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Old 22-12-05, 09:57 PM   #1
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Join Date: May 2001
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Default Peer-To-Peer News - The Week In Review - December 24th, ’05

"It's absolute paranoia — at the highest levels of our government." – Rich Hersh

"I tell you, he's President George Bush, not King George Bush. This is not the system of government we have and that we fought for." – Sen. Russell Feingold, D-Wis

"The odds against being taken to court for downloading are…60 million to 1." – Nick Parker

"We see piracy being contained." – Edgar Bronfman

"No matter how frustrated I may be about the legal or illegal ways in which other people may reduce the value of my property, it's not rational to use the term 'theft' to describe it. Even if the value of my property is reduced to nothing, I still posses the property and thus nothing can be claimed to be stolen." – Russell McOrmond

They Like To Watch

Web pages are increasingly filled with reports of government surveillance systems either in place or proposed. It’s not surprising. Once something is possible, it’s usually tried, somewhere. And digital information capturing has certainly become possible, and cheap. It’s now so easy to spy on your own people governments can barely restrain themselves, so while a dangerous development it’s no surprise it’s being done, even here in the land of the free. What is surprising is the reaction of the people, or at least the ones in democracies, especially after warnings from authors like Bradbury, Orwell and Huxley. Two of the biggest reasons for this are a post 9/11 fear of terrorists and the media companies’ crass manipulation of public opinion; government policy fueling irrational fear and the copyright cartels’ equating sharing with terror. The heads of congressional policy committees nod in lock-step whenever any company anywhere tells them of business losses and proposes solutions based on surveillance systems. The public, and by that I mean you and I are never invited to testify on how we feel about total strangers knowing our private affairs, nor interestingly enough are laws ever crafted that impose real penalties against the misuse of the massive information swept up by these ever growing spynets. That’s a telling point about where the loyalties of lawmakers lie, because it’s certainly not with us. They say they push through these laws to prevent crimes from occurring, but whatever protections they may produce always seem to flow towards corporations and states. They rarely consider criminal information abuse, which is surely more devastating to the individual, and certainly more common. From cops selling your personal details for cash to state and federal workers using your private information against you in business or politics, information abuse is increasingly widespread and devastating to its victims. When carrying a camera into a movie can get you twenty years behind bars, the criminal misuse of information gathered by high tech sweeps against law-abiding citizens remains pointedly unaddressed.

Two cases are ringing alarm bells this Christmas. One is President Bush’s furious acknowledgement he’s been spying on U.S citizens for years without warrants or even probable cause, and the U.K.’s colossally invasive program to track its citizens’ as they travel through their own country. Orwellian barely begins to describe the scope of these astonishing abuses of power, especially the situation in England. Soon when you drive in the UK you will be watched and tracked wherever you go, at all times, and a database will be complied of your movements and held for years. We’re not talking about known criminals here - they are already being surveilled. England’s lawmakers have now decided that law abiding citizens must be monitored continuously. No doubt exceptions will be made that exclude the powerful, for "security reasons" of course, and as always such laws will lightly apply to the elite if at all, but everyone else rest assured; the day is fast approaching where every second of every day your movements will be watched and noted. Shadowy bureaucrats will own a dossier on you of heretofore unimaginable reach and detail, and just as assuredly this information will be used to destroy the lives of even the most honorable among you. Blackmail comes to mind immediately, but it will lead to all sorts of danger to one's job, for one’s love life and for one's family and friends. It will permeate society like acid.

I’ve never sensed the British were all that comfortable with the concept of equality, what with their acquiesce to a parasitical aristocratic class and acceptance that these "lords" are their "betters", but this is astounding even for them. It separates the "commoners" from the rulers with an unbridgeable gulf. It makes the people impotent, little more than chattel corralled by onerous laws, reduced to grim lives solely in support of their owners.

Perhaps everyone wants to be "looked-after" and assured they’re being protected. Just be careful what you ask for. There are those who understand you better than you think and they are decidedly not your allies. By the time you’ve realized they posses you, it may be impossible to pull them off.

No Sales Final

I was standing at the counter yesterday buying my dear mother a present when a woman next me laughed and said, "What are you doing here so early? My husband won’t be shopping until the day before Christmas!" I apologized to males everywhere for grabbing such a long four-day jump on the holiday, but I just couldn’t think of a thing to get anybody this year. Staring at a 20” screen was going nowhere - the Web was no help - so I finally decided to throw myself into the fray, get out, take a look around and handle the goods. That barely worked either, but it did I think jump-start my consumer brain functions and once firing I was able to get on with the process. I launched into the Connecticut Shopping Experience, for a few hours anyway, and managed to grab a little something personal for everyone on my list. I try to shoot for things that people want – but won’t get for themselves: Too expensive, too silly, to unjustifiable a purchase you know but cool. No sooner had I got something than I saw something better, but that’s typical for this time of year. There is the law of diminishing returns and at some point I had to cut my losses and go home. Decisiveness is next to godliness and all that. I did make sure I included those new "Gift Receipts" in every box and maybe I’m mellowing but it won’t bother me too much if my hard thought choices become mere suggestions in the days following Christmas and, who knows, maybe even wind up under somebody else’s tree. In any event I’m sure I’ll be making that trip to the stores to exchange a thing or two myself, or maybe just to view the process. Better living through swapping you could say, and it’s true.

Hey, talk about presents – the French Parliament voted to legalize file-sharing! While it gauls me governments think we need their permission to trade freely among ourselves when it’s they who need our permission to form, it’s still nice to see some lawmakers somewhere, anywhere, thinking about us for a very rare change. No doubt this unusual amendment will be followed by something crushingly punitive, but it does make for a festive treat this week.

Whatever it brings, I hope you have a wonderful holiday.

Keep sharing.



December 24th, ’05

30 to 28

French Parliament Votes to Allow Web File Sharing

The French Parliament voted last night to allow free sharing of music and movies on the Internet, setting up a conflict with both the French government and with media companies.

If the amendment survives, France would be the first country to legalize so called peer-to-peer downloading, said Jean-Baptiste Soufron, legal counsel to the Association of Audionautes, a French group that defends people accused of improperly sharing music files.

The law would be a blow to media companies that increasingly use the courts worldwide to sue people for downloading or sharing music and movie files. Entertainment companies such as Walt Disney Co., Viacom Inc. and News Corp.'s Fox say free downloading of unauthorized copies of TV shows and movies before they are released on DVD will cost them $5 billion in revenue this year.

``The deputies used this vote to show their independence from the government, but they don't know what they are doing,'' Nicolas Seydoux, chief executive of French cinema company Gaumont SA, said in an interview on France Inter radio. ``We are not trying to ban anything, just to make sure the work of others isn't stolen.''

The government can overturn the amendment, either by re-opening debate or if the Senate votes it down when the bill moves to the upper house. French Culture Minister Renaud Donnedieu de Vabres has asked that parliament re-open debate on the amendment today, Agence France Presse reported.

The amendment, which is attached to a bill on intellectual property rights, states that ``authors cannot forbid the reproduction of works that are made on any format from an online communications service when they are intended to be used privately'' and not for commercial use.

Parliamentary Debate

Parliament is debating a bill that would transpose a 2001 European Union directive on intellectual rights into French law. The government had introduced articles into the bill that would make file- sharing akin to counterfeiting, punishable by prison sentences of up to three years and fines of up to 300,000 euros ($355,000).

Consumer groups such as UFC-Que Choisir had protested the government's proposed bill.

The amendment voted at about midnight yesterday, which would replace the contested articles, was introduced by Alain Suguenot, a deputy from the ruling Union for a Popular Movement.

The amendment was approved 30 to 28, with 22 members of the UMP voting in favor. While there are 577 members of the lower house, few were present for last night's vote.

`At Risk'

``The vote puts the livelihoods of people in the music and film industry at risk,'' Gaumont's Seydoux said.

Soufron of Audionautes said any system that allowed unlimited downloading could be accompanied by a system similar to the royalty tax that exists for blank compact disks and DVDs.

Under the amendment, Internet service providers would pay part of their revenue to Sacem, a group that has handled artists' royalties since 1851, Soufron said. Details of the payments are not in the amendment. The group redistributed 578 million euros to musicians last year.

