politics is another world to me: donors who can bring in millions, TV ads which I never see since I don't own a TV, and candidates loaded down with corporate backers with set agendas. Obama changed that for me. I sent him money. I phone banked. I held street signs. I don't know if I am going to continue with all that. I will vote for Obama of course. I will continue to urge everyone I know to vote for him. But my money and time, paltry though they may be, will likely get redirected to candidates who are willing to stand up for issues I care about. And because of the Internet, I know that there are a lot of other Obama supporters in the same boat; a lot of people considering cutting off their string of small donations to the campaign. All of this is coming at a time in which Obama's schedule is filled with big-money fundraisers where people can buy face time with the man for $30k. Put all these things together, and one cannot help but wonder if there is a turning point, that from here on out the campaign is will be less of a grassroots affair. This is not the death knell of the campaign. Far from it. I think Obama can do very well against McCain with a traditional, top down, big money campaign. I think he will be sworn in as our next president in January. But it will be a different campaign than what it has been until now. As one commenter to my blog so aptly said, "Senator Obama, you can tap my phone or my wallet, but not both." http://www.huffingtonpost.com/bob-os..._b_111116.html Online Movement Aims to Punish Democrats Who Support Bush Wiretap Bill Sarah Lai Stirland Online activists from the right and the left announced an unprecedented campaign Tuesday to hold Democratic lawmakers accountable for caving in to the Bush administration on domestic spying. A group of high-profile progressive bloggers and libertarian Republicans are rolling out a new political action committee called Accountability Now to channel widespread anger over pending legislation that would legalize much of the president's warrantless electronic surveillance of Americans, and grant retroactive legal immunity to telephone companies that cooperated with the spying when it was still illegal. Progressive author and lawyer Glenn Greenwald, who writes for Salon.com, and blogger Jane Hamsher of Firedoglake, are spearheading the effort. They've hired the political media consultants behind a historic Ron Paul online fundraising drive to organize a similar "moneybomb," set to go off Aug. 8. "That is the day Richard Nixon resigned, and the idea is that 35 years ago when you did this kind of stuff, you were forced out of office, and now congress drops everything to make your crimes legal," says Hamsher in an interview. The campaign marks a milestone in the evolution of online grassroots organizing. The PAC is cherry-picking the tactics and tools that proved most successful in the presidential primary campaigns, and is using them to corral online support for the single issue of domestic spying. The PAC's money pay for advertisements in the districts of the House Democrats who voted for the spy bill -- potentially causing problems for those capitulating on the Bush wiretapping program. "The fact is, we're all entering completely new territory here," writes Micah Sifry on the TechPresident blog in a post on other, similar efforts to rally support to influence Barack Obama's vote on the pending legislation this Wednesday in the Senate. "There have always been efforts to influence political candidates to take or change positions during a campaign (or afterward), but we've never before had a national campaign create an open platform for mobilizing supporters and then seen a salient chunk of those supporters openly use that platform to challenge the candidate on a policy position." Key to the new effort are consultants Trevor Lyman and Rick Williams, whose successful online money-raising effort for Ron Paul, the libertarian-leaning Texas congressman, broke records last year. The pair masterminded a "moneybomb" drive called "This November 5th" that brought in an unprecedented $4.2 million in contributions in a single day. A repeat effort in December raised another $6 million for Paul. Now the pair have built a web page for Accountability Now where opponents of the spy bill can commit in advance to donating money to the PAC. Similar to the Ron Paul drives, netizens can grab Accountability Now badges to place on their blogs, which link back to the fundraising pledge page. The moneybomb is only one of several techniques, both online and off, that Hamsher's Firedoglake is experimenting with to make offending members of congress feel the anger of their constituents. Blue America PAC, of which Firedoglake is a part, has already hired Advomatic and Advomatic Laboratories in New York City, to create a VOIP widget that lets voters call their senators ask them what their stance is on the spy legislation, and to urge them to vote for an amendment that would remove the telecom immunity provision. So far, 1,600 calls have been made using the tool, which launched Wednesday, says Matt Browner Hamlin, Advomatic Laboratories' founder. Blue America PAC also launched a robocall campaign in late June against House Majority Leader and Maryland Representative Steny Hoyer, who organized the vote for the legislation. And it's run television ads against Reps. John Barrow, D-Ga., and Chris Carney, D-Pa -- the so-called Blue Dog Democrats who pushed for the legislation. Hamsher says the effort is aimed at Democrats, because that's the party in control of Congress. "They will have the power," she says. "From our perspective, Chris Carney, or a Republican, it doesn't make any difference -- they're both voting bad on a variety of issues. But Republicans have no power, and Chris Carney in the center will. Using money it has already raised, the group ran a full-page advertisement in The Washington Post on Tuesday with bullet points explaining what's wrong with the pending legislation. The Senate is expected to follow the House in approving the new spy legislation Wednesday. http://blog.wired.com/27bstroke6/200...-activist.html Amendment Would Put Spy Lawsuits, Amnesty On Hold Pending Investigation Ryan Singel On Tuesday, the Senate resumes considering whether to hand new dragnet spy powers to the nation's spooks and to grant retroactive amnesty to telecoms that secretly helped the government spy on Americans without warrants for five years. The Senate seems set to bless the president's secretive program and to free some of the nation's largest corporations from the indignity of due process under the law, making an odd amendment from New Mexico Democrat Sen. Jeff Bingaman the the last real hope for those who want a court to rule on the legality of Bush's spying program. Democratic Sens. Christopher Dodd, Russ Feingold and Patrick Leahy have sponsored an amendment to fully strip the retroactive amnesty from the bill, therefore allowing a federal judge to decide how and whether to proceed with the class-action suits. That muscular approach failed by a substantial margin in March, and would likely do so again. Republican Sen. Arlen Specter offered an amendment that would allow the judge in the case to dismiss a plea for amnesty if the court found that the underlying surveillance violated the Constitution. That's a nifty proposal, but one unlikely to pass -- given that the Republican-appointed judge in the combined anti-wiretapping cases all but declared the President's secret wiretapping regime to be illegal in a ruling last week. Bingaman offers a different solution. Hitching his amendment to the anti-amnesty argument that Congress should not approve what it did not understand, Bingaman proposes that the court cases and amnesty powers all are put on hold, until three months after the joint report by the Inspectors General of the various intelligence services complete their report to Congress on just what transpired between the nation's telecoms and the intelligence services. If Congress is disturbed by the report -- due a year from the day the bill becomes law, it has time to undo or tweak the rules; otherwise, it can just leave amnesty provisions to come into effect three months after the report to Congress (both public and classified). That report is already required in the larger bill, but it's not due until next spring, far after the White House has a new inhabitant and long after the judge overseeing the anti-warrantless wiretapping program will have to dismiss the cases if the current bill is passed unmodified. The Bingaman amendment makes the simple argument that Congress should not handing out pardons without knowing what the pardons are for. Not surprisingly, the Director of National Intelligence and the Attorney General both told Senate Majority Leader Harry Reid (D-Nevada) that if the bill were passed with the Bingaman amendment, they and other senior Bush advisors would recommend that the President veto it. "Continued delay in protecting those who provided assistance after September 11 will invariably be noted by those who may someday be called upon again to help the Nation," DNI Michael McConnell and AG Michael Mukasey wrote Monday. "Any amendment that would delay implementation of the liablity protection is critical to the national security." Critics, such as the Electronic Frontier Foundation, say preventing massive cooperation with a secret government surveillance operation that targets Americans is exactly the point of the suit. The government's set-in-stone opposition does not surprise Kevin Bankston, an EFF attorney who specializes in surveillance law. "They want to finish up the last of the cover-up of the government's illegal, warrantless wiretapping program," Bankston said. The Senate is set to begin debate on the bill Tuesday, though planned votes on the three pending amendments and the final bill will be Wednesday to allow senators to attend the funeral of former North Carolina Senator Jesse Helms. Senator Christopher Dodd (D-Connecticut) is scheduled to take to the Senate floor early evening Tuesday. His orations against telecom amnesty and wider spying powers stopped the bill cold in December and evince a passion rarely seen on the Senate floor. http://blog.wired.com/27bstroke6/200...?cid=121444500 Senate Approves Bill to Broaden Wiretap Powers Eric Lichtblau The Senate gave final approval on Wednesday to a major expansion of the government’s surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues. The measure, approved by a vote of 69 to 28, is the biggest revamping of federal surveillance law in 30 years. It includes a divisive element that Mr. Bush had deemed essential: legal immunity for the phone companies that cooperated in the National Security Agency wiretapping program he approved after the Sept. 11 attacks. The vote came two and a half years after public disclosure of the wiretapping program set off a fierce national debate over the balance between protecting the country from another terrorist strike and ensuring civil liberties. The final outcome in Congress, which opponents of the surveillance measure had conceded for weeks, seemed almost anticlimactic in contrast. Mr. Bush, appearing in the Rose Garden just after his return from Japan, called the vote “long overdue.” He promised to sign the measure into law quickly, saying it was critical to national security and showed that “even in an election year, we can come together and get important pieces of legislation passed.” Even as his political stature has waned, Mr. Bush has managed to maintain his dominance on national security issues in a Democratic-led Congress. He has beat back efforts to cut troops and financing in Iraq, and he has won important victories on issues like interrogation tactics and military tribunals in the fight against terrorism. Debate over the surveillance law was the one area where Democrats had held firm in opposition. House Democrats went so far as to allow a temporary surveillance measure to expire in February, leading to a five-month impasse and prompting accusations from Mr. Bush that the nation’s defenses against another strike by Al Qaeda had been weakened. But in the end Mr. Bush won out, as administration officials helped forge a deal between Republican and Democratic leaders that included almost all the major elements the White House wanted. The measure gives the executive branch broader latitude in eavesdropping on people abroad and at home who it believes are tied to terrorism, and it reduces the role of a secret intelligence court in overseeing some operations. Supporters maintained that the plan includes enough safeguards to protect Americans’ civil liberties, including reviews by several inspectors general. There is nothing to fear in the bill, said Senator Christopher S. Bond, the Missouri Republican who was a lead negotiator, “unless you have Al Qaeda on your speed dial.” But some Democratic opponents saw the deal as “capitulation” to White House pressure by fellow Democrats. “I urge my colleagues to stand up for the rule of law and defeat this bill,” Senator Russ Feingold, Democrat of Wisconsin, said Wednesday as the outcome was all but assured. The final plan, which overhauls the Foreign Intelligence Surveillance Act passed by Congress in 1978 in the wake of Watergate, reflected both political reality and legal practicality, supporters said. Wiretapping orders approved by secret orders under the previous version of the surveillance law were set to begin expiring in August unless Congress acted. Heading into their political convention in Denver next month and on to the November Congressional elections, many Democrats were wary of handing the Republicans a potent political weapon. The issue put Senator Barack Obama, the presumptive Democratic presidential nominee, in a particularly precarious spot. He had long opposed giving legal immunity to the phone companies that took part in the N.S.A.’s wiretapping program, even threatening a filibuster during his run for the nomination. But on Wednesday, he ended up voting for what he called “an improved but imperfect bill” after backing a failed attempt earlier in the day to strip the immunity provision from the bill through an amendment. Mr. Obama’s decision last month to reverse course angered some ardent supporters, who organized an Internet drive to influence his vote. And his position came to symbolize the continuing difficulties that Democrats have faced in striking a position on national security issues even against a weakened president. Senator Hillary Rodham Clinton, Democrat of New York, who had battled Mr. Obama for the nomination, voted against the bill. Senator John McCain, the likely Republican presidential nominee, was campaigning in Ohio and did not vote, though he has consistently supported the immunity plan. Support from key Democrats ensured passage of the measure. Senator John D. Rockefeller IV, the West Virginia Democrat who leads the intelligence committee and helped broker the deal, said modernizing the Foreign Intelligence Surveillance Act was essential to give intelligence officials the technology tools they need to deter another attack. But he said the plan “was made even more complicated by the president’s decision, in the aftermath of Sept. 11, 2001, to go outside of FISA rather than work with Congress to fix it.” He was referring to the secret program approved by Mr. Bush weeks after the Sept. 11 attacks that allowed the N.S.A, in a sharp legal and operational shift, to wiretap the international communications of Americans suspected of links to Al Qaeda without first getting court orders. The program was disclosed in December 2005 by The New York Times. As Congress repeatedly tried to find a legislative solution, the main stumbling block was Mr. Bush’s insistence on legal immunity for the phone companies. The program itself ended in January 2007, when the White House agreed to bring it under the auspices of the FISA court, but more than 40 lawsuits continued churning through federal courts, charging AT&T, Verizon and other major carriers with violating customers’ privacy by conducting wiretaps at the White House’s direction without court orders. The final deal, which passed the House on June 20, effectively ends those lawsuits. It includes a narrow review by a district court to determine whether the companies being sued received formal requests or directives from the administration to take part in the program. The administration has already acknowledged those directives exist. Once such a finding is made, the lawsuits “shall be promptly dismissed,” the bill says. Republican leaders say they regard the process as a mere formality to protect the phone carriers from liability. Lawyers involved in the suits against the phone companies promised to challenge the immunity provision in federal court. “The law itself is a massive intrusion into the due process rights of all of the phone subscribers who would be a part of the suit,” said Bruce Afran, a New Jersey lawyer representing several hundred plaintiffs suing Verizon and other companies. “It is a violation of the separation of powers. It’s presidential election-year cowardice. The Democrats are afraid of looking weak on national security.” The legislation also expands the government’s power to invoke emergency wiretapping procedures. While the N.S.A. would be allowed to seek court orders for broad groups of foreign targets, the law creates a new seven-day period for directing wiretaps at foreigners without a court order in “exigent” circumstances if government officials assert that important national security information would be lost. The law also expands to seven days, from three, the period for emergency wiretaps on Americans without a court order if the attorney general certifies there is probable cause to believe the target is linked to terrorism. Democrats pointed to some concessions they had won. The final bill includes a reaffirmation that the FISA law is the “exclusive” means of conducting intelligence wiretaps — a provision that Representative Nancy Pelosi of California, the House speaker, and other Democrats insisted would prevent Mr. Bush or any future president from evading court scrutiny in the way they say that the N.S.A. program did. David Stout contributed reporting. http://www.nytimes.com/2008/07/10/wa...10fisa.html?hp ACLU Announces Legal Challenge To Follow President’s Signature FOR IMMEDIATE RELEASE CONTACT: (202) 675-2312, media@dcaclu.org or (212) 549-2666; media@aclu.org WASHINGTON – Today, in a blatant assault upon civil liberties and the right to privacy, the Senate passed an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance. The FISA Amendments Act of 2008 was approved by a vote of 69 to 28 and is expected to be signed into law by President Bush shortly. This bill essentially legalizes the president’s unlawful warrantless wiretapping program revealed in December 2005 by the New York Times. “Once again, Congress blinked and succumbed to the president’s fear-mongering. With today’s vote, the government has been given a green light to expand its power to spy on Americans and run roughshod over the Constitution,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “This legislation will give the government unfettered and unchecked access to innocent Americans’ international communications without a warrant. This is not only unconstitutional, but absolutely un-American.” The FISA Amendments Act nearly eviscerates oversight of government surveillance by allowing the Foreign Intelligence Surveillance Court (FISC) to review only general procedures for spying rather than individual warrants. The FISC will not be told any specifics about who will actually be wiretapped, thereby undercutting any meaningful role for the court and violating the Fourth Amendment’s protection against unreasonable search and seizure. The bill further trivializes court review by authorizing the government to continue a surveillance program even after the government’s general spying procedures are found insufficient or unconstitutional by the FISC. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever information was gathered in the meantime. A provision touted as a major “concession” by proponents of the bill calls for investigations by the inspectors general of four agencies overseeing spying activities. But members of Congress who do not sit on the Judiciary or Intelligence committees will not be guaranteed access to the agencies’ reports. The bill essentially grants absolute retroactive immunity to telecommunication companies that facilitated the president’s warrantless wiretapping program over the last seven years by ensuring the dismissal of court cases pending against those companies. The test for the companies’ right to immunity is not whether the government certifications they acted on were actually legal – only whether they were issued. Because it is public knowledge that certifications were issued, all of the pending cases will be summarily dismissed. This means Americans may never learn the truth about what the companies and the government did with our private communications. “With one vote, Congress has strengthened the executive branch, weakened the judiciary and rendered itself irrelevant,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This bill – soon to be law – is a constitutional nightmare. Americans should know that if this legislation is enacted and upheld, what they say on international phone calls or emails is no longer private. The government can listen in without having a specific reason to do so. Our rights as Americans have been curtailed and our privacy can no longer be assumed.” In advance of the president’s signature, the ACLU announced its plan to challenge the new law in court. “This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project. “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment.” For more information, go to: www.aclu.org/fisa http://www.aclu.org/safefree/general...s20080709.html LegalTorrents Offers CC Works Via BitTorrent A site called LegalTorrents has just launched that hosts trackers and seeds for digital media licensed under the Creative Commons license. ("We distribute content with the full permission of the rights holders and use the peer-2-peer file-sharing technology called Bittorrent.") The site even provides a way to donate money to artists you like. (LegalTorrents takes 15% off the top unless you are a member, which costs $50 one-time during the beta period.) It's always good to see "legitimate" content distributed in ways that make it hard to demonize the distribution system itself — something Lawrence Lessig in particular has been doing for years, and his book "Free Culture" is one of the audiobooks available through LegalTorrents. Note that LegalTorrents has been around for a while now, rather than "just launched," but the current beta period won't last forever. http://yro.slashdot.org/article.pl?sid=08/07/06/1856244 Your Mashup Is Probably Legal TV Barn We've been conditioned to think that if you pull something off the web and use it, you're committing some sort of copyright infringement. But increasingly, the law is moving in the opposite direction. Provided you are making a truly new use of the content, you are free to make money off those copyrighted images and video and sound. On Monday the Center for Social Media released "Code of Best Practices for Fair Use in Online Video," which reflects the latest changes in copyright law that has expanded the understanding of fair use to include "transformational effect." Already Miro has endorsed the guidelines, as have several public broadcasters. The Center has a good track record, having issued guidelines for documentary filmmakers that have greatly reduced copyright claims in that area. The website has plenty of resources for mashers and mixers; I interviewed the Center's director in this podcast that summarizes the most important findings of the report. On the other hand, says reader kaliphonia, your guitar tablature sites may not fare so well. http://yro.slashdot.org/article.pl?sid=08/07/08/1245204 Download Torrents Remotely with Mininova Bookmarks Ernesto Mininova has just launched their new bookmarking feature for registered users. One of the benefits of your mininova bookmarks page is that generates a personalized RSS feed which allows you to automatically add bookmarked torrents to your BitTorrent client. Importing torrents via RSS can be very useful if you’re at work, school, or at a friends place. With this new feature from mininova you only have to bookmark the torrent, and it will start downloading automatically when your BitTorrent client is running at home. Here is how it works. First of all, you’ll have to be a registered user at Mininova to use the bookmarking feature. Then, when you come across a torrent you would like to download, simply click on the “Add to bookmarks” button. The torrent will then be added to your personal bookmarks page, which has its own RSS feed. Next, you will have to add your personal bookmarks feed to your favorite BitTorrent client and then you’re all set. In addition you can customize the process a bit more, depending on the client you use. Some clients, for example, let you choose whether to download the torrent immediately, or start it later manually. Mininova is not the first BitTorrent site to add bookmarking capabilities. Torrentz.com has had this feature for quite some time now. However, Mininova is the first site to combine it with an RSS feed that has BitTorrent enclosures, which makes it compatible with BitTorrent clients that support RSS downloading. Mininova has covered their new bookmark feature, with some additional details, in their latest blog post. For those who are interested, we have some more RSS tutorials over here. http://torrentfreak.com/automate-you...kmarks-080709/ File-Sharing Fetish Virginia Heffernan In 1996, as Hollywood was lionizing the pornographer Larry Flynt as the author of the real sexual revolution, the Internet was trying to decide what to do about porn. It was not an either-or question. After all, data could instantly be conveyed at low cost across vast distances, from traceless studios to private lairs. Pornography was bound to ride this network. Observers accepted it as axiomatic: technology and pornography — from the printing press, to photography, magazines, film and videotape — always evolve in tandem. “Sometimes the erotic has been a force driving technological innovation,” John Tierney wrote in The Times in 1994. “Virtually always, from Stone Age sculpture to computer bulletin boards, it has been one of the first uses for a new medium.” The Internet is for porn. Since I spend days and nights watching online video, people frequently remind me of this maxim from “Avenue Q.” A little too rapidly, I protest that YouTube, the Web’s most comprehensive video site, where people watch around three billion videos a month — fertile territory for pornography any way you look at it — has somehow kept itself (relatively) clean and outstripped the video-sharing competition. Chad Hurley and Steve Chen, who founded the site, met at PayPal, the money-exchange company. Their ambition in developing YouTube was not to create entertainment but to build another safe, secure and trustworthy exchange site, this one for videos. To a great extent, they have succeeded. So while pornography is no doubt culturally important and central to technological progress, I almost never run across it in my own online travels. Yes, I’m trying to seem relaxed and cosmopolitan. The truth is that pornography makes me feel tired and sulkily excluded, as if I were watching a long foreign-language play filled with hilarious jokes I’ll never understand. But almost everyone else seems to get it, and entrepreneurs in the mid-’90s saw dollar signs. Thanks to pro-sex feminism, the apotheosis of Flynt and nostalgia for the era of “Boogie Nights,” the entrepreneurs could even — if in existential doubt — wrap themselves in the Stars and Stripes. Pornography — or some kinds of it — was cerebral, hip. In San Francisco, there was Kink.com, a supposedly humane fetish site started by someone who had been to Columbia University. In New York, Nerve.com, a press darling aimed at a literate and coed audience, opened its doors. Elsewhere on the Web, sexual connoisseurship of specific sorts thrived, with sites devoted to underwater scenes, latex, “chunky angels” and copulation with octopuses, among other fetishes. The same radical eclecticism that characterizes today’s pornography also is in evidence everywhere on YouTube, in different guises. On a recent Wednesday, the most-popular video showed a boy shrieking like a madman over a toy car, just as an earlier YouTube boy shrieked over a Nintendo Wii. A little farther down that list, after commercial music videos, soccer clips and an admittedly sexy montage of the MTV star Heidi Montag, a YouTube video blogger named PhillyD filed what he unpersuasively billed as his final video. The fake goodbye by an exhausted blogger — who returns a little while later, unable to truly quit — has also become something of a YouTube set piece. YouTube’s redefinition of broadcast success from having giant audiences for blockbuster content to having a giant inventory of videos that each satisfy arcane, niche interests may have come from online pornography. Users create microgenres and niches by posting answering images: the shrieking-kid-with-toy genre, the cats-being-mean genre, the speed-painting genre. Fans find one another, then break away to chat. However uneasy it makes me, the influence of pornography on nonporn online video is hard to ignore. Among the people I know who learned their way around the Web early on, many were motivated by an interest in porn. My friend A., for example, passed hours at a boring reality-TV job staring at “bear thumbs”: heavy, bearded, naked men rendered at thumbnail — postage-stamp — size. As A. talked about bear thumbs, and making do with them instead of paying to magnify the images, we marveled at the fact that the words “bear” and “thumb” had been united in this strange way, at this strange time in history, at this particular moment in the diversification of sexual markets. “How small are bear thumbs?” I finally asked. “Tiny. Like at my cubicle, right now, I am peering at a set of pixels that could be a badger or buffalo or just a brown-beige cube of light.” “Does it hit the spot?” I wondered. “Yes, in a weird way. Not getting the chance to quite see porn is the story of anyone’s life who grew up when the adult channels were scrambled. You learned to be turned on by partial views.” A. was at the leading edge, but now I have also developed a taste for undersize, partial and blurry images. In YouTube’s early days, the homepage often featured fuzzy clips of people in the middle of some ordinary action, seemingly shot and uploaded by accident. A seated, half-concealed kid would turn and say, “What are y— ” and that would be it. I watched every one I could find. They were otherworldly. Partly, too, I thought I didn’t have much time to see them. One look at YouTube’s eccentric offerings, and I figured its days as a free-for-all “video-sharing site” were numbered. Sooner or later it would become a porn depot. But it did not. Chen and Hurley were committed to taking down videos that users objected to, and they maintained their own standards, too. Chief among the site’s assets, in fact, were top-secret pattern-recognition technologies that block porn uploads. (I imagine a Galaga-like spaceship that shoots down constellations of flesh-colored pixels; YouTube’s not telling how they do it.) Of course, there’s plenty of suggestive and sexy stuff on YouTube, including raunchy near-nudity like “Super Booty Webcam Dance,” that’s not suitable for work or children. But nothing I’ve ever seen would count as X-rated. And while other video sites that gave YouTube competition at the start — like Gorilla Mask — are now overrun with pornography, YouTube has managed to chasten porn-uploaders enough that they’ve been forced to create their own counterparts to YouTube, like Pornotube and Eroshare. By keeping obscenity in check, YouTube teems with video of near infinite variety, stuff that thrives when pornography, which is hard to contain once it takes root, has been banished. YouTube risked losing millions of viewers when it made rules against pornography. But it has gained radical variety, the kind that defines the most robust ecosystems. YouTube’s dizzying diversity, in fact, now makes online porn sites that purport to cater to a broad range of tastes look only obsessive and redundant. On one recent day, YouTube’s most popular videos were not highbrow, but they were eclectic. A kid wiped out on his skateboard. Shayla Worley walked the balance beam at the Olympic trials. A group of friends used their cellphones to pop corn. What?! I was skimming thumbnails as usual when the popcorn video arrested my attention. I watched four times, transfixed. Before my eyes, popcorn on a coffee table popped, triggered (it seemed) by nothing more than ringing phones aimed at kernels. Whoa. Were the videomakers really allowed to suggest that cellphones emit so much radiation that they speed food preparation? Related cellphone-popcorn videos came up, including some videos that seemed to demonstrate that the popping was a fraud. Then still other videos appeared to reproduce the popping. I frantically tried to solve the mystery, eager to find out once and for all whether cellphones are hazardous. Who knew so many people shared this twisted curiosity? As I kept clicking and watching, I began to feel excited, even turned on. Points of Entry THIS WEEK’S RECOMMENDATIONS DIGNIFY IT: Put Walter Kendrick’s readable, scholarly and caseclosing 1987 book, “The Secret Museum: Pornography in Modern Culture,” on your desk, and suddenly the whole thing doesn’t feel so sordid. With an afterword from 1996. GET NERVOUS: One of the few Web 1.0 sites from New York still in business, Nerve no longer calls its content “literate smut,” but the site still offers 24/7 sex news, pictures and tales for ladies and gentlemen who consider themselves “mature” adults with “discretion.” Its personal ads also get high marks. A recent headline: “There’s one thing I’ve never done in bed, and I’m saving it for my future husband.” If you’re tantalized, see Nerve.com. OTHER PERVERSIONS: Though Wired featured a physicist who debunked them, and the first one may be an ad for headphones, the cellphone-popcorn videos are thrilling, if you’re into that kind of thing. Go to YouTube.com and perform a search for “cellphone” and “popcorn.” Watch the debunking videos. Then watch again. And you decide. Pop. http://www.nytimes.com/2008/07/06/ma...emedium-t.html Open WiFi Network Viable Defense Against Infringement Charge—at Least in Germany Jacqui Cheng An appeals court in Germany has ruled that the owners of a network are not responsible for the copyright infringement of their users. The decision overturns a previous judgment that held an open WiFi network owner liable for damages, even if the infringer is a stranger making use of the network. Although the latest ruling may affect others across Europe, it's not likely to carry much weight in the US. No safe harbor for RapidShare in copyright infringement case The decision comes out of a case where an unidentified artist sued a man because his IP address was identified as offering one of her songs for download on a P2P network. The defendant argued that he wasn't guilty of copyright infringement, but that he had operated an open wireless network and that someone else may have connected to it in order to use P2P. The prosecution responded by saying that open WiFi networks are easily abused, and that it's the owner's responsibility to ensure that the network is locked down and encrypted. The district court that heard the case ruled in favor of the plaintiff, saying that since the defendant couldn't prove which third-parties (if any) were guilty of copyright infringement on his network, he was responsible. Unsurprisingly, the defendant appealed the case, and the Frankfurt court of appeals ruled in his favor. The court said that the "abstract risk of abuse" of the defendant's connection is not enough to require him by law to lock it down. There was also no concrete evidence of copyright infringement on the defendant's part, therefore he should not be held liable for damages, the judge said. The decision could affect similar court cases across Europe, such as one brewing in the UK between Davenport Lyons and a handful of users accused of copyright infringement. As TorrentFreak points out, Davenport has stated in its letters to these users that the German courts have held network owners responsible for the actions of those