Legal music downloading sites such as Apple Computer Inc.'s iTunes have French-language sites, as do major music companies such as Vivendi Universal SA. Last night's amendment would allow someone having bought a song from one of those sites to share it with family or friends.

P2P Population Nears Record High
Thomas Mennecke

During the middle part of 2005, the P2P population experienced a slight plateau as it hovered around 9 million total connected users. This plateau also witnessed a slight decline in total P2P users, dropping from a peak of 9.6 million users in August to 9.1 million users in October.

P2P statistical information is gathered by BigChampagne, an emerging leader in gauging the strength of this community (you can read their gathering techniques here.) These statistics are in close parallel with those monitored by Slyck.com. In addition, it's noteworthy to mention the approximately 9 million individuals connected to various P2P networks at any given time do not include those participating on BitTorrent. Due to the nature of the BitTorrent community, it's extremely difficult to garner any exact number of total participants.

The temporary plateau and slight decline of the P2P population represents a normal cyclical pattern associated with the file-sharing community. Various reasons, such as returning or departing college students, broadband penetration, computer and MP3 player sales, all have an impact on the strength of the P2P community. While the behavior of these factors may result in a minor decline or stagnation, the overall trend has been unprecedented growth. Indeed, the month of November 2005 represents one of the strongest months yet with a total of 9,465,000 total connected users - third only to August and July with 9,620,000 and 9,496,000 total connected users.

The resuming growth of the P2P population defies the RIAA's lawsuit campaign against individual file-sharers, and more remarkably defies the MGM vs. Grokster decision. Despite the Supreme Court’s decision on June 27th, 2005, the P2P population grew from 8.8 million in June to its present number. This represents the addition of over 500,000 file-sharers. This study further dismisses the NPD Group’s latest P2P research, which found the number of people downloading at least one song on file-sharing networks had declined by 11%. The technology community largely ignored the NPD Group’s study, much like their last one, as it’s information gathering techniques are not consistent with the more realistic habits of file-sharers. (Would you download a song if you were being monitored?)

Another RIAA copyright enforcement tactic these statistics directly confront is the decision to serve commercial P2P developers with cease and desist letters. On September 13, 2005, the RIAA sent several leading commercial P2P developers cease and desist letters, ordering them to prohibit users from infringing on their member's copyrights. Commercial developers responded in various ways, such as WinMX (FrontCode) shutting down, MetaMachine "throwing in the towel", and Ares Galaxy going Open Source. The P2P community responded by continuing their sharing habits unabated.

The RIAA may be winning over the courts and legislators, yet these victories are proving hollow. Their courtroom and legislative successes are yielding little in the way of tangible benefits as the P2P population continues to grow. If there's one message associated with the continued growth of file-sharing, it's that people continue to want unencumbered (DRM–free) access to music. Many have argued that Napster and Rhapsody, and to a lesser extent, iTunes, simply do not provide that.

It’s interesting to note the file-sharing population is continuing to march forward despite the rapid decline of the FastTrack network. As corrupted files and lawsuits continue to plague this network, the P2P population has grown aware of these concerns and taken refuge in a multitude of other communities. Smaller private networks, eDonkey2000, Gnutella, BitTorrent and Ares Galaxy have all benefited from FastTrack’s decline.

Courtroom and legislative successes aside, the statistical news for the entertainment industry has been unfavorable. Last week it was reported that authorized digital music sales stalled for the first time since introduction. Although a minor decline (.49%) from the third quarter, it represents a stagnated authorized digital music industry. Conversely, the P2P population grew by 4% since last month and shows little sign of slowing down. Considering the total number represented by BigChampagne does not include those participating in the BitTorrent community, the total population of 9,496,000 is a very conservative estimate. Judging by the sheer scale of BitTorrent, especially its consumption of over 60% of an ISPs total bandwidth, these days are likely the strongest yet for P2P and the file-sharing community.

ReplayTV To Launch TV Recording Software For PCs

Digital video recording pioneer ReplayTV plans to announce on Monday it will start selling software to allow personal computers to tune in and record live television next year in a deal with Hauppauge Digital's Hauppauge Computer Works.

Hauppauge's WinTV-PVR tuner-encoder card, which lets PCs tune in and record live television, will be sold with ReplayTV software starting next year in North America.

ReplayTV, owned by D&M Holdings, said it has successfully restructured over the past year, and its digital video recorder business is "solidly profitable."

A company spokeswoman said ReplayTV will complete its transformation from a hardware manufacturer to a DVR software and services provider with the sale of all remaining 5500 Series DVR models, probably by the end of 2005.

ReplayTV and TiVo were the first to market digital video recording capabilities that allow viewers to pause, rewind and replay live broadcasts by recording them onto computer hard drives.

More product and pricing details for ReplayTV's software will be announced in 2006, the company said.

Still crazy after all these years

Copyright Group Takes New Napster To Court
Chris Lewis

Napster, the infamous song downloading service that was once shut down by the courts, allegedly continues to break copyright law as a fee-based online store, according to a publishing group that has filed a federal lawsuit in Nashville.

MCS Music America, a Nashville-based company that administers copyrights for about 45,000 songs, claims Napster has put hundreds of songs controlled by MCS and its publisher clients on Napster.com without obtaining the proper licenses for paying royalties.

Among the songs named in the suit are such hits as “Wipe Out,” “Even Cowgirls Get the Blues,” “CC Rider” and “The White Cliffs of Dover.”

MCS Music America — which does business as Pollyday Publishing, Su-Ma Publishing Co. and C Minor Music — filed the copyright infringement suit Friday on behalf of 27 publishing companies, many of them based in Tennessee.

“We believe it’s a very significant case,” said Stephen Grauberger, a Goodlettsville attorney who filed the case for MCS. “I really don’t have much of a comment until we get a response and see what their position is.”

Napster officials have not been served with the suit, said Dana Harris, vice president of corporate communications.

A prior incarnation of Napster made headlines in 2001 when it was shut down after courts found it aided the free and illegal downloading of copyrighted material through a central server. Roxio Inc. purchased Napster in 2002 and launched the paid subscription service the following year.

For a monthly fee of $9.95 a month, subscribers can listen to unlimited songs that are played, or streamed, over the Internet and download them to listen to offline. For a fee starting at 80 cents per song, users can download the music to permanently keep and copy.

Napster sent MCS a form seeking a licensing agreement, but neither party signed it, the suit states. After getting the inquiry, a MCS employee subscribed to Napster and found the songs were being used without permission.

The suit is seeking $150,000 in damages per violation on two counts involving both the downloaded song and the streaming version. The number of songs involved hasn’t been tallied, but they number in the hundreds, Grauberger said.

A couple of digital copyright consultants said they were surprised that Napster would be hit with such a lawsuit.

“They’re certainly trying to do the right thing; they’re famous for that. I’m surprised it has to be worked out with a lawsuit,” said E. Michael Harrington, professor of intellectual property and music business at Belmont University.

He said copyright law is clear: Users of material have to pay a negotiated rate to both the writers and publishers of the underlying work as well as the owners of the sound recording. But, he said, mistakes can happen and are often resolved administratively.

Phil Leigh, a Florida-based digital media analyst, said the lawyers are taking advantage of a law that allows victims of copyright infringement to collect up to $150,000 in damages per violation.

“If there has been a copyright infringement, they’re certainly entitled to damages, but it appears to me they’re simply being greedy and manipulating the statute to collect damages not within 1,000 miles of what they actually suffered,” Leigh said.

New Spyware Claim Against Sony BMG

The Texas attorney general said on Wednesday that he added a new claim to a lawsuit charging Sony BMG Music Entertainment with violating the state's laws on deceptive trade practices by hiding "spyware" on its compact discs.

Attorney General Greg Abbott filed the original lawsuit in November, accusing the company of violating state anti-spyware laws by embedding software in its CDs and media player to monitor users' habits.

The new charges brought by Abbott contend that MediaMax software used by Sony BMG to thwart illegal copying of music on CDs violated state laws because it was downloaded even if users rejected a license agreement.

"We keep discovering additional methods Sony used to deceive Texas consumers who thought they were simply buying music," Abbott said in a statement.