using their connections, and that the UK courts could rule the same way. After this ruling, however, those letters (and the way the courts lean) could change. Still, some here in the US believe that unsecured WiFi networks just leave the door open to all manner of scum and villainy. SCO chairman Ralph Yarro told the Utah legislature last year that the state should regulate WiFi networks, even to the point of banning free and unintentionally open networks. In cases where people have been arrested for leeching off of an open network, one of the justifications given is the possibility that their freeloader could have been using the free access point for illegal activities. Additionally, a Texas man accused of possession of child pornography tried to use his open WiFi network as a defense, saying that someone else could have used the same network to traffic the images. The US Court of Appeals for the Fifth Circuit didn't buy the argument, however, and upheld his conviction. Take that and combine it with the RIAA's reliance on IP addresses to identify targets for its own lawsuits, and attempting to finger a nameless WiFi freeloader may not work so well on this side of the pond. You may be able to demonstrate down the line that it actually was someone else downloading Britney Spears' Greatest Hits over your open network, but doing so may prove to be a very expensive proposition. http://arstechnica.com/news.ars/post...n-germany.html Justice Breyer Is Among Victims in Data Breach Caused by File Sharing Brian Krebs Sometime late last year, an employee of a McLean investment firm decided to trade some music, or maybe a movie, with like-minded users of the online file-sharing network LimeWire while using a company computer. In doing so, he inadvertently opened the private files of his firm, Wagner Resource Group, to the public. That exposed the names, dates of birth and Social Security numbers of about 2,000 of the firm's clients, including a number of high-powered lawyers and Supreme Court Justice Stephen G. Breyer. The breach was not discovered for nearly six months. A reader of washingtonpost.com's Security Fix blog found the information while searching LimeWire in June. Services such as LimeWire, which are known as peer-to-peer networks, link computers directly, allowing users to swap digital movies, music and files with other users without the need of a central Web site to manage the exchange. What users may not be aware of is that the software that facilitates file sharing may be configured to allow access to a portion, if not all, of a user's documents. Robert Boback, chief executive of Tiversa, the company hired by Wagner to help contain the data breach, said such breaches are hardly rare. About 40 to 60 percent of all data leaks take place outside of a company's secured network, usually as a result of employees or contractors installing file-sharing software on company computers. "We've seen a lot of instances where a company will be working on a product that's not even released yet, and the diagrams for that product are already out on the Net," Boback said. "This case is unique because of the high profile of the targets. The individuals on this list are at a very high risk, almost imminent, of identity theft." In June, medical records and Social Security numbers for at least 1,000 patients at Walter Reed Army Medical Center were exposed in a peer-to-peer data breach. In June 2007, the pharmaceutical giant Pfizer disclosed that an employee who installed peer-to-peer software on a company laptop exposed files containing the names, Social Security numbers, addresses and some compensation information of 17,000 current and former Pfizer employees. In March, a Seattle man was sentenced to 51 months in prison for using LimeWire and similar networks to dig up personal and financial information on more than 50 people, which he then used to open lines of credit in the victims' names. Tiversa officials found that more than a dozen LimeWire users in places as far away as Sri Lanka and Colombia downloaded the list of personal data from the Wagner network. "To me, this was devastating," said Phylyp Wagner, founder of the investment firm. "I didn't even know what peer-to-peer was. I do now." A spokesman for Breyer said the justice had no comment on the security breach, which came to light after the reader notified Security Fix and the blog alerted some of the Wagner clients. Wagner said his company has contracted with FirstAdvantage of Poway, Calif., which last week sent out letters notifying affected clients of the breach and offering each six months of free credit-report monitoring. He emphasized that the peer-to-peer disclosure never endangered his clients' financial records, which are stored by a separate company. But that may be small consolation to several lawyers on the list who said they recently experienced unexplained financial activity. "This may explain why two weeks ago I got a $9,000 cellphone bill from AT&T," said Steven Agresta, a partner with the law firm Alston & Bird. Someone had opened a phone account using his date of birth and Social Security number, but with a different address. Agresta said AT&T promptly canceled the account and the bogus charges, but he's still checking his credit history and other accounts for signs of fraud. Of the 2,000 records from Wagner Resource Group that were found online, 700 included Social Security numbers, names and birth dates, while other records included only one or two of those details. Frank Cabri, vice president of product management for FaceTime Communications, a Belmont, Calif., company that helps organizations control employee use of peer-to-peer networks and other applications, said there are more than 120 free software titles available for online file-sharing. "Some of these applications are more complicated than others in terms of helping users figure out what files and folders they want to share and expose, and a lot of times the user is so focused on just going after that latest MP3 file that they're not paying attention to the default settings that come with the application," Cabri said. http://www.washingtonpost.com/wp-dyn...802997_pf.html The Chief Justice, Dylan and the Disappearing Double Negative Adam Liptak The last chief justice liked light opera. The new one cites Bob Dylan. Four pages into his dissent on Monday in an achingly boring dispute between pay phone companies and long distance carriers, John G. Roberts Jr., the chief justice of the United States, put a song lyric where the citation to precedent usually goes. “The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing,” Chief Justice Roberts wrote. “ ‘When you got nothing, you got nothing to lose.’ Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).” Alex B. Long, a law professor at the University of Tennessee and perhaps the nation’s leading authority on the citation of popular music in judicial opinions, said this was almost certainly the first use of a rock lyric to buttress a legal proposition in a Supreme Court decision. “It’s a landmark opinion,” Professor Long said. In the lower courts, according to a study Professor Long published in the Washington & Lee Law Review last year, Mr. Dylan is by far the most cited songwriter. He has been quoted in 26 opinions. Paul Simon is next, with 8 (12 if you count those attributed to Simon & Garfunkel). Bruce Springsteen has 5. But Mr. Dylan has only once before been cited as an authority on Article III standing, which concerns who can bring a lawsuit in federal court. His key contribution to legal discourse has been in another area. “The correct rule on the necessity of expert testimony has been summarized by Bob Dylan: ‘You don’t need a weatherman to know which way the wind blows,’ ” a California appeals court wrote in 1981, citing “Subterranean Homesick Blues.” Eighteen other decisions have cited that lyric. Chief Justice Roberts’s predecessor, William H. Rehnquist, cited his beloved Gilbert & Sullivan in a 1980 dissent from a decision that the press had a constitutional right of access to court proceedings. He was still an associate justice, and he thought the court had made up the right out of whole cloth. In rebuttal, Justice Rehnquist relied on the Lord Chancellor in “Iolanthe” to rebuke the majority. “The Law is the true embodiment of everything that’s excellent,” the Lord Chancellor says. “It has no kind of fault or flaw, and I, my Lords, embody the Law.” That made Justice Rehnquist’s point pretty well. The Roberts citation is more problematic. On the one hand, he showed excellent taste. “Like a Rolling Stone,” as Greil Marcus has written, is “the greatest record ever made, perhaps, or the greatest record that ever would be made.” On the other hand, Chief Justice Roberts gets the citation wrong, proving that he is neither an originalist nor a strict constructionist. What Mr. Dylan actually sings, of course, is, “When you ain’t got nothing, you got nothing to lose.” It’s true that many Web sites, including Mr. Dylan’s official one, reproduce the lyric as Chief Justice Roberts does. But a more careful Dylanist might have consulted his iPod. “It was almost certainly the clerks who provided the citation,” Professor Long said. “I suppose their use of the Internet to check the lyrics violates one of the first rules they learned when they were all on law review: when quoting, always check the quote with the original source, not someone else’s characterization of what the source said.” The larger objection is that the citation is not true to the original point Mr. Dylan was making, which was about the freedom that having nothing conveys and not about who may sue a phone company. (See, e.g., “Me and Bobby McGee.”) http://www.nytimes.com/2008/06/29/we...w/29dylan.html Analysis: NSA Spying Judge Defends Rule of Law, Congress Set to Strip His Power Ryan Singel Just days before the Senate will convene to give a final blessing to President Bush's secret, warrantless wiretapping program, a federal court judge ruled that his legal justification for the surveillance has no legal merit. He's the same judge Congress is trying to save the nation's telecoms, such as AT&T, Verizon and Sprint, from having to face in court. Late Wednesday, U.S. District Chief Judge Vaughn Walker issued a ruling in a case against the government alleging illegal spying, finding that in 1978 Congress had clearly set out the rules for wiretapping inside the United States and that Bush's claims to have inherent authority outside of those rules did not pass Constitutional muster. Quote:
Not so, according to Walker: Quote:
They will also likely give retroactive amnesty to telecom companies that agreed to illegal and sweeping surveillance requests from the same government agencies that dole out fat secret contracts to the very same telecom companies. So thanks to Congress's pending meddling with the courts in capitulation to the President, Vaughn Walker's ruling is the closest we will likely come to a judicial ruling on the limits of presidential power to spy on Americans. Judge Vaughn Walker is no raging San Francisco liberal. He was appointed to the bench by President George H W Bush, and is known for his intellect and libertarian streak. Walker also ruled that the government's claims that the case would endanger national security did not overrule the provisions of law that let a spied-upon person sue the government for breaking the law. But Walker dismissed the underlying case, which was based on a Top Secret document accidentally provided to American lawyers for a Muslim charity that the government was in the process of designating as a terrorist organization. The plaintiffs have been barred from using the document to prove they were spied on and thus can not prove standing. If they can find another way to prove they were spied on, they can refile the suit. He's the same judge who's overseeing all the cases against the telecoms. When the Senate votes Tuesday, they are voting to keep Judge Walker from examining whether the nation's largest telecoms massively violated federal privacy laws by helping the government spy on Americans. The vote for or against amnesty not about whether telecoms participate in the future. In the future, they are supposed to get court orders -- that's the promise of the bill. The planned July 8 vote is whether or not Americans can get justice for a violation of federal law, or whether some of the nation's largest companies -- and by extension, the nation's highest elected officials -- are above the law. http://blog.wired.com/27bstroke6/200...is-nsa-sp.html Remembering Brainwashing Tim Weiner IT was a time of secrecy and fear. Fear of a strange enemy driven by an alien ideology, killing Americans abroad, threatening Americans at home. And it created a new terror. In the early 1950s, American troops were being killed and captured by the thousands in Korea. Panic spread that China’s Communists had learned how to penetrate and control the minds of American prisoners of war. The technique was called “brainwashing.” And suddenly it’s worth recalling what brainwashing was about. Because now we know, from an article in The New York Times last week, that in a new time of anxiety America’s own interrogators drew lessons from China’s treatment of American prisoners of war for their treatment of prisoners in the war on terror. The concept of brainwashing was the brainchild of Edward Hunter, a newspaperman born in 1902, who had covered the rise of fascism in Europe before joining the Office of Strategic Services, the forerunner to the Central Intelligence Agency, during World War II. The Korean War had just begun in 1950 when The Miami News published his article, “ ‘Brain-Washing’ Tactics Force Chinese Into Ranks of Communist Party.” He determined that “the Reds have specialists available on their brainwashing panels,” experts in the use of “drugs and hypnotism,” as he later told the House Committee on Un-American Activities. Their ultimate goal was conquering America. “The United States is the main battlefield,” he testified, “the people and the soil and the resources of the United States.” He warned that brainwashing would make Americans “subjects of a ‘new world order’ for the benefit of a mad little knot of despots in the Kremlin.” The idea that a totalitarian state could control people like Pavlov’s dogs had appeared in 1940s novels, notably Arthur Koestler’s “Darkness at Noon” and George Orwell’s “1984.” It took Mao’s China — and the forced “confessions” of some American prisoners of war during the Korean conflict — to make brainwashing a centerpiece of 1950s culture. After the war, thousands of American P.O.W.’s returned under suspicion of having collaborated with the enemy while in captivity. A handful, on orders from their captors, had, in fact, falsely accused the United States of conducting germ warfare against North Korea. Congress was transfixed by “the fear that the soldiers could have been brainwashed by the Chinese and still be spying for them,” Col. Elspeth Cameron Ritchie wrote in the journal Military Medicine. Dread that the Chinese Communists had created zombie sleeper agents spread quickly and ran deep. A Dutch psychologist, Joost A. M. Meerloo, caught the apocalyptic tone in a New York Times Magazine article in 1954: “The totalitarians have misused the knowledge of how the mind works for their own purposes. They have applied the Pavlovian technique — in a far more complex and subtle way, of course — to produce the reflex of mental and political submission of the humans in their power.” Orwell’s hero in “1984,” Winston Smith, holds out hope against Big Brother and his minions: “With all their cleverness they had never mastered the secret of finding out what another human being was thinking.” But the threat that they could riveted Americans — and the C.I.A. Finding out what others are thinking was (and is) the job of spies. The Korean experience spurred the C.I.A.’s search for mind-control techniques to grill suspected double agents. The agency took on a task described in its documents as “overseas interrogations.” Clandestine prisons were created in occupied Germany, occupied Japan and the Panama Canal Zone. “Like Guantánamo,” said a charter member of the C.I.A., Thomas Polgar. “It was anything goes.” In these cells, the agency conducted experiments in drug-induced brainwashing and other “special techniques” for interrogations. These continued inside and outside the United States, sometimes on unsuspecting human guinea pigs, long after the Korean War ended in 1953. “There was deep concern over the issue of brainwashing,” Richard Helms, the former director of central intelligence, told the journalist David Frost 25 years later. “We felt that it was our responsibility not to lag behind the Russians or the Chinese in this field, and the only way to find out what the risks were was to test things such as L.S.D. and other drugs that could be used to control human behavior. These experiments went on for many years.” While the government chased after truth serum, fiction raced behind reality. The theory of a robot-like Manchurian Candidate was posited by the C.I.A. in 1953, six years before Richard Condon published the novel of that name, nine years before the book became a movie. William Burroughs, in “Naked Lunch” (1959), created a drug-addled mad scientist, Dr. Benway, “an expert on all phases of interrogation, brainwashing and control.” In the 1960s, brainwashing began to fade as a nightmare, though it was revived when captured soldiers and pilots released by North Vietnam made antiwar statements. In 1967, a Republican presidential contender, Gov. George Romney of Michigan (Mitt’s dad), was ridiculed when he said he had been brainwashed by American generals about how well the war in Vietnam was going. Flash forward to 2002. American military and intelligence officers, looking for better ways to interrogate prisoners in the war on terror, went combing through government files. They found that the best institutional memory lay in the interrogation experiences of American P.O.W.’s in Korea. They reprinted a 1957 chart describing death threats, degradation, sleep deprivation — and worse — inflicted by Chinese captors. And they made it part of a new handbook for interrogators at Guantánamo. The irony is that the original author of that chart, Albert D. Biderman, a social scientist who had distilled interviews with 235 Air Force P.O.W.’s, wrote that the Communists’ techniques mainly served to “extort false confessions.” And they were the same methods that “inquisitors had employed for centuries.” They had done nothing that “was not common practice to police and intelligence interrogators of other times and nations.” Brainwashing was bunk: no secret weapon to control the human mind existed, America’s best experts concluded in the 1960s. Yes, the Communists used time-honored and terrifying interrogation tactics during the cold war. Some, like waterboarding, had been perfected during the Spanish Inquisition. But Mr. Biderman concluded that “inflicting physical pain is not a necessary nor particularly effective method” to persuade prisoners of war. Some veterans of the war on terror say that lesson should have been relearned, despite the urgent need to uncover whatever possible about terrorist planning — the administration’s principal justification of its harsh interrogation policies. Alberto J. Mora, the Navy’s general counsel from 2001 to 2006, told a recent Congressional hearing, where the Biderman chart resurfaced: “Our nation’s policy decision to use so-called ‘harsh’ interrogation techniques during the war on terror was a mistake of massive proportions.” http://www.nytimes.com/2008/07/06/we.../06weiner.html When News Is the Story David Carr Like most working journalists, whenever I type seven letters — Fox News — a series of alarms begins to whoop in my head: Danger. Warning. Much mayhem ahead. Once the public relations apparatus at Fox News is engaged, there will be the calls to my editors, keening (and sometimes threatening) e-mail messages, and my requests for interviews will quickly turn into depositions about my intent or who else I am talking to. And if all that stuff doesn’t slow me down and I actually end up writing something, there might be a large hangover: Phone calls full of rebuke for a dependent clause in the third to the last paragraph, a ritual spanking in the blogs with anonymous quotes that sound very familiar, and — if I really hit the jackpot — the specter of my ungainly headshot appearing on one of Fox News’s shows along with some stern copy about what an idiot I am. Part of me — the Irish, tribal part — admires Fox News’s ferocious defense of its guys. I work at a place where editors can make easy sport of teasing apart your flawed copy until it collapses in a steaming pile, but Lord help those outsiders who make an unwarranted or unfounded attack on me or my work. Our tactics may be different, but we, too, are strong for our posse. Media reporting about other media’s approach to producing media is pretty confusing business to begin with. Feelings, which are always raw for people who make their mistakes in public, will be bruised. But that does not fully explain the scorched earth between Fox News and those who cover it. Fox News found a huge runway and enormous success by setting aside the conventions of bloodless objectivity, but along the way, it altered the rules of engagement between reporters and the media organizations they cover. Under its chief executive, Roger Ailes, Fox News and its public relations apparatus have waged a permanent campaign on behalf of the channel that borrows its methodology from his days as a senior political adviser to Richard M. Nixon, Ronald Reagan and George H. W. Bush. At Fox News, media relations is a kind of rolling opposition research operation intended to keep reporters in line by feeding and sometimes maiming them. Shooting the occasional messenger is baked right into the process. As crude as that sounds, it works. By blacklisting reporters it does not like, planting stories with friendlies at every turn, Fox News has been living a life beyond consequence for years. Honesty compels me to admit that I have choked a few times at the keyboard when Fox News has come up in a story and it was not absolutely critical to the matter at hand. But it cuts both ways: Fox News’s amazing coup d’état in the cable news war has very likely been undercovered because the organization is such a handful to deal with. Fox is so busy playing defense — mentioning it in the same story as CNN can be a high crime — that its business and journalism accomplishments don’t get traction and the cable station never seems to attain the legitimacy it so clearly craves. There have been few stories about Bill O’Reilly’s softer side (I’m sure he has one), and while Shepard Smith’s amazing reporting in New Orleans got some play, he was not cast as one of the journalistic heroes of the disaster. The fact that Roger Ailes has won both Obie awards and Emmys does not come up a lot, nor does the fact that he donated a significant chunk of money to upgrade the student newsroom at Ohio University, his alma mater. Instead, Mr. Ailes and Brian Lewis, his longtime head of public relations, act as if every organization that covers them is a potential threat and, in the process, have probably made it far more likely. And as the cable news race has tightened, because CNN has gained ground during a big election year, Fox News has become more prone to lashing out. Fun is fun, but it is getting uglier by the day out there. • A little more than a week ago, Jacques Steinberg, a reporter at The New York Times who covers television, wrote a straight-up-the-middle ratings story about cable news. His article acknowledged that while CNN was using a dynamic election to push Fox News from behind, Fox was still No. 1. Despite repeated calls, the public relations people at Fox News did not return his requests for comment. (In a neat trick, while they were ignoring his calls, they e-mailed his boss asking why they had not heard from him.) After the article ran, Brian Kilmeade and Steve Doocy of “Fox and Friends,” the reliable water carriers on the morning show on the cable network, did a segment suggesting that Mr. Steinberg’s editor was a disgruntled former employee — Steven V. Reddicliffe once edited TV Guide, which, like Fox News, is owned by the News Corporation — and that Mr. Steinberg was his trained attack dog. (The audience was undoubtedly wondering what the heck they were talking about.) The accompanying photographs were heavily altered, although the audience was probably none the wiser. Mr. Reddicliffe looked like the wicked witch after a hard night of drinking, but it was the photo of Mr. Steinberg that stopped traffic when it appeared on the Web at Media Matters side by side with his actual photo. In a technique familiar to students of vintage German propaganda, his ears were pulled out, his teeth splayed apart, his forehead lowered and his nose was widened and enlarged in a way that made him look more like Fagin than the guy I work with. (Mr. Steinberg told me that as a working reporter who covers Fox News, he was not in a position to comment. A spokeswoman said the executive in charge of “Fox and Friends” is on vacation and not available for comment but added that altering photos for humorous effect is a common practice on cable news stations. It’s a particularly vivid example of how the Fox response team works, but hardly the only one. Julia Angwin of The Wall Street Journal wrote a profile of Roger Ailes in 2005. Again, her coverage was right up the middle, but that is not the way that Fox News saw it, and she was held out for ridicule over and over in items on various blogs penned by Fox News staff when she jumped the gun on the start date for the Fox business channel. (Ms. Angwin is on book leave and did not answer a message left on her cellphone.) Earlier this year, a colleague of mine said, he was writing a story about CNN’s gains in the ratings and was told on deadline by a Fox News public relations executive that if he persisted, “they” would go after him. Within a day, “they” did, smearing him around the blogs, he said. (I did not ask him for a comment because the information was of a private nature.) Some of the avenues of attack are easier to anticipate than others. Right now, there are advance copies circulating of a reported memoir I wrote about my times as a drug addict and drunk. I’ve already been called a “crack addict” on Bill O’Reilly’s show, which at least has the virtue of being true, if a little vintage. Expect a return engagement with some added detail. I have a bit of an advantage in that my laundry is already hanging on the line, not to mention that with a face made out of potatoes, the Photoshopped picture of me will have to go a long way to make me any uglier than I actually am. Having pointed a crooked columnist finger at Fox, at least I have it coming. Not so for many of the beat reporters who go to work every day confronted by a public relations machine that will go feral if it doesn’t get what it wants. When I started calling around about Fox News, Mr. Lewis, the public relations head, made himself available on very short notice on the Fourth of July. He patiently explained that while yes, the game had changed, it was hardly in the way I was describing. There are no dark ops, he said, and no blacklist — “a myth” — only good relationships and bad ones. Mr. Lewis said that members of his staff were not in the business of altering photos, that they had no control over stories that appeared on “Fox and Friends” or other shows, and he pointed out that it makes their job harder when they go after reporters. He called my suggestion that there was something anti-Semitic about the depiction of Mr. Steinberg “vile and untrue.” Mr. Lewis denied that his staff had threatened one of my colleagues or planted private information about him on blogs. That comes as a surprise to reporters I talked to who say they have received e-mail messages from Fox News public relations staff that contained doctored photos, anonymous quotes and nasty items about competitors. And two former Fox employees said that they had participated in precisely those kinds of activities but had signed confidentiality agreements and could not say so on the record. “Yes, we are an aggressive department in a passive industry, and believe me, the executives and talent appreciate it,” Mr. Lewis said, adding that with the 24-hour news cycle and the proliferation of blogs, a new kind of engagement and activism was required. “We are the biggest target in the industry and we accept that,” he said. “We embrace controversy,” but he said that he and his colleagues respect that reporters have a job to do. Many of the television-beat reporters I called had horror stories, but few were willing to be quoted. In the last several years, reporters from The Associated Press, several large newspapers and various trade publications have said they were shut out from getting their calls returned because of stories they had written. Editors do not want to hear why your calls are not being returned, they just want you to fix the problem, or perhaps they will fix it by finding someone else to do your job. David Folkenflik, now the media reporter for National Public Radio, ended up on the outs with Fox News in 2001 when he was at The Baltimore Sun. After he wrote that Fox’s Geraldo Rivera had not been at the site of an incident of friendly fire in Afghanistan as he had told viewers, Mr. Folkenflik said, his calls to Fox News were not returned for more than 15 months. “My sense was that it was designed to make it appear that I was having trouble doing my job, but also to intimate that the people who cross them will be shut out,” he said. Mr. Folkenflik said he did not take it personally because it was not aimed just at him. “I think it is a notably aggressive effort to manage the Fox News brand and image,” he said. “I think it is suffused with a political sensibility, and I don’t think it is any secret that it comes from the top with Roger Ailes. They behave less like a competitive news outlet and more like a political campaign when it comes to managing coverage.” But he holds no grudge. “I currently have a perfectly good relationship with Fox News,” Mr. Folkenflik said. “I touch base with them all the time, and I write the good and bad news as it occurs.” Bill Carter has covered television for The New York Times for many years and has always had a good working relationship with Fox News, but he was appalled to see what he viewed as an anti-Semitic caricature of Mr. Steinberg, a colleague and a friend. “I have not had a big problem with them, in part because their success has been such a great story, but this seemed over the line and really hateful,” Mr. Carter said. “It doesn’t seem like you can deal with them professionally. You do this kind of thing to a guy who’s writing a story for a newspaper?” Fox News has long held that it is its politics and not its tactics that set it apart and require such vigilance. But working reporters have been shaking their heads for years about the nightmare of dealing with Fox News and as a result, the antagonism they believe they are fighting against seems to be on the march. Mr. Lewis made it clear that Fox News has no problem working with reporters when they don’t have an agenda, and of course, I called with a very clear one. For the record, everyone I dealt with at Fox News in connection with this column was polite, highly responsive, and got right to the point, while still not giving ground on a single material fact. A guy could get used to that. http://www.nytimes.com/2008/07/07/bu...07carr.html?hp Mother Sues Over Tale of 'Drunken Party' Lifted from Bebo Robert Verkaik It read like the teenage party from hell: a riot of sex and wanton damage fuelled by under-age drinking that only ended when the police arrived. According to media reports, the mother of the teenage hostess was so angry with her daughter that she punched her. But Jodie Hudson's lurid description of the party on the social networking website Bebo, subsequently carried in a number of national newspapers, turned out to be fantasy. The media stories, and the accompanying pictures taken from Bebo, are now the subject of a landmark legal case that could redraw the boundaries of the use of information published on social networking sites including Bebo, Facebook and MySpace. Jodie's mother, Amanda Hudson, is suing six national newspapers for defamation and breach of privacy after they ran stories based on her daughter's exaggerated claims about her party, held at the family's £4m villa in Spain, where it was suggested jewellery was stolen and furniture and a television set thrown into the swimming pool. But Mrs Hudson says the party was anything but a drunken riot. In her letter before action to the newspapers, her lawyers say that the Hudsons employed private security guards to help supervise the private party on 3 May. The letter adds that nothing was stolen; no alcohol was served or permitted; none of the guests took part in sexual acts; the police were not called; and only minor damage was caused to one of the doors. Mrs Hudson also denies "punching or otherwise chastising" her daughter. In her claim Mrs Hudson says that, since the media reports, she has received abusive phone calls. The case is expected to have far-reaching consequences for third parties who use or publish information from social networking sites. Lawyers say it could place a duty on all second-hand users to establish the truth of everything they want to republish from such sites. Mrs Hudson not only denies the allegations but accuses the newspapers of misusing information posted by her daughter on the Bebo site, saying there was no legitimate public interest in publishing material from the site. Mrs Hudson says that, because the information was inaccurate, the papers cannot rely on the defence of fair comment. Her solicitor, David Price, said the case raised important issues of libel, privacy and copyright in relation to the unauthorised use of material taken from social networking sites. "Teenage conversation has always involved a large amount of embellishment..., but until recently it has not been communicated in a way that can potentially be accessed by the mass media," he said. Mrs Hudson said her daughter has also suffered greatly because of the breach of her privacy. "Jodie is 15 years old," she said. "She did not consent to the publication in the media of any photograph of her or her party, or of any material that she wrote on her Bebo site." http://www.independent.co.uk/news/uk...bo-865039.html New Bout in Seinfeld Cookbook Battle Julie Bosman Thanks to a rise in Amazon rankings, a revamped lawsuit and an “Oprah” rerun, the debate over “vegetable plagiarism” has entered Round 2. “Deceptively Delicious,” the cookbook by Jessica Seinfeld whose recipes for concealing puréed vegetables in comfort food for children bore such similarities to another cookbook’s that it inspired a lawsuit from that book’s author, shot to the top of the Amazon best-seller list on Wednesday, nine months after it was published. The sharp rise in sales caught the eyes of both books’ publishers, who traced it to the rerun on Tuesday of an episode of “The Oprah Winfrey Show” that featured Ms. Seinfeld. The appearance also subsequently lifted sales of “The Sneaky Chef,” by Missy Chase Lapine, the author who is suing Ms. Seinfeld. The books, similar in theme, content and appearance, remain inextricably tied to each other. On Amazon, shoppers viewing “Deceptively Delicious” are prodded to order “The Sneaky Chef,” and vice versa. And both books’ newfound popularity came as Ms. Lapine vowed on Friday to press ahead with her lawsuit against Ms. Seinfeld and her husband, Jerry Seinfeld, originally filed in January. The suit charged that the Seinfelds were guilty of copyright infringement and defamation. (It was Mr. Seinfeld who, during an appearance on “Late Show with David Letterman,” before calling Ms. Lapine a “wacko,” mockingly suggested that his wife was accused of “vegetable plagiarism.”) Armed with a new set of lawyers, Ms. Lapine recently extended her lawsuit against the Seinfelds to include HarperCollins, the publisher of Ms. Seinfeld’s cookbook. Ms. Lapine’s original lawyers left the case because they also represent News Corporation, which owns HarperCollins, Ms. Lapine said. Ms. Lapine is seeking unspecified damages. The Seinfelds called Ms. Lapine’s charges “trumped up,” pointing out that sneaking vegetables into children’s foods has been done in cookbooks since the early 1970s. (A lawyer for the Seinfelds did not return calls for comment on Friday.) In a telephone interview from