The original lawsuit contends that Sony BMG secretly installed copy-protection software, using XCP programs, that was extremely difficult to remove from users' computers.

Sony said it has recalled the CDs, which feature music from 52 popular artists including Ray Charles, Frank Sinatra, Louis Armstrong and Celine Dion.

Critics have said the MediaMax software lets the company track customers' listening habits even if customers reject maker SunnComm's terms in a licensing agreement that appears upon installation.

The Texas attorney general said both the MediaMax and XCP software can put customers' computers at risk.

"Malware" was detected in a mass e-mail in November that was designed to exploit the Sony BMG software and enable hackers to access people's computers by bypassing firewall protections.

Sony BMG denied the MediaMax software was hidden and said it does not collect the personal information that spyware typically does.

"We are in an ongoing dialogue with the Texas Attorney General and as part of that discussion we believe we will establish that Sony BMG has responded appropriately to the issues raised today--particularly about the MediaMax software installation," a company spokesman said in a statement.

Men Face Criminal Charge For Xbox Tampering

U.S. prosecutors have charged three men with copyright infringement for selling modified Xbox consoles that enabled the original video game machine from Microsoft Corp. to play pirated games.

The criminal complaint filed in federal court in Los Angeles on Monday named ACME Game Store co-owners Jason Jones, 34, and Jonathan Bryant, 44, as well as Pei "Patrick" Cai, 32.

The complaint alleges that Jones and Bryant sold Xbox systems that Cai modified with chips and hard drives that allowed users to copy rented or borrowed games onto the console for future play.

All three men are charged with one felony count of conspiracy to commit copyright infringement and to violate the Digital Millennium Copyright Act. The charge of conspiracy carries a maximum possible penalty of five years in federal prison.

Lawyers for the men, who will be summoned to appear in U.S. District Court in Los Angeles in late January, could not be immediately reached for comment.

Jones and Bryant demonstrated the modified Xbox game consoles in their Melrose Avenue store. They charged from $225 to more than $500 for the modifications, depending on the extent of the modifications and the number of games preloaded onto the hard drive, according to a statement from prosecutors and the complaint affidavit obtained by Reuters.

During the investigation, undercover agents with U.S. Immigration and Customs Enforcement paid $265 to have a modification chip, a hard drive and 77 pirated games installed on an Xbox, according to the criminal complaint.

Microsoft released the Xbox 360, the new version of its game console, on November 22 in North America. The premium version of the system sells for $400 and is sold-out at many retail outlets.

The original Xbox was released in late 2001 and now retails for around $150. Games for the system cost up to $50 each.

Forced speech

To Settle Lawsuit, Grandfather Will Speak Against Film Piracy
Bob Purvis

A 67-year-old Racine man who was sued for up to $600,000 by a group of major film studios over four movies his grandson downloaded will lecture children about Internet piracy as part of an out-of-court settlement.

In the settlement reached late last week, Fred Lawrence agreed to work with the movie companies and the Milwaukee Bar Association in coming weeks to develop a program to teach local families and school children about copyright law, said his attorney, Jill Gilbert Welytok.

"My client maintains that at the time the downloading occurred, neither he nor his grandson understood that they were infringing the movie studios' copyrights," Welytok said. "This is an area of the law where education rather than litigation is appropriate."

Lawrence's grandson, then 12, admitted downloading "The Incredibles," "I, Robot," "The Grudge" and "The Forgotten" over a peer-to-peer electronic file- sharing network last December, not knowing it was illegal.

Lawrence was sued in federal court in November after he ignored a letter offering to settle the matter out of court - a letter similar to one sent in March to hundreds of alleged illegal file sharers across the country.

Although Lawrence and his grandson live in Racine, they will actually speak to elementary school children at Maple Dale School in Fox Point when the program rolls out in January, Welytok said.

Lawrence also will pay an undisclosed amount to the studios, Welytok said. Under the agreement, that sum is to remain secret.

Lawrence previously rejected an offer to settle for $4,000, which was made days after news of the lawsuit became public.

"The Lawrences are honest people and have taken financial responsibility for the inadvertent infringement that occurred. They do not condone copyright infringement and are saddened that they inadvertently infringed someone's rights," Welytok said.

The Motion Picture Association of America said they were pleased with the compromise.

"The purpose of these lawsuits is not only to punish people for film piracy but to inform them about the law," said Kori Bernards, an association spokeswoman. "With respect to Mr. Lawrence's family, they offered help to inform people about piracy, so we are taking them up on their effort."

The association's lawyers filed a motion to dismiss the lawsuit Wednesday, but details were not settled until late last week, according to Welytok.

Lawrence had argued that although he felt bad that his grandson had downloaded the movies, he couldn't afford to settle the lawsuit and didn't think it was fair to punish him for something his grandson did.

Both parties say the settlement was mutually beneficial.

"At the end of the day, this is a very constructive outcome that will help many people understand the importance of respecting copyrights and intellectual property," Welytok said.

Artists Revolt Against DRM
Posted by Suzi Turner

My Morning Jacket, the artists who recorded the copy protected CD "Z" I mentioned here, are doing more than protesting Sony BMG's use of DRM spyware. They are revolting. Yesterday I read that My Morning Jacket was doing their own recall of the affected CDs. Now I see they are burning unrestricted copies of their CD and mailing them to users. Hmm… I wonder if they are breaking the law under the DMCA.

US band My Morning Jacket has responded to fans' complaints about copy protected Sony BMG CDs by sending them DRM-free copies of its album.

The group began burning unrestricted CDs after fans found that they could not transfer their album 'Z' (pictured) to their iPods. Their manager, Mike Martinovich, told Rolling Stone that Sony BMG should drop DRM on CDs entirely.

The Rolling Stone article says Sony BMG is reconsidering their plan to use copy protection on all their CDs. If a lot of artists refuse to sign with Sony BMG and other companies using copy protection and go indie, perhaps the big labels would get the message. Wikipedia has an extensive list of indie record labels.

More here about My Morning Jacket's revolt.

MMJ are by no means the first act under the Song BMG umbrella to express their displeasure over the corporation's attempts to curb piracy via copy-protection software — the Foo Fighters, the Dave Matthews Band and Switchfoot have also done so — but they're likely the first act to publicly offer to burn individual copies of their album for fans.

Sony BMG had no comment on MediaMax issue or My Morning Jacket's response to it.

If you say so…

Swapping On The Ropes
Steven Musil

Recent court activity suggests that illegal song swapping may be facing its swan song.

A Chicago woman who downloaded songs for free from the Kazaa file-sharing network violated copyright law and has been ordered to pay a $22,500 fine to the record labels. In what appears to be the first U.S. case of its kind, the 7th Circuit Court of Appeals rejected Cecilia Gonzalez's arguments that she was merely "sampling" downloaded music to see which CDs she might want to purchase and that her sampling was protected under copyright law's "fair use" exception.

Gonzalez's claim that "she obtained 'only 30'--or 'only 1,300'--copyrighted songs is no more relevant than a thief's contention that he shoplifted 'only 30' compact discs, planning to listen to them at home and pay later for any he liked," the court said.

Meanwhile, the masterminds behind Kazaa could face time behind bars in Australia after the record industry initiated contempt of court proceedings, claiming an earlier ruling wasn't adhered to. Record companies allege that Sharman Networks, the owner of Kazaa, didn't comply with an Australian Federal Court order to modify the software to ensure 3,000 keywords would be filtered by Dec. 5.

However, the judge in the case did not appear to be in a big hurry to put Kazaa's owners in jail.

"Contempt proceedings are fairly rare in this court and I've never yet sent anyone to jail," Justice Murray Wilcox said in the Federal Court in Sydney. "I've threatened to a few times, but there's always a first I suppose."

The number of United States households that swap music illegally online has dropped significantly since the Supreme Court's summer ruling against peer-to-peer software companies.

However, the number of actual music files being traded has stayed high, indicating that the most active downloaders remain online. The drop of 11 percent--from June, when an estimated 6.4 million households downloaded at least one music file, to October, when 5.7 million households downloaded at least one file--seems to show that the entertainment industry's campaign against file swapping is gaining momentum.