her literary agent’s office on Friday, Ms. Lapine said she would continue her lawsuit as long as necessary. “I have no expectations or requirements on time,” she said. “I’d love to see truth and justice and fairness prevail.” Steve Ross, the publisher of Collins, the imprint that published “Deceptively Delicious,” said the inclusion of HarperCollins in the lawsuit did not change its support of Ms. Seinfeld. “HarperCollins remains thrilled to count Jessica Seinfeld on its roster of talented authors, and continues to stand unequivocally behind her work,” he said. The “Sneaky Chef” dispute began last summer, when Ms. Lapine received an eight-page promotional brochure for “Deceptively Delicious,” a sort of mini-version of the book. Ms. Lapine said she was stunned to see the similarities between the books, down to Ms. Seinfeld’s cover (a winking chef and an attempt to hide carrots). Ms. Lapine’s book had been rejected by HarperCollins and was eventually published in April 2007 by Running Press, an imprint of the Perseus Books Group. Six months later Ms. Seinfeld’s book was published. Each book became a best seller, but Ms. Seinfeld’s celebrity status helped her win a coveted appearance on “The Oprah Winfrey Show,” the ultimate book promotion. As of this week, Ms. Seinfeld’s publisher said 2.4 million copies of “Deceptively Delicious” were in print, while Ms. Lapine’s publisher said more than 200,000 copies of “The Sneaky Chef” were in print. In March Ms. Lapine published a second “Sneaky Chef” cookbook, directed at women trying to persuade their spouses to eat healthier food. She is currently working on a third cookbook, “Sneaky Chef to the Rescue,” built around specific food-related questions she has received from readers, like cooking for holidays, for dieters and for people with food allergies. The Perseus Books Group, Ms. Lapine’s publisher, is not a party to the lawsuit, but its chief executive, David Steinberger, has signaled his solidarity with her. “We support our author’s right to take steps to protect her intellectual property and reputation,” Mr. Steinberger said in an e-mail message on Friday. Thomas Girardi, one of Ms. Lapine’s new lawyers, did not give details on the damages that Ms. Lapine is seeking, but said he expected the lawsuit to stretch into the fall. “This is not something that’s going to be resolved a week from Tuesday,” he said. Mr. Ross, Ms. Seinfeld’s publisher, said despite the pending lawsuit and the swirl of controversy surrounding her book, HarperCollins has tentatively planned a new book with Ms. Seinfeld, which will be announced sometime this summer. “Because we are convinced of her innocence,” Mr. Ross said, “we see no justification for not continuing the relationship.” http://www.nytimes.com/2008/07/12/books/12sneak.html Internet Based Political "Meta-Party" For Massachusetts sophiachou The Free Government Party, a non-profit, open source political "meta-party" focused on providing citizens with more direct control of Congress through online polling and user-drafted bills, seems to be looking for a candidate to endorse for US Representative of Massachusetts' 8th Congressional District. If you're from the Boston area, you might have seen this already on Craigslist. The chosen candidate will be bound by contract to vote in Congress only as do his or her constituents online. However, they don't seem to be going for direct democracy. To make voting convenient, you can select advisers to cast your votes for you, unless you do so yourself. Supposedly, interviews for the candidate position are already underway. Anyone from MA's 8th Congressional District on Slashdot already apply? http://news.slashdot.org/article.pl?.../07/11/0351257 The Facebooker Who Friended Obama Brian Stelter Last November, Mark Penn, then the chief strategist for Hillary Rodham Clinton, derisively said Barack Obama’s supporters “look like Facebook.” Chris Hughes takes that as a compliment. Mr. Hughes, 24, was one of four founders of Facebook. In early 2007, he left the company to work in Chicago on Senator Obama’s new-media campaign. Leaving behind his company at such a critical time would appear to require some cognitive dissonance: political campaigns, after all, are built on handshakes and persuasion, not computer servers, and Mr. Hughes has watched, sometimes ruefully, as Facebook has marketed new products that he helped develop. “It was overwhelming for the first two months,” he recalled. “It took a while to get my bearings.” But in fact, working on the Obama campaign may have moved Mr. Hughes closer to the center of the social networking phenomenon, not farther away. The campaign’s new-media strategy, inspired by popular social networks like MySpace and Facebook, has revolutionized the use of the Web as a political tool, helping the candidate raise more than two million donations of less than $200 each and swiftly mobilize hundreds of thousands of supporters before various primaries. The centerpiece of it all is My.BarackObama.com, where supporters can join local groups, create events, sign up for updates and set up personal fund-raising pages. “If we did not have online organizing tools, it would be much harder to be where we are now,” Mr. Hughes said. Mr. Obama, now the presumptive Democratic nominee, credits the Internet’s social networking tools with a “big part” of his primary season success. “One of my fundamental beliefs from my days as a community organizer is that real change comes from the bottom up,” Mr. Obama said in a statement. “And there’s no more powerful tool for grass-roots organizing than the Internet.” Now Mr. Hughes and other campaign aides are applying the same social networking tools to try to win the general election. This time, however, they must reach beyond their base of young, Internet-savvy supporters. By early April, Mr. Obama’s new-media team was already planning for the election by expanding its online phone-calling technology. In mid-May, to keep volunteers busy as the primaries played out, the campaign started a nationwide voter registration drive. And in late June, after Senator Clinton bowed out of the race, the millions of people on the Obama campaign’s e-mail lists were asked to rally her supporters as well as undecided voters by hosting “Unite for Change” house parties across the country. Nearly 4,000 parties were held. The campaign’s successful new-media strategy is already being studied as a playbook for other candidates, including the presumptive Republican nominee, Senator John McCain. “Their use of social networks will guide the way for future campaigns,” Peter Daou, Mrs. Clinton’s Internet director, said at a recent political technology conference. Mr. Daou called Mr. Obama’s online outreach “amazing.” The heart of the campaign’s online strategy is a teeming corner of Mr. Obama’s headquarters two blocks from the Chicago River, a crowded space that looks more like an Internet start-up company than a campaign war room. During a visit in late May, a bottle of whiskey sat, almost empty, atop a refrigerator (there had been plenty of victories to celebrate lately, a staff member explained). Sitting amid a cluster of cubicles, Mr. Hughes, whose title is “online organizing guru,” handles the My.BarackObama.com site, which is known within the campaign as MyBo. Other staff members maintain Mr. Obama’s presence on Facebook (where he has one million supporters), purchase online advertising, respond to text messages from curious voters, produce videos and e-mail millions of supporters. Before helping build Facebook, the social network of choice for 70 million Americans, the fresh-faced and sandy-haired Mr. Hughes, who grew up in Hickory, N.C., went to boarding school at Andover, where he joined the Democratic Club and the student government. In the fall of 2002, he went to Harvard, where he majored in history and literature. He and a roommate, Mark Zuckerberg — now the chief executive of Facebook — shared a room that was “just about as small as my cubby at work is these days,” Mr. Hughes said. Mr. Zuckerberg and another Facebook co-founder dropped out in 2004 to work on the site full time, but Mr. Hughes graduated in 2006 before venturing to Silicon Valley. In February 2007, after showing interest in Mr. Obama’s candidacy and being reassured that the campaign’s new-media operation would be more than “just a couple Internet guys in a corner,” he left Facebook, where he has stock options that are potentially worth tens of millions of dollars, and moved to Chicago, where he lives — and dresses — like any other recent college graduate. “Cabs are a luxury,” he said. As supporters started to join MyBo in early 2007, Mr. Hughes brought a growth strategy, borrowed from Facebook’s founding principles: keep it real, and keep it local. Mr. Hughes wanted Mr. Obama’s social network to mirror the off-line world the same way that Facebook seeks to, because supporters would foster more meaningful connections by attending neighborhood meetings and calling on people who were part of their daily lives. The Internet served as the connective tissue. While many candidates reach their supporters through the Web, the social networking features of MyBo allow supporters to reach one another. Mr. Hughes’s abrupt shift from Facebook pioneer to campaign aide was not easy. In the lonely months before the Iowa caucus, he grappled with the small scale of his new social network, measuring its membership by the thousands rather than the millions he was accustomed to. He had to learn mystifying political shorthand (VAN, for voter file management; N.P.G., for the donor and volunteer database) and figure out how campaigns operate. Eventually, he grew comfortable. At first, his main focus was a single state. Throughout last summer and fall, the prevailing attitude was, “What can you do for Iowa today?” Mr. Hughes recalled. Mr. Obama’s win in the Iowa caucuses drove new supporters to the MyBo site in droves. Using the campaign’s online toolkit, energized volunteers laid the groundwork for field workers. So far, MyBo has attracted 900,000 members, although aides play down the raw numbers. “The point is not to have a million people” signed up, said Joe Rospars, the campaign’s new-media director, although he does expect to have well over a million signed up on MyBo by November. “The point is to be able to chop up that million-person list into manageable chunks and organize them.” In some primary and caucus states, volunteers used the Internet to start organizing themselves months before the campaign staff arrived. In Texas on March 4, Mrs. Clinton won the popular vote, but Mr. Obama came away with a lead of five delegates, thanks to a caucus win. Caucuses are a test of organizational strength, and Mr. Obama’s team used database technology to track 100,000 Texas volunteers and put them to work. This permitted campaign staff members to “skip Steps 1, 2 and 3,” Mr. Hughes said. So maybe the Obama core does “look like Facebook.” Mr. Penn’s remark, made at the Jefferson-Jackson Dinner in Iowa and reported by The Politico, was cited by both Mr. Rospars and Mr. Hughes in separate interviews. Virtual phone banks greatly benefited Mr. Obama. During the primaries, volunteers could sign in online, receive a list of phone numbers and make calls from home. The volunteers made hundreds of thousands of calls last winter and spring. At the end of June, the Obama campaign began carefully opening up its files of voters to online supporters, making it easier to find out which Democratic-leaning neighbors to call and which registered-independent doors to knock on. One goal is to drive online energy into in-person support. From January to April, for instance, the Obama campaign spent $3 million on online advertising to steer would-be voters to their polling places with online tools that tell people where to vote. The locators “are hard to build, but once you build them, they have a very high return on investment,” Mr. Hughes said. Much of the technology in the Obama toolbox was pioneered by Howard Dean’s 2004 campaign. “We were like the Wright brothers,” said Joe Trippi, the Web mastermind of the Dean campaign. The Obama team, he added, “skipped Boeing, Mercury, Gemini — they’re Apollo 11, only four years later.” Mr. Rospars and other former Dean aides formed a consulting firm, Blue State Digital, to refine their techniques. The Obama campaign purchased the backbone of MyBo from Blue State and has set out to improve it. “It’s still TheFacebook,” Mr. Hughes said, comparing Mr. Obama’s current site to the earliest and narrowest version of Facebook. “It’s still very, very rough around the edges.” Last month, acknowledging that attacks during the general election are likely to be more vociferous, the Obama campaign tried to capitalize on its network by creating a Web page, FightTheSmears.com. Through that site, the campaign hopes that supporters will act as a truth squad working to untangle accusations, as bloggers have informally in other campaigns and as many did when CBS reported on President Bush’s National Guard service in 2004. People who have posted on the site have already taken up five rumors, including that Mr. Obama was not born in the United States (a birth certificate was displayed) and that he does not put his hand over his heart during the Pledge of Allegiance (the site links to a YouTube video of him doing so). Republican strategists say, wryly, that Senator McCain’s 2000 campaign was innovative in its use of technology. (The candidate held a groundbreaking virtual fund-raiser and enabled supporters to sign up online.) But that was back when Mr. McCain ran as an outsider; as the presumptive nominee, he is no longer an upstart. His social network, called McCainSpace and part of JohnMcCain.com, is “virtually impossible to use and appears largely abandoned,” said Adam Ostrow, the editor of Mashable, a blog about social networking. By all accounts, Mr. McCain is not the BlackBerry-wielding politician that Mr. Obama is. But he has given credit to what he calls Mr. Obama’s “excellent use of the Internet,” saying at a news conference last month that “we are working very hard at that as well.” The McCain campaign recently reintroduced its Web site and hired new bloggers to broaden its online presence. Patrick Ruffini, a Republican strategist who was the Webmaster for President Bush’s 2004 campaign, said that a campaign’s culture largely determines its digital strategy. The McCain campaign “could hire the best people, build the best technology, and adopt the best tactics” on the Internet. “But it would have to be in sync with the candidate and the campaign,” Mr. Ruffini said. Mr. Hughes and other Obama aides say that their candidate gravitates naturally toward social networking, so much so that he even filled out his own Facebook profile two years ago. Mr. Obama has pledged that if he is elected, he will hire a chief technology officer; Mr. Hughes’s face lights up at the thought. Other administrations have adapted to the Internet, “but they haven’t valued it,” he said. Mr. Hughes has not decided whether to return to Facebook, and the decision does hinge in part on the fate of the campaign. But the lessons he has learned in political life seem to reinforce those learned in Silicon Valley. “You can have the best technology in the world,” he said, “but if you don’t have a community who wants to use it and who are excited about it, then it has no purpose.” http://www.nytimes.com/2008/07/07/te.../07hughes.html Ex-Prosecutor’s Book Accuses Bush of Murder Tim Arango As a Los Angeles county prosecutor, Vincent Bugliosi batted a thousand in murder cases: 21 trials, 21 convictions, including the Charles Manson case in 1971. As an author, Mr. Bugliosi has written three No. 1 best sellers and won three Edgar Allan Poe awards, the top honor for crime writers. More than 30 years ago he co-wrote the best seller “Helter Skelter,” about the Manson case. So Mr. Bugliosi could be forgiven for perhaps thinking that a new book would generate considerable interest, among reviewers and on the broadcast talk-show circuit. But if he thought that, he would have been mistaken: his latest, a polemic with the provocative title “The Prosecution of George W. Bush for Murder,” has risen to best-seller status with nary a peep from the usual outlets that help sell books: cable television and book reviews in major daily newspapers. Internet advertising has been abundant, but ABC Radio refused to accept an advertisement for the book during the Don Imus show, said Roger Cooper, the publisher of Vanguard Press, which put out the book. ABC Radio did not respond to a request for comment. Mr. Bugliosi, in a recent telephone interview from his home in Los Angeles, said he had expected some resistance from the mainstream media because of the subject matter — the book lays a legal case for holding President Bush “criminally responsible” for the deaths of American soldiers in Iraq — but not a virtual blackout. His publisher and publicist said they had expected that Mr. Bugliosi’s credentials would ensure coverage — he is, after all, fairly mainstream. His last book, a 1,612-page volume on the Kennedy assassination, “Reclaiming History,” which was published last year, sought to debunk the conspiracy theorists. It is being made into a 10-hour miniseries by HBO and the actor Tom Hanks. Mr. Bugliosi said bookers for cable television, where he has made regular appearances to promote books, have ignored his latest offering. MSNBC and Comedy Central’s “The Daily Show” were two outlets Mr. Bugliosi had thought would show interest, but neither did. “They are not responding at all,” he said. “I think it all goes back to fear. If the liberal media would put me on national television, I think they’d fear that they would be savaged by the right wing. The left wing fears the right, but the right does not fear the left.” A spokeswoman for Comedy Central said the staff of “The Daily Show” was on vacation and unavailable for comment. A representative for MSNBC said: “We get many pitches to interview authors and very few end up on our programs.” The editor of Newsweek, Jon Meacham, said he had not read the manuscript, but he offered a reason why the media might be silent: “I think there’s a kind of Bush-bashing fatigue out there.” “If it’s selling well,” Mr. Meacham said, “it’s another sign that the traditional channels of commerce have been blown up. If a dedicated part of the Internet community wants to move something, it doesn’t need a benediction from the mainstream media and might benefit from not having one.” The book was published in late May by Vanguard Press, a division of the Perseus Books Group — which also owns PublicAffairs, the publisher of the recent memoir by a former White House spokesman, Scott McClellan — and has sold about 130,000 copies. On Sunday it was No. 14 on the New York Times best-seller list. (The Times published a lengthy review of Mr. Bugliosi’s Kennedy book last year by the writer Bryan Burrough of Vanity Fair; his latest book is under consideration for review, said Robert R. Harris, the deputy editor of The New York Times Book Review.) For the Bush book, the equation for success seems to be this: Mr. Bugliosi’s reputation plus talk radio plus the viral nature of the Internet. Sara Nelson, the editor in chief of Publisher’s Weekly, said, “130,000 copies is an enormous number of copies of anything.” “You should never underestimate the power of a brand name author to circumvent the normal publicity and marketing channels,” Ms. Nelson said. “Somebody was very smart to see that something subversive like this is best marketed on the anonymous and youthful medium of the Internet.” Ms. Nelson said that if the book becomes successful, “the same people who didn’t want to give him publicity in advance would give him publicity after the fact.” Mr. Cooper of Vanguard Press said, “We publish books on all sides of the political fence and all kinds of political thought.” The company's sibling, PublicAffairs, has also published one of President Bush’s favorite writers: Natan Sharansky, the onetime Soviet dissident whose book “The Case for Democracy” is said to have influenced Mr. Bush’s foreign policy agenda. On Mr. Bugliosi’s book, Mr. Cooper said, “I expected there would be people who would choose not to talk about it. But I thought some would.” Mr. Bugliosi has had more than 100 radio interviews about the book, and Vanguard was behind an aggressive Internet campaign that included ads on liberal blogs. “It’s been frustrating on one hand but exhilarating on the other,” Mr. Cooper said. “Using the Internet has been an integral fact in the success of this book. I feel terrific about the sales of this book.” While Mr. Bugliosi’s Kennedy book got the star treatment from Hollywood in Mr. Hanks, he had to look outside the United States to find money for a film on his Bush polemic. Jim Shaban, a theater owner in Windsor, Ontario, financed a documentary on the book that is almost complete. The movie, directed by David Burke, does not yet have a distributor. But it will not carry the same name as the book. “Mad as Hell” is one name under consideration, according to Peter Miller, of the PMA Literary and Film Agency, who has represented Mr. Bugliosi for about 25 years. “We may not be able to work with a mainstream company,” Mr. Miller said. http://www.nytimes.com/2008/07/07/bu...7bugliosi.html Bush Edits Out Jefferson's Religious Views Ed Brayton Hat tip to Sandefur for catching this. President Bush was at Monticello for a 4th of July celebration and he delivered an address. But it's quite telling that his speechwriters, in quoting Jefferson, cut out an anti-religious statement from a long and famous quote. Here's the way Bush put it: Thomas Jefferson understood that these rights do not belong to Americans alone. They belong to all mankind. And he looked to the day when all people could secure them. On the 50th anniversary of America's independence, Thomas Jefferson passed away. But before leaving this world, he explained that the principles of the Declaration of Independence were universal. In one of the final letters of his life, he wrote, "May it be to the world, what I believe it will be -- to some parts sooner, to others later, but finally to all -- the Signal of arousing men to burst the chains, and to assume the blessings and security of self-government." Now let's look at the full quote, including the part that was cut out. This is from a letter he wrote to Roger Weightman reflecting on the upcoming 50th anniversary of the Declaration of Independence (which, it turns out, was the day both he and John Adams died): May it be to the world, what I believe it will be, (to some parts sooner, to others later, but finally to all,) the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government. Jefferson made many such statements, of course. Clearly they are best edited out by those who advocate nothing if not monkish ignorance and superstition. http://scienceblogs.com/dispatches/2...rsons_reli.php Serenity Prayer Stirs Up Doubt: Who Wrote It? Laurie Goodstein Generations of recovering alcoholics, soldiers, weary parents, exploited workers and just about anybody feeling beaten down by life have found solace in a short prayer that begins, “God grant me the serenity to accept the things I cannot change.” Now the Serenity Prayer is about to endure a controversy over its authorship that is likely to be anything but serene. For more than 70 years, the composer of the prayer was thought to be the Protestant theologian Reinhold Niebuhr, one of modern Christianity’s towering figures. Niebuhr, who died in 1971, said he was quite sure he had written it, and his wife, Ursula, also a prominent theologian, dated its composition to the early 1940s. His daughter Elisabeth Sifton, a book editor and publisher, wrote a book about the prayer in 2003 in which she described her father first using it in 1943 in an “ordinary Sunday service” at a church in the bucolic Massachusetts town of Heath, where the Niebuhr family spent summers. Now, a law librarian at Yale, using new databases of archival documents, has found newspaper clippings and a book from as far back as 1936 that quote close versions of the prayer. The quotations are from civic leaders all over the United States — a Y.W.C.A. leader in Syracuse, a public school counselor in Oklahoma City — and are always, interestingly, by women. Some refer to the prayer as if it were a proverb, while others appear to claim it as their own poetry. None attribute the prayer to a particular source. And they never mention Reinhold Niebuhr. An article about the mystery of the prayer, by Fred R. Shapiro, associate library director and lecturer at Yale Law School, will be published next week in the Yale Alumni Magazine, an independent bimonthly publication. It will be followed by a rebuttal from Ms. Sifton. Mr. Shapiro, who edited “The Yale Book of Quotations,” said in an interview, “Reinhold Niebuhr was a very honest person who was very forthright and modest about his role in the Serenity Prayer. My interpretation would be that he probably unconsciously adapted it from something that he had heard or read.” In his quotation avocation, Mr. Shapiro says he has debunked claims about the provenance of other famous sayings, including Murphy’s Law (“Anything that can go wrong will”) and P. T. Barnum’s (“There’s a sucker born every minute”). Ms. Sifton faults Mr. Shapiro’s approach as computer-driven and deprived of historical and theological context. In an interview, she said her father traveled widely in the 1930s, preaching in college chapels and to church groups — especially Y.M.C.A.’s and Y.W.C.A.’s — and could have used the prayer then. She said she fixed the date of its composition to 1943 in her book, “The Serenity Prayer: Faith and Politics in Times of Peace and War” (W. W. Norton, 2003), because she had relied on her parents’ recollections. Ms. Sifton said the newly unearthed quotations were merely evidence that her father’s spellbinding preaching had had a broad impact. And she said she took greatest umbrage at Mr. Shapiro’s notion that the prayer was so simple that it could have been written by almost anyone in any era. “There is a kind of austerity and humility about this prayer,” Ms. Sifton said, “that is very characteristic of him and was in striking contrast to the conventional sound of the American pastorate in the 1930s, who were by and large optimistic, affirmative, hopeful.” The precise origins of the Serenity Prayer have always been wrapped in a fog. Even in Niebuhr’s lifetime, his authorship was challenged. His response was typically modest. He was quoted in a magazine article in 1950 as saying: “Of course, it may have been spooking around for years, even centuries, but I don’t think so. I honestly do believe that I wrote it myself.” The version of events most often cited in biographies of the theologian is that after Niebuhr used the prayer in a sermon in rural Massachusetts, a neighbor who was an Episcopal priest asked for permission to print it in a booklet for the armed forces in 1944. The U.S.O. distributed it widely. Alcoholics Anonymous also embraced it and circulated it widely as a motto for its 12-step program. The prayer is now ubiquitous, on mugs and greeting cards and embroidered pillows, sometimes with Niebuhr’s name attached. But it is possible to find attributions ranging from Aristotle to St. Augustine to Francis of Assisi. Bartlett’s Familiar Quotations attributed it to Niebuhr but gave the date as 1934, perhaps citing an erroneous reference in an article in the magazine of Alcoholics Anonymous, Mr. Shapiro said. But Ursula Niebuhr, who died in 1997, wrote in a memorandum (which an assistant for Mr. Shapiro saw in the Library of Congress) that her husband “may have used it in his prayers” by 1934, but “it certainly was not then in circulation.” A Niebuhr biographer, Charles C. Brown, said he was surprised to hear of the early references. “It is now well established beyond the shadow of any doubt among knowledgeable and fair-minded people,” Mr. Brown said, “that Niebuhr did compose it, probably in 1941 or ’43.” Mr. Brown said that perhaps Ms. Sifton’s theory was right, that the newspaper quotations were from people who heard Niebuhr speak the prayer years before he wrote it down. “His name was very much before the more theologically literate public” by the early 1930s, said Mr. Brown, author of “Niebuhr and His Age: Reinhold Niebuhr’s Prophetic Role and Legacy” (Trinity Press International, 1992). But, Mr. Shapiro argued, knowing that Niebuhr was so famous by then, why did none of the people who cited the prayer in the clippings also cite him? The artifacts that Mr. Shapiro unearthed dismayed the Rev. Gary Dorrien, the Reinhold Niebuhr professor of social ethics at Union Theological Seminary, which was Niebuhr’s scholarly home for many years. Professor Dorrien said, “What has the ring of truth to me is that some of the phrases in it, the gist of it, he heard or came into contact with in some way that he wouldn’t have remembered, since he’s not a scholarly, bookwormish person with habits of scholarly exactitude anyway.” “He is a preacher. He is coming into contact with things and blending them,” Professor Dorrien said, adding that for preachers, “it’s an occupational hazard.” http://www.nytimes.com/2008/07/11/us/11prayer.html?hp With New CD, Faith Hill In Christmas Mood Already It's summer and it's hot, but even so, Faith Hill is quick to warm up to talk about Christmas. Which is more than appropriate as she starts promoting the first Christmas album of her 15-year career, "Joy to the World," due September 16 on Warner Bros. While many Nashville-based artists record holiday records early and relatively often, Hill's was several years in the making and intended to be her definitive take on the season. "Joy to the World" is overwhelmingly a collection of standards, be it the big, booming orchestral arrangements of the title track or "Oh, Holy Night" or swinging, big-band, vintage-sounding versions of more lighthearted fare such as "Santa Claus Is Coming to Town" and "Holly, Jolly Christmas." "I love everything about Christmas, and I have wanted to record a Christmas album since the beginning of my career," Hill said while taking a break from shooting video for potential TV spots promoting the record. The day before, Hill had been at the Rose Bowl in Pasadena, Calif., taping "Sunday Night Football" promo spots with a group of NFL stars. Even as the industry craters, holiday-themed records remain a lucrative niche for labels. Josh Groban's "Noel" (2007) has moved 6.7 million copies in the United States for Warner Bros., flirting with Kenny G's "Miracles-The Holiday Album" from 1994, the top-selling Christmas album of the Nielsen SoundScan era (1991-present). On the country side, Toby Keith's Christmas album "A Toby Keith Classic Christmas" sold 294,000 last year. Hill was in stores last year with a greatest-hits package that sold just 257,000 copies in the United States, according to Nielsen SoundScan. She has moved more than 19 million albums in her career, topped by the 6.5 million copies of "Breathe" in 1999. Her last studio set, 2005's "Fireflies" has sold more than 2.2 million copies. Work on "Joy" started three years ago, but the project was sidetracked by the "Fireflies" and hits packages, not to mention the massive, record-breaking Soul2Soul II tour with her husband, Tim McGraw, in 2007-08. When those projects wrapped, Hill returned to the Christmas album. Song selection was one of the "toughest things" about putting the project together, Hill said. She didn't take the easy road, instead choosing challenging vocals, complicated lyrics and ambitious melodic structure. The album plays to her strengths as an unmistakably Southern soulful chanteuse and also conjures a vintage feel that would work in any era. "Fortunately, most of these songs I've known my entire life," she said. "On some of them I was used to singing the lyric I grew up with, which was not really always the original lyric. I guess over time things just change, or people take their own interpretation of what the song was originally." The more-spiritual songs on the record, such as "Oh Come All Ye Faithful," "Joy" and "Silent Night," feature the Nashville String Machine with conductor Carl Gorodetzky and were recorded live in the studio with Hill's vocals. "I've performed with an orchestra but I've never recorded with an orchestra live," she said. "I don't read music, and certainly it was difficult for me to read the scores, I really couldn't. So (arranger/conductor) David Campbell had quite a task put in front of him to direct the orchestra, as well as me. That was quite a challenge, but it worked out in the end." After a long layoff, the album was completed early this year, and Hill said it was surprisingly easy to resurrect the "spirit." "When we got into the studio this last time to complete it, it had been 18 months since we had heard the tracks. And all of us just sat there, turned off the vocal and just listened to the tracks of this Christmas music," she said. "We were all commenting on how fresh it was and how exciting it was to be back on the project. You would think it would be difficult with it not being the Christmas season, but when you record something that you're really proud of, it kind of stands the test of time, any time of the year." Hill won't tour to promote this release, but a wide range of multimedia promotional initiatives are being lined up. Hill has scheduled a special-edition "Soundstage" performance of her Christmas album that will be broadcast on PBS and also air elsewhere, said her manager, Gary Borman. He added that Hill's team is in discussions with a network about Hill and her Christmas music "participating in a major way" in an existing prime-time special. Beyond all the marketing, setup and commercial opportunity, Hill is sincere in touting the record's higher purpose. "I want it to be spiritual, I don't want to forget why we even celebrate Christmas," she said. "To me these songs are powerful and meaningful, and I want this to be the only Christmas album I'll ever record. And hopefully in 50 years it will sound as good as it does now. That's the intent behind it." http://www.reuters.com/article/music...33858220080707 Rare Marley, Skynyrd Performances Sold Online Vintage concert performances by such acts as Lynyrd Skynyrd and Bob Marley will soon join the nearly 500 recordings already available for download purchase at the music and memorabilia site Wolfgang's Vault. The additions were made possible through a deal between Universal Music Group (UMG) and Wolfgang's Vault founder Bill Sagan. The recordings include live performances by UMG artists culled from thousands of concerts produced by late promoter Bill Graham, along with gems from other catalogs and archives dating back decades. "This is a far-reaching agreement to make available what I would consider previously unreleased live performance recordings of Universal Music Group artists from the mid-'60s on through today," Sagan told Billboard.com. "It covers hundreds of UMG performers and thousands of live performance concerts." Sagan launched the Web site in 2003 after acquiring Graham's cache of memorabilia and concert recordings for $5 million. The downloadable content deal is for 10 years, with a streaming deal stretching "into perpetuity," Sagan said. If the concert is longer than 30 minutes, a full download is priced at $9.98, with concerts of less than 30 minutes at $5.98. Some one- or two-song performances cost $3.98. The site will continue to offer free streaming. "Of the 1,434 concerts that are up on the site, 488 can be downloaded right now," said Sagan. "And some very major artists will be downloading within the next 30 to 60 days." Eventually the product will be offered as CDs and vinyl under Universal's direction. "There will be physical product," Sagan said. A quick run through the site shows vintage performances for sale by artists including the Alarm, Fleetwood Mac, the Kinks, Billy Joel, Iggy Pop, James Taylor, Linda Ronstadt, Lou Reed, Mott the Hoople, Poco, Steve Miller, the Tubes, Uriah Heep, Warren Zevon and many others. (http://www.wolfgangsvault.com) http://www.reuters.com/article/music...42275420080606 It’s American Brandstand: Marketers Underwrite Performers Robert Levine The hip-hop and R&B producer Jermaine Dupri has discovered best-selling acts like Kris Kross and Da Brat, has produced hits for Mariah Carey and Jay-Z, and now runs the urban music division of the Island Def Jam Music Group. He’s also looking for fresh talent for a new label financed by a company new to the music industry. The new player? Procter & Gamble. The consumer goods giant is part of a wave of companies getting into the music business to promote their own products, essentially becoming record labels themselves. Procter & Gamble, for example, is joining Island Def Jam in a joint venture called Tag Records, a label that will sign and release albums by new hip-hop acts. It is named after a brand of body spray that P.