Kazaa Owners Back In Australian Courts

Peer to peer service operators Kazaa owners are back in Australian courts. The executives of the Sharman Networks might find themselves facing jail time if they are indeed found to be in contempt of court’s ruling regarding the usage of Kazaa application by web users in the country. the recording industry of the country has claimed that the software developed failed to comply with the court’s rulings.

Kazaa was instructed to add filters to their p2p application to prevent file sharing of digitally protected content by their users on the internet. The application developed decided to instead boycott the users in the country and disabled access to their sites to Australian IPs. However, recording industry claimed that this is not what the court demanded them to do and as a result, they were in contempt of the court’s ruling.

The court has said that it would be considering the contempt motion next month. Kazaa claims that they disapproved the new Australian users from downloading their software application and also warned existing users to stop using the tool to share files on the internet. However, this failed to please the industry people who have filed the contempt proceedings against Sharman CEO Nikki Hemming, Altnet CEO Kevin Bermeister, Sharman Networks, LEF Interactive, Altnet, and Brilliant Digital Entertainment.

Sharman and the record companies will now have a chance to put forward their claims on January 30.

Guidelines Set on Software Property Rights
Steve Lohr

To remove obstacles to joint research, four leading technology companies and seven American universities have agreed on principles for making software developed in collaborative projects freely available.

The legal wrangling over intellectual property rights in research projects involving universities and companies, specialists say, can take months, sometimes more than a year. This legal maneuvering, they say, is not only slowing the pace of innovation, but is also prompting some companies to seek university research partners in other countries, where negotiations over intellectual property are less time-consuming.

"This a great start to addressing the problem," said Peter A. Freeman, assistant director for computer and information science and engineering at the National Science Foundation. "It's a recognition by both sides that for precompetitive research, 'It's the science, stupid.' It's not the intellectual property."

The companies involved in the agreement, which will be announced today, are I.B.M., Hewlett-Packard, Intel and Cisco. The educational partners are the Rensselaer Polytechnic Institute, the Georgia Institute of Technology and the universities of Stanford, California at Berkeley, Carnegie Mellon, Illinois and Texas.

Concern about the issue of intellectual property restraints on collaborative research has been growing among academic and private-sector scientists. The new effort is a byproduct of a gathering of university and industry researchers in Washington last August, sponsored by I.B.M. and the Ewing Marion Kauffman Foundation in Kansas City, Mo., which studies and finances innovation and entrepreneurial activity.

The current problem, said Lesa Mitchell, a vice president at the Kauffman Foundation, was partly an "unintended consequence" of policies meant to encourage universities to make their research available for commercial uses, thus stimulating innovation and economic growth.

The tone was set, Ms. Mitchell said, by the Bayh-Dole Act of 1980, which allowed universities to hold the patents on federally funded research and to license that intellectual property to industry.

Since then, universities, like many corporations, have sought to cash in wherever possible on their intellectual property. The companies and universities have agreed to make intellectual property developed in open collaborations available free for commercial and academic use.

They have also agreed to a set of guidelines addressing the rights of the participating companies and universities, and the public.

The guidelines and framework for the agreement will posted this week at www.ibm.com/university, and at the Kauffman foundation's site, www.kauffman.org.

If you say so…redux

Music Pirates Walk The Plank
Kevin Allison

HAS the music industry reached a turning point in its battle against illegal music downloads?

Edgar Bronfman, chief executive of Warner Music Group, seems to think so.

"We see piracy being contained," Bronfman said, at an investor conference this month in New York. "The music industry is beginning to look better than it has for years."

Some music executives say 2005 may have marked a watershed for online music. But experience suggests the illegal trade in music protected by copyright is unlikely to go away any time soon.

There is some evidence to boost the optimists' case. Over the past two years, the Recording Industry Association of America has launched high-profile lawsuits against college students and others who trade in copyright music using file- sharing software.

A recent survey by the National Cyber Security Alliance, a computer industry group, found that the number of active file- sharing programs on respondents' computers had halved this year, from 22 per cent of home computers to just 11 per cent.

In November, the music industry won a big scalp after Grokster, the peer-to- peer file-sharing service, agreed to shut down as part of a legal settlement.

"There is increasing consumer understanding not only that download sites are illegal, but also that there are easier-to-use legal alternatives," says Dan Sheeran, vice-president of paid music services at RealNetworks, the owner of Rhapsody, a subscription music service.

Four years ago, when a lawsuit forced a shutdown of Napster, the first broadly popular peer-to-peer network, there were no viable online alternatives to Grokster to take Napster's place. Now, with Apple's iPod music player and the iTunes Music Store, which sells songs for US99c ($1.33), legal music downloads are in the mainstream.

Eric Garland, chief executive of BigChampagne, which tracks peer-to-peer activity, agrees the campaign against file-sharing has been felt. But he says talk of the demise of illegal downloading is overdone. "You've got people talking about online copyright now," says Garland. "People are sitting around having discussions about how you support an artist, and what's OK and what's not OK." Unfortunately, he says, the reality is, getting it on the brain is not the same as changing the behaviour.

One reason illegal file-sharing is likely to continue is architectural. Unlike Napster, which used an index of music on its system to help connect downloaders and hosts, Grokster and others are merely gateways for users to access one of several file-sharing networks on the internet.

"When you shut down Napster, you shut down the Napster network," Garland explains.

"When you shut down Grokster, you shut down a company but you don't shut down the network. Grokster is gone but these networks aren't controlled by Grokster or anyone else. They're open networks."

According to BigChampagne, the average number of users on peer-to-peer networks at any given time in October was 9 million, compared with an average of 6 million in October, 2003.

But growth of paid music services has remained anaemic. Apple, which accounts for more than 80 per cent of the pay-per-download music market, says it has sold more than 600 million songs since it opened its iTunes Music Store in 2003. Taken by itself, the number is impressive. But, compared with Apple's sales of more than 30 million iPods over the same period, that adds up to just 20 songs per iPod.

Even if the record industry does scare downloaders away from the mainstream file-sharing networks, users can still get their hands on free music elsewhere.

The Electronic Frontier Foundation, a digital free-speech advocacy group, says fear of lawsuits and a flood of low-quality junk files have led many downloaders to turn to so-called darknets: private, invitation-only networks that allow users to trade files anonymously.

"Infiltrating these private p2p circles is much more difficult than simply trolling public networks," the EFF says. One New York computer programmer who uses several darknets says he fears a recording industry lawsuit like "I fear getting hit by a cab while walking home".

New storage technology, such as HD DVD and Blu-Ray optical discs, will substantially reduce the cost of passing huge music libraries between friends. People who trade music this way run little risk of being found out. "No matter how Orwellian our society may become, the only two people who know about it are you and me," says Garland. But companies are forging ahead with new, legitimate online services. Along with Apple's iTunes, subscription services such as Rhapsody and a new, legal version of Napster have begun to enjoy some success.

"We are a very strong No2 against Apple's iTunes," says Laura Goldberg, chief operating officer of Napster's second legal incarnation. "But we think a subscription system is better value. It's just not economical to buy an evening's worth of music at 99c each."

But subscription services have limitations. For example, they tend to limit customer ability to copy, or transfer, music to other formats. Rhapsody last year launched Harmony software, which allows subscribers to load rented music onto iPods. But the music files are designed to disappear if a subscriber withdraws from the Rhapsody service.

Regardless of the advances in paid music services, "there has been no substitute for the old Napster," says Atri Chatterjee, co-founder of Mercora, an online music start-up. Mercora is taking a Google-like approach to online music by offering free, non-transferable downloads paid for by advertising.

That’s more like it

P2P Business As Usual
Nick Parker

The statistics bandied around by the recording industries belie the fact that not only is P2P well and thriving, as reported in Slyck, but that the numbers seem certain to continue to increase at an exponential rate over the next few years. How successful have the copyright enforcers been in their campaign to kill off P2P? Slyck explores the facts underlying the fear campaign being disseminated by the recording industries.

People who use P2P – file-sharers - form part of a thriving and growing community, fuelled by high prices, increasing social acceptance and a certain thrill at being able to get for nothing what other people have to pay dearly for. No longer viewed as shady undesirables, trading in pedophilia to fund drug operations and prostitution, the public are starting to see P2P users for what they are, ordinary people. And whilst a few of their number have admittedly paid a relatively high price for that pastime, the recording industry has achieved little in deterring those seeking simply what they want from the internet for free.

Taking account of figures produced by analytical experts such as Cachelogic and Big Champagne, around 60% of the available bandwidth of the Internet is used by file- sharers. This leaves less than 40% of the remaining bandwidth for browsing, emails, electronic transactions and the plethora of other uses that the Internet is put to. Given that the Internet is only available to around 15% of the world’s population at the present time, the continued growth of the Internet, not too mention the economic growth it spurs, result in its being viewed as far more important to the global economy than the stagnating recording industry.

The IFPI, the international voice of the collective recording industry representatives, have issued figures that show that 15,597 filesharers have been served with financial demands for copyright infringement in the US since September 2003. Their figures, drawn from a BBC article, infer that these have been a result of civil lawsuits. This is at odds with the facts, for not one contested suit has been won against anyone file-sharing for domestic purposes, only arguments about who is actually liable. More significantly, no suits have ever been issued in respect of anyone downloading only.

Arguably, a handful of cases have been heard in the USA that involve personal file- sharing, Santangelo, Leadbetter, Chan and Gonzalez, being the names that spring to mind. However, none of these have actually been contested on the basis of file- sharing, simply on the issue of liability. Despite the RIAA spin put on the Gonzalez case, she was not sued for downloading files but simply for distributing 30 of those files, which where in turn downloaded from her by MGM. If she hadn’t been file- haring, she would never have been sued. To this present day there has still not been a single precedent established against those who only download for personal use.

The figures published by the RIAA & MPAA don’t bear analysis, either. In the same breath that they tell us that 15,597 file-sharers have been served with financial demands for copyright infringement in the US, they tell us that there have only been 3,590 settlements. In other words, they have received a financial settlement in only 23.3% of cases. So, if the rest of them, all 12,007 cases, haven’t been taken to court and they haven’t settled, what exactly has happened to them? Statistically it seems that 76.7% of those caught in the USA just walked away. These are not statistics that the recording industries want people to hear.

The odds of being identified and having to settle are therefore of the order of 3,590:60 million, or 16,713 to 1 against. The odds against being taken to court for downloading are therefore an even more staggering 60 million to 1 against. Put into context, people have a 1 in 300 chance of being misprescribed in hospital or a 10 million to 1 chance of being involved in an aircraft collision and dying as a consequence.

In most (if not all) countries, domestic file-sharing continues to be a civil and not a criminal issue. In general terms, uploading or sharing can result in civil action, albeit that the odds are very small. Technically the same could arguably apply to those downloading only. In practical terms, nobody has yet been sued for downloading only, and the prospects of such a case being successful are less than diminutive. In the UK, the prospects of such an action are currently nil, given that the BPI have confirmed they have no intentions of taking such action.

Users of the FastTrack network (Kazaa users in particular, who have accounted for around 94% of those who have received demands for settlement) are migrating to other, safer networks. If the statistics bandied around by the RIAA are to be believed, Kazaa users have certainly shown themselves amongst the most prolific sharers of all, and should therefore be particularly welcome to the P2P community.

A report issued by Napster claims that a substantial increase in sales is being generated by people replacing music that has been lost to them over the years as well as those buying a second time so that they have their music in a more convenient format. The report concludes that people are replacing around 30% of their existing record collections, and many people naturally feel quite aggrieved at being expected to pay twice for the same recording. In addition to this the predicted 37 million new iPod users that Apple predicts will be using their products in the next 12 months and doubtless swell the ranks of those who not only download, but share their files. If Apple takes away the ability to use DRM free MP3 format files, concentrating their market on their proprietary AAC format, their products will undoubtedly lose much of their market appeal. Creative, arguably the inventor of the original portable MP3 player, are conservatively predicting 8 million new buyers of their own MP3 players over the same period. These figures will certainly increase once other mainstream consumer goods manufacturers come on line, such as Philips, Hitachi, Panasonic, Sanyo, Akai, etc.

To spur further growth, many artists are now leaking music to the file-sharing fraternity as part of a cynical marketing strategy, using P2P in the way radio was used over the years. A new brand of independents is starting to emerge, bands that shun the traditional recording contract approach and set out to make their marks before signing with the giants. For example, British band Kaiser Chiefs concede that they leaked material on file-sharing networks to bolster presales of their “I predict a riot” track and subsequent album. The Arctic Monkeys launched on the Internet, driving them to number one chart success. System of a Down have reportedly given up issuing presale releases in the knowledge that their albums are available to file- sharers long before the official release date. In addition, few can doubt that both Madonna and The Darkness, have shamelessly exploited file-sharing networks to bolster pre sales hype. Ironically, they are helping to publicize the availability of free music and attracting new members to our community.

The Grokster case was thought by many to signify the beginning of the end for file- sharing, as the “fair use” defense was unsuccessful. BigChampagne instead tells us that the growth has been unabated, with file-sharing doubling over the past two years. Only this week consumer researchers NPD Group claimed illegal downloads have fallen 11 per cent since the Supreme Court ruled in June that Grokster and other P2P companies were operating illegal businesses. However Eric Garland, CEO of established media experts BigChampagne, promptly disputed those figures.

"BigChampagne's aggregate data show that the period following the Grokster ruling represents a record high," Eric said in an email to Slyck.com. "In fact, in every month since Grokster (June), P2P activity is actually higher than it was in May/June, or at any previous point on the timeline."

Full details from BigChampagne are available in yesterday’s news article. (This weeks lead, Jack)

The future of P2P remains in the balance, although it seems the P2P fraternity is making far more ground than the recording industry. As P2P users approach critical mass, believed to be around 100m, perhaps the recording industries will step back and consider that they have seen this all before when they believed the combination of FM stereo radio and the cassette would signify the end of their world back in the 80s. Yet it inspired an unprecedented growth in music sales, much the same as the VCR did for the movie industry less than a decade later. Surely the lessons learned then should be equally applicable today?

One thing that is certain, the fear, uncertainty, and doubt caused by a handful of generally irrelevant cases against poorly represented members of the general public will do little to stem the rising tide of P2P in the mid & longer term, let alone attract any sympathy for the recording industry. The recording industries will have to live with the fact that file-sharing is simply not going to go away, and that they will have to adapt to survive. The message to file-sharers for the New Year is best summed up business as usual, but don’t get careless.

That’s more like it …redux

P2P File Sharing Is On The Rise

Organized Music's RIAA (Recording Industry Association of America) would have you believe its sue 'em all campaign is making a significant impact on the file sharing scene and the p2p community, and that as a direct result, business for the sites supplied and supported by the cartels is improving dramatically.

However, as p2pnet has been reporting consistently, there is no significant corporate online music business and although the IFPI claims there are 300 sites doing good business, only three are ever mentioned - the much-hyped iTunes, RealNetworks and Napster.

The latter two, though, are barely breaking even, to paint the brightest possible picture for them: they're certainly not prospering and in truth, iTunes is the only one that's doing anything - 600 million downloads since it went online in 2003, says Apple.

But even if that figure is accurate, iTunes is still a promotional vehicle for iPod, not a genuine music service whose raison d'etre is to sell music to the online public

We've been relying on BigChampagne for our statistics and on the left is the latest BC chart showing the p2p stats from November, 2003, until November this year.

They indicate the number of people around the world who were simultaneously logged onto one or more the p2p networks at any given time.

Go here if you want the Excel chart on which the table in the left is based.

'Ah,' you say, 'But that's around the world. The RIAA has been suing thousands of people in the US and there, the sue 'em all marketing scheme is making a huge difference.'

Not so.

One again, the number of people sharing files on the p2p networks in America is rising, and doing so very noticably.

In the US in November, 2003, on average, 2,498,431 were logged on t the same time at any given point in the day or night.

By November, 2004, on average, 5,445,275 people were online at any one time.

And by November this year, the number had risen to 6,530,408.

Music Industry Failing To Halt Illegal Downloads, Poll Finds
Owen Gibson

Despite a sustained record industry campaign to stamp out digital piracy, more than half of all consumers still download music illegally over the internet, a new survey
shows. The figures, which will worry record companies hoping to sell music to the millions expected to receive an iPod or similar this Christmas, show that 51% of those who currently download tracks do so illegally.