& G. acquired when it bought Gillette. And Mr. Dupri, a music-industry veteran and the longtime partner of the singer Janet Jackson, sounds quite pleased with his new gig. “I’ve never seen someone wanting to devote this much money to breaking new artists,” said Mr. Dupri, who will serve as president of Tag Records while keeping his position at Island Def Jam. “Nobody in the music business has the marketing budget that I have.” At a time when online file-sharing is rampant, record stores are closing and consumers are buying singles instead of albums, getting into the music business might seem like running into a burning building. But as record labels struggle to adjust to a harsh new digital reality, other companies are stepping up their involvement in music, going far beyond standard endorsement contracts and the use of songs in commercials. These companies — like Procter & Gamble, Red Bull and Nike — are stepping outside of their core businesses to promote, finance and even distribute music themselves. A few months ago, Bacardi announced that it would help the English electronic music duo Groove Armada pay for and promote its next release. Caress, the body-care line owned by Unilever, commissioned the Pussycat Dolls singer Nicole Scherzinger to record a version of Duran Duran’s “Rio” that it gave away on its Web site to promote its “Brazilian body wash” product. The energy drink company Red Bull is starting a label that is expected to release music before the end of the year. And at least some of this music is credible: a hip-hop song that Nike released by Kanye West, Nas, Rakim and KRS-One was nominated for a Grammy Award for best rap performance by a duo or group. Unlike Starbucks, which got into the music business to sell CDs at its stores, these companies want to use music to promote products they already sell. “It’s not about money,” said Sarah Tinsley, a global marketing manager at Bacardi. “It’s a branding exercise.” Unlike the exclusive album deals that Wal-Mart is striking with groups like the Eagles, these companies are attracting artists at the height of their relevance. Two weeks ago, Converse released a single by a combination of artists that The Times of London called “a three-headed Frankenstein’s monster of coolness”: the Strokes singer Julian Casablancas, the producer Pharrell Williams and the R&B performer Santogold. Offered as a free download on Converse’s Web site, the song received mostly favorable reviews from both blogs and newspapers. “Our instructions to them were to have fun, as though they were doing any song,” said Jon Cohen, co-founder of Cornerstone, a music marketing company that has set up music deals for Converse, Nike, Caress and Smirnoff. “It doesn’t matter where the music comes from as long as it’s great.” A decade ago, signing a record contract with a body spray company would have been unthinkable for most artists. But at a time when labels’ promotion budgets are declining, consumer brands can offer valuable exposure in print and television ads. Jeff Straughn, Island Def Jam’s vice president for strategic marketing, said that Tag might spend seven times as much promoting a release as a traditional label. “When I started in this business 10 years ago, it was hard to get an artist to stand in front of a sign with a logo on it,” said David Caruso, the co-founder of Acme, the agency that negotiated the deal between Island Def Jam and Tag. “Now brands are engaging their audiences with content.” But the brands walk a fine line by making sure that consumers are aware that they financed a song without having it simply seem like a commercial. “We wanted it to be like they were making their own record,” said Rob Stone, a Cornerstone co-founder, referring to the song that Kanye West, Nas and KRS-One made for Nike with a celebrated producer, Rick Rubin. “None of them had to mention the Air Force 1,” a Nike shoe. Instead, Cornerstone asked the artists to write a track about the theme of timelessness and promoted it like any other song, making a video, promoting it to radio and selling it on iTunes. (Nike’s profits went to the Force4Change Fund, a charity for youth leadership programs.) As it turned out, the song, “Better Than I’ve Ever Been,” does mention the sneakers as well as “Nike’s straight classic.” For artists, deals with brands can be more lucrative than traditional record contracts. Performers usually get an advance or fee in addition to a royalty rate higher than that given by record labels, which is usually $1 to $2 per sale. If the artist is signed to a label, he usually has to share the money he makes. In most cases, control of the recording copyright reverts to the artist or label after a set period of time. In another deal Cornerstone negotiated, the electronic music duo Crystal Method remixed some of its songs to create a workout soundtrack that Nike could sell on its page in Apple’s iTunes store. The sneaker company gave Crystal Method a small advance but a generous royalty, according to Richard Bishop, the duo’s manager. The mix sold nearly 40,000 copies online, according to Nielsen SoundScan, and more than 15,000 copies in traditional stores once Nike’s period of exclusivity ended. Crystal Method’s last traditional album sold 184,000 copies, but Mr. Bishop said the duo made more money on the Nike project because the royalty rate was so much better. “I think in the world today, it doesn’t make a difference to the consumer if a record comes out on Warner Music, EMI, Red Bull or Diesel Jeans,” Mr. Bishop said. “Artists may be better advised to put their music out with a brand to get better reach and bigger advertising.” Groove Armada should also do well in its deal with Bacardi, according to the band’s manager, Dan O’Neill. The yearlong contract calls for the duo to play 25 Bacardi events and give the liquor company online distribution rights to its new E.P. — a release with less music than a CD — which is due in October. In exchange, Groove Armada receives a monthly fee, money for recording costs and a generous royalty on music Bacardi sells or gives away. It retains the copyright to its recording, as well as the right to sell its E.P. in traditional outlets, where it will presumably benefit from the money Bacardi spends on marketing. Music executives say many of the acts now striking deals with brands are popular enough to do so because they have already benefited from major-label marketing campaigns: Crystal Method was signed to Interscope, Groove Armada to Sony. Although consumer brands are taking on roles once reserved for labels, they are investing so much money in music because the same digital technology that whipsawed the music business is also making it harder to reach consumers. “We don’t just want to talk to people,” said Anne Jensen, a brand-building director at Unilever who works with Caress. “We want to give them something that adds value to their lives.” She said that Ms. Scherzinger of the Pussycat Dolls was perfect for the campaign because she embodied the spirit of Brazil. (Though, truth be told, she is Hawaiian, Russian and Filipino.) Ms. Scherzinger will get money from her deal with Caress as well as exposure in the brand’s television campaign — the kind of advertising that a major label would not buy, even for a star. “If you’re only looking at these deals in terms of money, you’re going to miss what they do for each party,” said Jeff Haddad, who manages Ms. Scherzinger and the Pussycat Dolls. Danny Goldberg, founder of the management company Gold Village Entertainment and former chairman and chief executive of Mercury Records, said that deals with brands would turn off fans of some bands but could be effective in promoting other performers. “In another era, there was a stigma attached to this,” he said. “Now it’s just another way to expose your music.” http://www.nytimes.com/2008/07/07/bu...a/07music.html EU Musicians Oppose Europe-Wide Online Royalties; Outcome Could Affect iTunes Kimberly Chow The Bee Gees' Robin Gibb and other European music composers warned today that standardizing music royalties across Europe could hurt musicians and the songs they write. The European Commission, the EU's executive arm, is close to finishing an antitrust investigation into how royalties are collected. The outcome might help large music retailers like Apple's iTunes sell from one store across Europe, rather than different stores with different products in each of the 27 EU nations. Gibb and three other composer-songwriters, representing the European Composer and Songwriter Alliance, or ECSA, warned that drastic changes to Europe's current online music market could reduce the royalties that musicians, particularly lesser-known ones with fewer sales, depend on to keep writing songs. ECSA said that if major online services can negotiate lower, region-wide fees, artists could get less for their songs despite seeing them distributed more widely. "On a fundamental scale, it's a human right that someone who writes a piece of work should have control of it," Gibb said in a statement, adding that a change could discourage newer songwriters from producing tomorrow's hits. Musicians make money from their music after they register copyrights with collective-rights managers, who in turn license songs and collect royalties from online services, radio stations, nightclubs and other outlets. Currently, there are separate licensing managers in each of the 27 EU nations, leading to a highly fragmented market and causing European online music sales to lag behind those in the United States. EU spokesman Jonathan Todd said the European Commission supports the collective-rights system because they minimize administrative fees and leave musicians with more money. However, the commission is investigating if this fragmentation violates fair trade rules by giving national copyright agencies a de facto monopoly. The collecting agencies' contracts with composers give authors only one choice of agency per country to collect payments. Todd said the antitrust probe may be concluded this month but gave no firm date. The EU has been at pains to create a Europe-wide copyright and licensing system for online music to make it easier and cheaper for commercial users to buy rights. Under the current setup, commercial users - satellite or cable broadcasters and Internet sites - that want to buy rights to music must get a license from each national collection agency. Because of the complexities, companies don't bother getting licenses for every market, so not all online music is available equally across the EU. More than 220 singers, musicians and composers - including Charles Aznavour, Sade, David Gilmour, Julio Iglesias, Maurice Jarre, Mark Knopfler and Michel Legrand - already have signed an appeal to the EU saying pan-European music licensing will stifle creativity. In a statement issued after meeting with EU officials, ECSA said EU-wide licensing would likely wipe out hundreds of thousands of small and medium-size businesses representing writers and publishers, reducing "the ability for Europe to produce cultural goods of any value in the international market." http://www.siliconvalley.com/news/ci...nclick_check=1 Last.fm Starts Paying Royalties to Unsigned Bands Frederic Lardinois Online music service Last.fm today announced that it will start paying out royalties to unsigned and independent bands that upload their music to last.fm. Artists will earn royalties whenever their music is played on-demand, or on Last.fm's streaming radio service. Last.fm had first announced this in January, but it took until today for Last.fm to officially start up its Artist Royalty Program. According to Last.fm, artists have uploaded close to half a million tracks since the program was first announced. When uploading a song, all artists can choose to opt into the Royalty Program. So far, Last.fm has been completely ad-supported, though a premium subscription service is currently in beta. Judging from the payout schedule, however, artists will need a lot of plays on Last.fm to make a reasonable amount from the program. On the other hand, though, MySpace pays out royalties to the major labels, but doesn't pay any royalties to unsigned bands on its site. Not everybody seems to be happy about this announcement from Last.fm, though. Merlin, the "world's first global rights body for independent music," which represents close to 8% of the US music market, has issued a statement to its roughly 12,000 members, telling them that Last.fm has failed to address its concerns about copyright infringement on Last.fm. Merlin also argues that the license terms of the Royalties Program are too ambiguous. Regardless of Merlin's objections, though, Last.fm's step to start paying out royalties should be applauded, as it gives musicians yet another way to make money outside of the mainstream music business. While the Royalty Program is limited only to Last.fm and doesn't collect royalties from various sources in the way SoundExchange would, Last.fm is giving musicians an alternative to the more traditional revenue models, which should prove to be especially appealing to smaller, still unknown bands. http://www.readwriteweb.com/archives..._royalties.php Arctic Monkeys in Dispute with Pioneering Radio Website Over 'Failure to Pay Royalties' Jonathan Brown Some of Britain's top bands, including the Arctic Monkeys, Editors and Basement Jaxx, are locked in an increasingly bitter dispute with the music radio website Last.fm over substantial unpaid royalties. Talks between the pioneering internet company and leading independent record labels aimed at resolving the issue have broken down without agreement, it emerged yesterday. Merlin, which represents labels including Beggars Group and Koch – who between them account for 12 per cent of global sales – has written to its members claiming Last.fm has been unwilling to "properly address its illegal infringing activity". The website boasts 21 million users worldwide and offers 3.5m audio tracks. In 2007 CBS bought the business for £140m – at the time the largest Web 2.0 deal brokered for a UK-based company – and agreed to keep the existing management team, after Last.fm became the fastest-growing free music website in the United States. The take-over made the founders among the wealthiest internet pioneers of the decade. Merlin's chief executive, Charles Caldas, confirmed that he had called in the lawyers but said he was still hopeful of striking a deal covering the explosion in on-demand streaming services. He is urging labels to seek independent legal advice in their dealings with Last.fm. Mr Caldas said: "We'd do whatever we feel is necessary to ensure that our members' rights are properly protected. "We're considering what evidence we can put in front of Last.fm to show that there is a vast amount of our members' repertoire being used on their services without licences." Describing the situation as "not acceptable", Mr Caldas accused the site of failing "to keep the negotiation going at a pace we think is acceptable". It is the second recent setback for Last.fm. The website wants to become the first site on which any song can be accessed at any time – paid for simply by advertising revenues. Its founders hope that users will also eventually be able to access every music video ever made. But last month Warner Music Group pulled Led Zeppelin songs and hundreds of thousands of other tracks from the service. Last.fm was one of the stars of Web 2.0, the internet trend that saw the rise of sites including MySpace and Facebook. It was founded in 2002 in a small office in Whitechapel, east London, by four German and Austrian entrepreneurs. It allowed users to customise and share playlists appealing to their tastes. The following year they integrated the Audioscrobbler system, a plug-in devised by the computer student Richard Jones as part of a project while studying at Southampton University. The huge database calculates recommendations based on the listening habits of music fans. This week Last.fm launched its own artist royalty programme offering unsigned and independent artists the chance to earn money as their music is played. Some 450,000 tracks have been uploaded since the programme was announced in January. Announcing the service, one of Last.fm's Austrian co-founders, Martin Stiksel, said: "The young musician making music in a bedroom studio has the same chance as the latest major label signing to build an audience and get rewarded. It is another revolutionary step towards helping musicians take control of their music – and, more importantly, make a living from it." http://www.independent.co.uk/arts-en...es-865053.html Pop Tours Still Sell, Despite Economy Ben Sisario For the music industry these days, flat is good. Despite inflation, rising gasoline prices and the continuing slide of record sales, concert tours from January to June grossed $1.05 billion in North America, the same as the midyear gross in 2007, according to a report this week by Pollstar, a trade magazine. Bon Jovi topped the list with a gross of $56.3 million, followed by Bruce Springsteen, with $40.8 million, and Van Halen, with $36.8 million. But with grim economic forecasts, many in the industry are bracing for a sharp downturn for the rest of the summer and the fall. “Everybody’s nervous,” said Gary Bongiovanni, the editor of Pollstar. “If you look at the parade of bad economic news we’ve seen in the first six months of the year, we’re doing better than we should be. When is the bottom going to drop?” Because tickets for the most popular tours are often bought months in advance, sales for recent shows may not reflect the jump in fuel prices over the last couple of months. The true test, according to concert promoters, booking agents and others, will be over the next few months, as consumers decide whether to buy tickets for the fall. “There’s been a delayed effect,” said Randy Phillips, the chief executive of AEG Live, the second-largest promoter (after Live Nation). “Most of these shows went on public sale in February, March and April, and it wasn’t as dire as it got right after that.” Not everyone in the industry