More than three-quarters of those surveyed admitted that they had illegally downloaded music at least once. By contrast, just one in six said they exclusively used paid-for services such as Apple's iTunes Music Store or Napster to buy music over the internet.

The survey, conducted by Mori for the internet service provider AOL UK, also highlighted a large degree of confusion among consumers about whether or not they were breaking copyright laws by using illegal sites. Only four in 10 said that they understood the law.

The British Phonographic Industry has spent much of 2005 getting tough with those who illegally share large volumes of music over the web. It has taken legal action against more than 150 internet users, half of whom have paid settlements of up to £6,500 to avoid court action.

Internationally, the record industry has targeted "peer to peer" sites that allow users to swap pirated tracks and won landmark legal rulings against Grokster in the US and Kazaa in Australia. But despite the fact that a large number of those targeted by the BPI are believed to have settled on behalf of their children, more than half of those surveyed would not ban their children from downloading music illegally.

One case involved a London jazz singer who was fined £2,500 after her 19-year-old son shared 1,330 songs using the family computer.

More than a quarter of those surveyed said that they had used the peer to peer service Limewire to download songs, compared with one in five for the leading legal alternative, the iTunes Music Store.

A spokesman for the BPI said that the number of tracks legally downloaded during the year had topped 24m compared with 5.7m the previous year. The mass popularity of devices such as the iPod and the growing number of homes with high speed broadband connections, together with a strong push by record labels to widen the choice of songs available legally, have contributed to the growth.

Record companies are also attempting to lure customers to legal sites by offering added extras or exclusive tracks. The fastest selling download to date is the version of Sergeant Pepper's Lonely Hearts Club Band performed by Paul McCartney and U2 at Live8 in July.

AOL, like other internet service providers, sees music as a major draw in persuading people to upgrade to broadband. To mark the launch of its Play Legal campaign, it will launch a new website to educate consumers and team up with rivals to adopt a new kitemark-style logo that will appear on legal download sites.

"This survey shows that there is still a lot of confusion out there about what is legal and what isn't," said Dan Patton, head of digital music at AOL. "We see it as our responsibility to educate and inform our customers." Record company insiders have privately criticised internet service providers in the past for adopting a hands-off attitude to whether their users were downloading music illegally.

The BPI's chairman, Peter Jamieson, said that he welcomed the new initiative. "The UK recording industry is working hard to make available its huge catalogue of recordings to the growing number of high quality legal services. Using unauthorised services is not just illegal, it is bad for music and bad for the music fan."

Got a Digital Music Library? Hoarder! Pirate!
Jon Newton

The corporate online music business so far exists only in the minds of the media and those trying to promote it, and iTunes' sales of some US$600 million since it started in September, 2003, don't even merit a statistical blip against what's happening in the real world of online music. There, the P2P applications and networks rule.

Guess what? Your digital music library is not actually a library. It's considered "hoarding."

The entertainment cartels have already pirated the word "pirate" to replace "counterfeit" and/or "duplicate" and/or "share." It's so much more PR-friendly -- more emotive and evocative.

And it works so well in a sound-bite or a headline.

Now the Organized Music family, Sony BMG, Vivendi Universal, Warner Music and EMI, plan to do the same with "collection" and/or "library" when applied to file sharing, and they've chosen the shadowy NPD Group to deliver the message via a "study."

Spinning the Facts

The statement "Study finds many U.S. homes hoarding downloaded music" looks so nicely underhanded, almost criminal, doesn't it? Much better than "Many U.S. homes have large digital music collections."

"Most American homes have at least one digital music file on their computer, more evidence that Internet music piracy is widespread, according to a study released this week," says the Gannett News Service, quoting an NPD report.

When I first came across the NPD Group in late 2003, adidas International, International Flavors & Fragrance and Wrigley typified its client base, but it was nonetheless churning out "studies" bolstering entertainment cartel party lines. The mainstream media immediately began quoting these studies as authoritative sources.

I e-mailed NPD wondering how many years' experience it had in the music research field and asked about the team of expert interviewers/statisticians I thought it must boast given the nature and number of its outpourings.

I never did hear back, and when I visited the NPD site, I wasn't able to find a single music, or other entertainment industry, client, although since then, the company has added movies, music, video, TV, etc., to the list it professes to be expert in.

Getting a Grip

More recently, NPD was touting iTunes as a "formidable competitor against free peer-to-peer (P2P) file-sharing services," an assertion which is, of course, ludicrous.

iTunes also "tied with LimeWire as the second-most-popular digital music service in March, 2005," claimed NPD. Not even in your dreams.

The corporate online music business so far exists only in the minds of the media and those trying to promote it, and iTunes' sales of some US$600 million since it started in September, 2003, don't even merit a statistical blip against what's happening in the real world of online music.

There, the P2P applications and networks rule, and iTunes is a joke.

Meanwhile, "More than two out of three U.S. households with Internet access had a least one digital music file on their computer while more than half had at least 50 songs," said NPD Group.

And you know what that means: Piracy! Hoarding!

Faux Hulks Can Keep Fighting Evil Online
Daniel Terdiman

Marvel Entertainment and NCSoft, publisher of such online games as "City of Heroes," have settled a lawsuit over whether characters created by players can legally resemble Marvel's comics characters.

Marvel--publisher of titles like "Spider-Man," "The X Men," "The Fantastic Four" and many others--filed the suit in November 2004. It alleged that "City of Heroes," an online game with hundreds of thousands of users, infringed on Marvel's copyright by giving players a content creation engine that allows them to design avatars that can look like the Incredible Hulk, Captain America or any other copyright-protected Marvel character.

To some legal experts, the most noteworthy result of the settlement is a victory for player creativity. Terms of the settlement, which was announced on Wednesday, were not disclosed.

In the aftermath of the suit, many law professors, game designers and others interested in promoting open-ended content creation expressed concern that a Marvel victory would put a halt to such creation--not just in games but in other arenas where users can create content that could be considered infringing.

They also asserted that Marvel's claims were specious, given that the company was effectively suing NCSoft for giving people the ability to enact the digital equivalent of making a Spider-Man costume and wearing it in their backyard.

Since filing its suit, Marvel has begun working with online game publisher Sigil to produce an online game based on it characters.

In any case, the terms of the settlement appear to do nothing to immediately halt "City of Heroes" players from creating any kind of characters they want.

"The parties' settlement allows them all to continue to develop and sell exciting and innovative products," NCSoft wrote in a press release about the settlement, "but does not reduce the players' ability to express their creativity in making and playing original and exciting characters."

The problem, according to several legal experts, is that the language of the announcement doesn't make clear the terms of the settlement. Thus, it is not known whether Marvel has retained its right to seek legal relief against publishers like NCSoft or players who create potentially infringing characters in games like "City of Heroes."

Suits may not be over
That's because the announcement included the following language: "Therefore, no changes to 'City of Heroes' or 'City of Villains' character creation engine are part of the settlement."

The suit, which was filed in U.S. district court in Los Angeles, has seen a series of rulings that have largely gone NCSoft's way. Neither NCSoft nor Marvel would comment on the settlement beyond Wednesday's announcement.

Fred von Lohmann, a staff attorney at the Electronic Frontier Foundation, which has been tracking the lawsuit, said that because Marvel and NCSoft settled, it is likely no one will ever know the terms and what rights online game publishers and players have going forward.

"This is one of the big problems with copyright and trademark law," von Lohmann said. "There is no easy way to get an answer to any of these questions if the rights holder is unwilling to fight it out in court."

But because the announcement contained language saying that the "City of Heroes" content creation engine wasn't involved in the settlement, von Lohmann fears companies like Marvel aren't done suing online game publishers.

"This probably won't stop Marvel and other rights holders from threatening the (online game) community," he said. "Their lawyers can send letters and they can put pressure on companies to stop what they're doing, and if they don't comply, they run the risk of legal action."

In a Wednesday e-mail to many of the experts in the online game community, Greg Lastowka, an assistant professor at Rutgers School of Law, noted that "the terms of the settlement apparently allow the NCSoft character creation engine to stand, which is a victory for the players."

But he also echoed von Lohmann's concerns.

"However, Marvel's claims of player infringement have not been formally rejected by the court, which means analogous claims might be pursued by Marvel, or a like-minded company, in the future."

Still, to some legal experts, the most noteworthy result of the settlement is a victory for player creativity.

"The public has long benefited from a certain degree of ambiguity in copyright," said Beth Noveck, an associate professor at New York Law School. "One the one hand, this creates uncertainty among creators. On the other hand, it is this ambiguity that opens up opportunities to try new things and test the boundaries."

Governments Tremble at Google's Bird's-Eye View
Katie Hafner and Saritha Rai

When Google introduced Google Earth, free software that marries satellite and aerial images with mapping capabilities, the company emphasized its usefulness as a teaching and navigation tool, while advertising the pure entertainment value of high-resolution flyover images of the Eiffel Tower, Big Ben and the pyramids.

But since its debut last summer, Google Earth has received attention of an unexpected sort. Officials of several nations have expressed alarm over its detailed display of government buildings, military installations and other important sites within their borders.

India, whose laws sharply restrict satellite and aerial photography, has been particularly outspoken. "It could severely compromise a country's security," V. S. Ramamurthy, secretary in India's federal Department of Science and Technology, said of Google Earth. And India's surveyor general, Maj. Gen. M. Gopal Rao, said, "They ought to have asked us."

Similar sentiments have surfaced in news reports from other countries. South Korean officials have said they fear that Google Earth lays bare details of military installations. Thai security officials said they intended to ask Google to block images of vulnerable government buildings. And Lt. Gen. Leonid Sazhin, an analyst for the Federal Security Service, the Russian security agency that succeeded the K.G.B., was quoted by Itar-Tass as saying: "Terrorists don't need to reconnoiter their target. Now an American company is working for them."

But there is little they can do, it seems, but protest.

Google Earth is the most conspicuous recent instance of increased openness in a digitally networked world, where information that was once carefully guarded is now widely available on personal computers. Many security experts agree that such increased transparency - and the discomfort that it produces - is an inevitable byproduct of the Internet's power and reach.

American experts in and outside government generally agree that the focus on Google Earth as a security threat appears misplaced, as the same images that Google acquires from a variety of sources are available directly from the imaging companies, as well as from other sources. Google Earth licenses most of the satellite images, for instance, from DigitalGlobe, an imaging company in Longmont, Colo.

"Google Earth is not acquiring new imagery," said John Pike, director of Globalsecurity.org, which has an online repository of satellite imagery. "They are simply repurposing imagery that somebody else had already acquired. So if there was any harm that was going to be done by the imagery, it would already be done."

Google Earth was developed as a $79-a-year product by a small company called Keyhole that Google bought last year; it was reintroduced as a free downloadable desktop program in June. It consists of software that can be downloaded onto a personal computer and used to "fly over" city streets, landmarks, buildings, mountains, redwood forests and Gulf Stream waters. Type in any street address in the United States, Canada or Britain, or the longitude and latitude for any place - or even terms like "pyramids" or "Taj Mahal" - and the location quickly zooms into focus from outer space.

It was in the 1990's that the federal government started allowing commercial satellite companies to make and sell high-resolution images, to allow American companies to compete in a growing market.

But a number of security restrictions apply to those companies. For instance, United States law requires that images of Israel shot by American-licensed commercial satellites be made available only at a relatively low resolution. Also, the companies' operating licenses allow the United States government to put any area off limits in the interests of national security. A 24-hour delay is mandated for images of especially high resolution.

Vipin Gupta, a security analyst at Sandia National Laboratories in Albuquerque, said the time delays were crucial, saying that in the national security sphere much can change between the time an image is taken and when it is used by the public.

"You can get imagery to determine whether there is a military base or airfield, but if you want to count aircraft, or determine whether there are troops there at a particular time, it is very difficult to do," Mr. Gupta said. "It's not video."

Andrew McLaughlin, a senior policy counsel at Google, said the company had entered discussions with several countries over the last few months, including Thailand, South Korea and, most recently, India.

India may be particularly sensitive to security issues because of its long-running border disputes with Pakistan, its rival nuclear power, and recurring episodes of terrorism. Since 1967, it has forbidden aerial photographs of bridges, ports, refineries and military establishments, and outside companies and agencies are required to have those images evaluated by the government. High-resolution satellite photos face similar restrictions in India, which has its own sophisticated satellite imaging program.

Mr. Ramamurthy, the Indian science official, acknowledged that "there is very little we can do to a company based overseas and offering its service over the Internet." But General Rao, the Indian surveyor general, said the Indian government had sent a letter asking Google "to show sensitive sites, which we will list - areas such as the presidential residence and defense installations - in very low-resolution images."

Mr. McLaughlin said he had not yet seen such a letter; he said talks with India had centered specifically on images of the Kashmir border, long disputed by India and Pakistan.

Meetings with Indian officials or those from other nations have yet to result in a request that Google remove or downgrade any information, Mr. McLaughlin said. Nor, he said, has the United States government ever asked Google to remove information.

The same cannot be said for Mr. Pike, whose Web site has images of nuclear test sites and military bases in much sharper focus than can be found on Google Earth.

Last year, Mr. Pike said, he was asked by the National Geospatial-Intelligence Agency, an arm of the Defense Department, to remove from his site some of the maps of cities in Iraq that the Coalition Provisional Authority had created for planning cellphone service.

Mr. Pike said he had complied, but added that the incident was a classic example of the futility of trying to control information. "To think that the same information couldn't be found elsewhere was not a very safe assumption," he said.

Dave Burpee, a spokesman for the agency, said that the incident was relatively isolated, and that Mr. Pike had been asked to remove the maps because they were marked "limited distribution." A service like Google Earth, on the other hand, contains nothing classified or restricted.

An outcry over security was the last thing John Hanke was thinking five years ago when he joined in founding Keyhole with the aim of using satellite and aerial photography to create a three-dimensional world map. The idea, said Mr. Hanke, an entrepreneur who founded two video game companies before starting Keyhole, was to make video games more interesting.

Now Mr. Hanke, as a general manager at Google in charge of Google Earth, finds himself in the thick of frequent discussions at Google and with outsiders about transparency. He speaks enthusiastically of the benefits of openness. "A lot of good things come out of making information available," he said, and proceeded to list a few: "disaster relief, land conservation and forest management for fighting wildfires."

The images, which Google Earth expects to update roughly every 18 months, are a patchwork of aerial and satellite photographs, and their relative sharpness varies. Blurriness is more often than not an indication of the best quality available for a location.

Chuck Herring, a spokesman for DigitalGlobe, said that to the best of his knowledge, the federal government had never asked his company to obscure or blur images. Similarly, Mr. Hanke said no specific areas on Google Earth lacked high-resolution data because of federal restrictions.

For a brief period, photos of the White House and adjacent buildings that the United States Geological Survey provided to Google Earth showed up with certain details obscured, because the government had decided that showing details like rooftop helicopter landing pads was a security risk. Google has since replaced those images with unaltered photographs of the area taken by Sanborn, a mapping and imagery company, further illustrating the difficulty of trying to control such information.

As for security issues raised by other countries, Mr. Hanke said, "When we reach out and engage with knowledgeable people, the concern tends to subside."

Still, imagery is growing harder than ever to control, especially as it makes its way around the Internet. Several countries, notably Nigeria, China and Brazil, have recently launched satellites, making it harder for any one government to impose restrictions.

"When you have multiple eyes in the sky, what you're doing is creating a transparent globe where anyone can get basic information about anyone else," said Mr. Gupta, the Sandia analyst. His recommendation to the Indian government, he said, would be to accept the new reality: "Times are changing, and the best thing to do is adapt to the advances in technology."

Andrew E. Kramer contributed reporting for this article.

Trials and Tribulations

Video games’ many visits to court
Nadia Oxford

Lawsuit is the first word spit out after a car accident, or after someone burns themselves with boiling coffee that didn't include a flashing warning label, or after someone's heart takes a small vacation following the twenty years of daily cheeseburgers. Americans love to sue: Disgruntled customers sue corporations, one kid sues another for calling him a mean names, and corporate lawyers hand one other court summons as casually as Christmas cards.

So it should be no surprise that the videogame industry is plagued by legal battles -- many of which have shaped companies and games as we know them. And it's hardly a new trend; the justice system has a long relationship with videogames, stretching back to the medium's infancy.