is so worried. Live Nation is doing strong business on some of its most important tours, said Jason Garner, its chief executive for North American music. Madonna’s tour, which begins in Europe next month and comes to the United States in October, is already 90 percent sold out, he said. (Last fall Madonna signed a multifaceted deal with Live Nation worth a reported $120 million, covering recorded music, tours and merchandise.) Coldplay’s summer dates are also 90 percent sold out, and the New Kids on the Block reunion, starting in September, is at 80 percent, a Live Nation spokesman said. “The data so far this year suggests that the concert business is as healthy as it’s been,” Mr. Garner said. In addition to rock and pop, country acts placed high on the Pollstar list. Kenny Chesney is No. 4, with $35.3 million; Rascal Flatts No. 8, with $25.4 million; and the bill of Keith Urban and Carrie Underwood grossed $18.5 million to reach No. 11. With the exception of Kanye West (No. 6, with $31.6 million) and the Jay-Z and Mary J. Blige tour (No. 7, $30.7 million), hip-hop is largely absent. Mr. Garner said most concertgoers attend only a few shows a year but can be reliable ticket buyers for their favorite acts. Midyear sales for the last three years have been fairly steady after low numbers in 2004 and 2005. Grosses might be holding steady, but attendance has been slipping for years, as the industry has remained profitable by selling fewer tickets for more money. The total number of tickets sold in the first half of 2008 fell by 5.6 percent to 16.9 million, though that was offset by a 5.9 percent increase in prices. The average ticket price for Bon Jovi, for example, was $88, and for Jay-Z and Ms. Blige it was $111. Mr. Bongiovanni said high prices made the business vulnerable if the economy continues to curb discretionary spending. “When times are tight, and there are fewer of those dollars around,” he said, “the first thing that’s going to get cut is a $200 concert ticket.” The concert industry is based on tight margins. Much of the face value of a ticket — up to 90 percent, or even more for the biggest acts — goes to the artists. That forces promoters to rely on ancillary sales, like food, merchandise and parking. Those sales are also threatened by a souring economy, said David B. Kestenbaum, a media analyst with the investment banking firm Morgan Joseph. “People will still pay for the top artists,” Mr. Kestenbaum said, “but they may not spend as much at the concert.” http://www.nytimes.com/2008/07/12/ar...ic/12tour.html Music Business Hits Jackpot at Casinos Mitchell Peters The music industry is striking it rich at casinos. As casino venues target concertgoers from all walks of life through creative artist bookings, the effort hasn't gone unnoticed by those in the business. "If you're an agent, you love casinos," says Greg Oswald, a William Morris agent for such acts as Big & Rich, Hank Williams Jr. and Lynyrd Skynyrd. As new casinos boomed in the past 15 years, "it's found money," he adds. Most casinos are proactive in booking top-selling rock and pop acts, with the specific intent of drawing younger gamblers. But, as Oswald says, casinos appeal to a broad base of fans, therefore allowing booking opportunities for multiple genres. For some country acts in particular, casino venues have proved to be a beneficial asset when routing a tour. "Frankly, for a lot of artists in the country business and other genres, it has saved their bacon," Oswald says, adding that many casinos still draw older crowds. In 2007, Kenny Rogers, whom Oswald books, will play 30 casino dates nationwide. Tom Cantone, VP of sports and entertainment at the Mohegan Sun casino in Uncasville, Conn., says live music is a major component in modern-day casinos. "You really have to get into the event business to drive traffic and revenue on a consistent basis," he says. This summer alone, Mohegan Sun hosted 164 events across its three venues -- the 10,000-seat Mohegan Sun Arena, the 400-seat Wolf Den club and the 330-seat Cabaret Theatre. In 2006, 51 shows at the arena grossed $15 million and drew more than 387,000 fans, according to Billboard Boxscore. Mohegan Sun recently broke ground on a $740 million project set to include a House of Blues, Jimmy Buffett's Margaritaville restaurant and store, and a 1,000-room hotel. Full completion is scheduled for 2010. Steve Gietka, VP of entertainment for Trump Entertainment Resorts in Atlantic City, N.J., oversees booking at venues in Trump Taj Mahal, Trump Plaza and Trump Marina. He says that while live entertainment certainly helps sell hotel rooms and fill restaurants and nightclubs, there's a price to be paid. "Because we're casinos, and agents, artists and managers believe that their artists help us drive gaming revenues, we typically pay premiums when compared to regular promoters," Gietka says. Indeed, William Morris' Oswald says that casinos are in a good position to buy plenty of talent. "They have ancillary income in the form of bar, food and obviously, casinos," Oswald says. "So it's easier than the guy who is only going to make money from the box office." But there are also challenges with casino venues, No. 1 being overbooking, according to Oswald. In some markets, casinos are bringing in act after act, which can sometimes exhaust the local fan base. "They've made it real hard to sell tickets," Oswald says. "The fans are spoiled because they can go down to the casino on any Friday night and there will be a big act." As a result, promoters are forced to lower ticket prices to attract concertgoers, he adds. But hosting too many concerts has never been a problem for Mohegan Sun, which is owned by the Mohegan Tribe. Arena concerts scheduled through October include such diverse acts as Jennifer Lopez and Marc Anthony, Big & Rich featuring Cowboy Troy, Van Halen, Mana, Maroon 5, Phil Lesh and Kelly Clarkson. And with the 25-and-older demographic expanding, Cantone remains confident that casino bookings will reflect their tastes. "It used to be where an older market went to have their entertainment fix. But now the twentysomethings are going. If you're young, want to go out and play poker or blackjack, then catch a cool concert, where else can you go?" From December, 2007 http://www.reuters.com/article/music...25804420071014 Just the Way He Is Dan Barry SAG HARBOR, N.Y. SOMEONE must sing a proper song of farewell for Shea Stadium, the nice try of a coliseum in Queens, as its dismantling draws near and a new ballpark rises just yards away. But that someone must be able to convey emotions specific to the place, emotions beyond the sadness of many lost Mets summers and the euphoria of two World Series championships. There is so much more. The romantic idealism and the yeah-right realism. The quickness to mock and to take offense. The need to prove oneself better than any Upper East Side twit and the guilt from having conceived such a hollow ambition. The restlessness, angst and ache of the striver. The Long Island of it all. Of course the meeting of Shea muckety-mucks to discuss who should sing this farewell probably lasted as long as it took to say: Billy Joel. Those of you who detest Billy Joel, you self-assured music critics and self-appointed cultural arbiters, you who have Reagan-era flashbacks of being stuck in summertime traffic in a car with only AM radio and hearing “Uptown Girl” or “Pressure” or “Tell Her About It” no matter what button you push and traffic still isn’t moving — consider this: When tickets went on sale several months ago for an absolutely final Shea concert, starring Mr. Joel and taking place this Wednesday, more than 50,000 were sold in 48 minutes; a sellout. Promoters were so, um, touched by this response that they added a final, we mean it this time, absolutely final show for Friday; those tickets sold out in 46 minutes. That’s a lot of Brendas and Eddies buying tickets. Not bad for a 59-year-old piano player who hasn’t released an album of new pop songs in 15 years. A few weeks ago, during a sound check just hours before another sold-out Billy Joel concert at the Mohegan Sun casino in eastern Connecticut, the drummer tested his drums, the saxophone player his sax. Then a short, stocky man in a T-shirt and baseball cap limped up the steps and gimped over to the piano, looking every bit the road-battered stagehand making one last check for Mr. Joel. He sat down, turned his cap around, propped his coffee mug on the piano — oh, the boss ain’t gonna like that — and started fluttering with the keys. A medley of opening strains to old Billy Joel hits echoed through the empty arena, then segued into a little of Beethoven’s “Emperor Concerto.” Satisfied, the man collected his mug and hobbled offstage to have a cigarette. Two hours later, this same balding, gray-haired man — Himself, of course — sat before the same piano, in a dark blazer and blue jeans but still looking just as short and stocky. As 10,000 people rose to their feet, a not so angry, not so young, but energetic as hell Billy Joel ripped into the first of two dozen songs, most of them written before the births of the women worshiping him from the front rows. And here’s the thing. He gets it. “I’m just this shlubby guy who plays the piano,” he says later. He knows that save for those large, please-don’t-hurt-me eyes, he looks nothing like the bushy-haired young man communing with a white mask on the cover of “The Stranger,” the album that launched him into the stratosphere, now being released in a 30th-anniversary deluxe package. (What happened to the 25th anniversary?) Nothing like the baby-faced entertainer asserting in old video loops playing in the casino gift shop that he didn’t start the fire — a fire that, post-9/11, seems almost innocent. While Bruce Springsteen has stalled the aging process through blessed genes or some Faustian bargain, Mr. Joel looks like every heartbreak, bad review, car crash and attendant tabloid dig has exacted a physical toll, so much so that if those adoring young women were to encounter him at the mall, he says, “they wouldn’t look twice at me.” But he clearly understands this; he even seizes upon it to mock the myth of the ageless, unapproachable rock star. “I’m from Long Island; I’m not going to delude myself,” he says. “I know what I look like. And I want them to know that I know how absurd all this is.” He lets them know by often announcing the release dates — “This next song came out in 1977” — as if to suggest both the song’s endurance and a disbelief that he still gets paid to sing it. And he lets them know by poking fun at himself. During this particular Mohegan Sun concert, he recalled a tabloid photograph many years ago of him on the beach, reaching up to hold hands with the tall model Elle Macpherson. “I looked like Bubbles the Chimp,” he told the audience. One could argue that Mr. Joel can afford to be so self-deprecating. According to the Recording Industry Association of America he is ranked sixth among the top-selling artists of all time, behind the Beatles and Elvis Presley but ahead of Elton John and Barbra Streisand. He has the financial wherewithal to surprise his wife, the cookbook author and television correspondent Katie Lee Joel, with the darnedest thinking-of-you gift: a house in the Hamptons worth roughly $16 million (not to be confused with other multimillion-dollar properties he owns, including an estate in Oyster Bay). Sitting in another of his homes, this one facing his boat basin in Sag Harbor and large enough so that his collection of vintage motorcycles takes up little space, Mr. Joel says he knows what I am thinking, since I too am from the lower-middle-class middle of Long Island, having grown up 15 miles from Hicksville, his hometown. “I know: rich bastard,” he says. “I used to feel awkward about it, but I shrugged it off. It’s all luck and sweat. But I earned it — though I can’t justify the amounts.” Mr. Joel often expresses an opinion or emotion, then almost immediately holds that opinion or emotion up for analysis, as though running it through some internal truth check. He expresses pride in his work but doesn’t want to brag. He makes crazy money but isn’t saying he’s worth it. He mocks himself before someone else gets the chance. If you’re tired of hearing “Just the Way You Are,” well, he’s tired of playing it. (“It’s a wedding song,” he says. “I also feel hypocritical. I divorced the woman I wrote it for.”) If you wince when you hear “Honesty,” well, so does he, on the inside. (“You hypocrite,” he says he thinks to himself. “Since when are you Mr. Sincerity?”) And if he doesn’t sing “Uptown Girl,” he mimics what you’re thinking with a slight rise in his voice: “He’s probably mad at Christie.” In fact it has nothing to do with Christie Brinkley, his second ex-wife, but with the lost ability to hit the very high notes with consistency. He may be one of the most successful performers in the world, a member of the Rock and Roll Hall of Fame, an extraordinarily gifted musician who can move from rock to ballad to soulful doo-wop, who can capture with a few spare words the dreams and disappointments of clerks and secretaries rocking their lives away on the Long Island Rail Road. But he acts as though he still worries what the guys standing outside some 7-Eleven in Hicksville might say, because the worst that they can say is: He forgot where he came from. He’s full of it. A fake. Mr. Joel is occasionally dismissed as inauthentic, as more of a Tin Pan Alley jinglemeister than a rock musician. While he says the question of authenticity is contrived, he defends himself by resurrecting a couple of pet conspiracy theories. First, he plays piano, suspect instrument of the rich, rather than guitar, revered instrument of the poor. And second, he comes from Long Island — and really, the thought goes, what hard-knocks artistry could possibly emerge from the land of suburban tracts? The truth is, if rock-star authenticity means having endured pain and tribulation, self-created and otherwise, then Billy Joel sits in the V.I.P. room. His Jewish grandparents fled Europe to evade the Nazis, leaving behind a successful business. He was 8 when his parents split up and his father returned to Europe. His mother worked as a bookkeeper, paying a few bucks a week for her gifted son’s piano lessons. He took up boxing to answer the bullies who teased him about playing the piano; he’ll gladly show you the unevenness of his damaged nose. He didn’t graduate from high school because he was already a working musician, helping his mother pay bills by performing in bars and clubs from Mineola to Montauk. Along the way he identified and teased out certain themes about Long Island, his world. He cites a few as he sits in his Sag Harbor home, sipping coffee: how the city that our parents escaped became the first place we wanted to go; how we Long Islanders have an inherent inferiority complex; how we use ridicule and sarcasm to show affection. “Everything was testing, testing, testing,” he says. “Testing your manhood, testing your humor — really, testing your friendship.” He attempted suicide when he was 21 and spent three weeks in a Long Island hospital’s psychiatric unit, where he says his time with the profoundly troubled gave him perspective. “I’d go up to the nurse’s window and say, ‘Hey, I’m O.K., but these other people are really crazy,’ ” he recalls. “They’d just hand me my Thorazine.” He made it big, really big, then lost money and his trust in some close advisers. He made back his money and more, smashed up cars and motorcycles, and married for a third time, in 2004, to Katie Lee, a woman more than 30 years his junior. A few months later he went into rehab. “I realized I was still drinking too much,” he says. “And I wanted to fix it.” All this has given deeper resonance to his lyrics, many of them written during his precocious youth. When asked which of his songs make him think, Ah, at least I got that one right, he immediately cites two: “Vienna” (1978), a celebration of a life’s worth at every age, and “Summer, Highland Falls” (1976), a meditation on emotional extremes. His back and forth between sadness and euphoria may have led to effective songwriting over the years, he says, but he now strives toward the more comfortable middle ground of contentment. There was a time when he would read a bad review aloud onstage, fulminate and dramatically rip up the article to the cheers of an audience that “most of the time didn’t know what I was talking about,” he says. Now a bad review doesn’t ruin his life. “I think that was a Long Island thing,” he says. “Someone would take a swipe, and I felt compelled to swing back.” There was a time when he resented his signature song, “Piano Man,” when he simply refused to sing about its Paul, the real-estate novelist, and Davy, forever in the Navy. Now he accepts his role as patron saint of all those who provide wallpaper music in open obscurity, like the slumped man playing for the early-bird crowd at a Sag Harbor restaurant just around the corner. “I made peace with it,” he says — so much so that the song now often closes his concerts. None of this should suggest that Mr. Joel has achieved a constant state of inner peace. “When I’m low, I’m very low, and when I’m euphoric, I’m very euphoric,” he says. “Which is why I seek contentment. And I wish I was less discontent.” These days Mr. Joel works on original instrumental compositions, preferring what he calls a more abstract form of expression. Still, he continues to perform in concert, singing songs he has sung 1,000 times, 10,000 times. Why? Because he can. Because it’s the greatest job in the world. And, he says, “Because people still want to see me do this.” They do, because they get it too. The Brendas and Eddies of yesterday, who long ago “bought a couple of paintings from Sears,” and the Brendas and Eddies of today, buying their wall decorations at Target. Those who moved out and wish they hadn’t; those who didn’t move out and wish they had. Those who didn’t start the fire but lived through it. A few nights from now they will file into a doomed stadium that will be remembered as much for its tragicomedies as for its triumphs. They will fill those uncomfortable seats. And when a short, stocky, bald man appears onstage, they will roar in recognition. http://www.nytimes.com/2008/07/13/ar...ic/13barr.html |
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