Activate Activision

The very first video game was created in a Long Island laboratory by a nuclear physicist named Willy Higenbotham. Born in 1958 on an analog computer called an oscilloscope, his creation, "Tennis for Two," was part of a visitor's exhibit set up in the lab to ease the fears of nearby residents made jittery by the Cold War and anything to do with atoms. Using two controller boxes, the visitors could play an electronic version of "tennis" that even simulated wind resistance and gravity. Higinbotham never grew overly attached to his creation, nor did he bother to patent his idea because it was "so obvious."

In 1966, Ralph Baer, a German-born American engineer who primarily worked on third-party military projects wanted to do something new with the television set: Electronic games. Baer worked with his associate, Bill Rusch, to develop concepts, including a two-player chase through a maze, and a tennis game that closely resembled Higenbotham's. Financial difficulties forced Baer to sell his ideas to Magnavox, and in 1972 the company displayed its $100 "Odyssey" and a handful of games -- including Tennis -- at trade shows. A young engineer named Nolan Bushnell, who would grow up to become the daddy of Atari, was very interested in one game in particular. Unlike Higenbotham, Baer had been granted a patent for his game console and its games. So when Atari's Pong (designed by Bushnell) single- handedly gave birth to the home and arcade videogame industries, it also gave birth to the first videogame lawsuit. Baer called shenanigans, producing proof that Bushnell had seen Magnavox's Odyssey at a trade show; with Magnavox's victory, the courts clearly decided that Bushnell had been inspired by Baer's concept -- a little too inspired. Atari managed to thrive through the 1970s despite this setback thanks to an array of quality original creations; Pong kicked things off, but the VCS home system (also known as the 2600) was the company's greatest creation.

Yet despite its runaway success, the company only paid employees standard salaries and offered little in the way of bonuses or appreciation. A handful of programmers assumed that they could continue to make good games by themselves, away from Atari's thumb. These defectors called their new company Activision and made a handsome sum with four hits -- Dragster, Fishing Derby, Checkers, and Boxing. Atari, overconfident that customers would buy whatever fell on the shelf with their label, noticed that gamers actually did prefer Activision's relatively detailed graphics and quality gameplay. Activison's work not only put Atari back in touch with consumer demand, it boosted sales of their consoles.

To show their appreciation, Atari took Activision to court, claiming that the company didn't have the right to develop Atari games. Atari lost, and more companies decided to follow in Activision's footsteps, creating the concept of third-party developers. It was a defining moment for video games.

War of the Wakka

This was hardly the end of Atari's appearances in court. In 1981, Philips released a game called K.C. Munchkin! for their system, the Odyssey II. Munchkin was heavily inspired by Namco's 1980 arcade hit, Pac-Man, but contained significant improvements to the gameplay. Instead of chomping a screen full of stationary dots, Munchkin chased down 12 dots that were constantly in motion. The remaining pellets got faster as the others were eaten, and getting the last dot required strategy and interception. The maze walls moved, and players could program their own courses.

Atari sued Philips and forced them to stop production of K.C. Munchkin! because Atari had exclusive rights to the home version of Pac-Man, which wasn't due out until 1982. They won on appeal; the court decided that Philips had copied Pac-Man, and that Munchkin's differences only "emphasized" this plagiarism, a ruling that ultimately established how copyright laws would apply to the look and "feel" of software. Munchkin was a vastly superior game to Atari's pitiful conversion of the Namco-designed hit, but the law was less concerned about quality and more about upholding the law. After Munchkin was pulled off the shelves, Philips developed K.C's Krazy Chase!, in which Munchkin devoured a tree-eating creature called the "Dratapiller," an insect that strongly resembled the insect star of Atari's hit, Centipede.

David and Goliath

Even after all of this, Atari's legal dealings weren't over. Long after they had largely given up on hardware and a new game console called the Nintendo Entertainment System took the 2600's place in gamers' hearts, the company that created the gaming industry still found its way to court. Though Atari had turned down a request a couple of years prior to help Nintendo distribute their fledgling system, the system's success made them realize that the videogame industry wasn't quite as dead as they'd left it, and they wanted back in. The aging 2600 and its successor, the 7800, didn't make much headway against the NES; Atari shrewdly decided to hedge its bets and support the NES, too, adopting the name Tengen.

Nintendo believed that Atari had lost its hold on the industry due to it lack of control over third parties. Literally anybody could make a game for the 2600, resulting in games that were only slightly altered, slapped with a new label and put on the shelf, as well as some "erotic" adventures that were not fun and certainly not sexy. As a result, Nintendo shepherded its third parties under strict (and, some developers argued, unfair) rules that required all NES games to be licensed. In addition, companies were not allowed to release more than five games a year for the system, and those games were required to remain exclusive to Nintendo. Some companies found ways around the restrictions, such as Konami's splitting of its resources to create a "new" company, Ultra Games. Tengen simply appealed for a less restrictive license, and Nintendo refused. Tengen complied at first and in 1988 they released their only three legitimate NES games: RBI Baseball, Pac-Man and Gauntlet. At the same time, they secretly worked on ways to bypass Nintendo's 10NES security chip, which locked out games that were not given the coveted Nintendo "Seal of Quality."

The chip could be disabled easily enough with a good zap of electricity, but Tengen feared that such a route might damage consoles, and they didn't want liability suits on top of the trouble they already knew they'd be in for. Instead, Tengen reverse-engineered the chip by contacting the Government and requesting a copy of Nintendo's lock-out program for a potential court case against the company. With the help of the program, the NES' lock-out program fell away easily and the unlicensed Tengen games were launched. Nintendo sued the company for breach of contract as soon as the games hit the store shelves, and claimed that Atari created Tengen as "a front company to defraud Nintendo." Tengen lost and was forced to pay damages.

"I dunno, Davey..."

The dogfight between the companies flared up again with the release of Tetris for the NES. Both Tengen and Nintendo had their own versions of the wildly popular puzzle game; many gamers still maintain that Tengen's version, which allowed for two player head-to-head competition, was the superior of the two. Despite some confusion, though, only Nintendo possessed the rights to publish Tetris for home consoles-- meaning that Tengen's version, unknown to them, was illegal. Nintendo yanked Tengen back into court, forcing them to remove its inventory of hundreds of thousands of Tetris cartridges from stores. Already reeling from expensive legal defeats, Tengen was nearly run out of business when Nintendo threatened to stop supplying any retailers who were found carrying the illegal games. Tengen released a few Genesis games before giving its last wheeze, but Atari wasn't out for the count and would soon jump on Nintendo's back again. Nintendo was already battle-hardened before it dealt with Tengen. Not long after Donkey Kong became a huge success in American arcades, MCA Universal sued Nintendo on the grounds that the barrel-chucking gorilla was a ripoff of their own hairy movie star, King Kong. It was a frightening scenario at first; Nintendo was still fragile at the time, and if they lost the suit, Nintendo of America would cease to be. The game manufacturer's lawyer, Howard Lincoln (now well-recognized as the Senior Vice President of the company) discovered that not only did Universal not own the rights to King Kong, they'd won a lawsuit years prior declaring that King Kong was actually public domain. It wasn't Universal's finest moment, and the Hollywood giant was swatted down like Kong himself, forced pay legal reparations to the up-and-coming Nintendo.

As the Nintendo Entertainment System grew in popularity and entered millions of American homes, some small video stores fed their registers some extra profit by buying their own copies of Nintendo games, and renting them out to customers who paid a fraction of the game's original price to play it for a few days. Nintendo received no profit from the practice beyond the initial cost of their game, and unlike video cassette rentals, a hot game could be put up for sale and for rent on the same day. Nintendo took steps to stop game rentals, but they didn't come out roaring until Blockbuster Video began to make game rentals a large-scale service. Nintendo lost the lawsuit, however; the only thing Blockbuster could be nailed for was including original, copyrighted instruction booklets with their rented games. Blockbuster simply switched over to photocopied booklets, or handed out a card that explained the game's basic premise and controls to the player. Despite threats to rental kiosks and retailers who sold multiple copies of certain games, video game rentals were free to prosper, and still do. As the 1980s drew to a close, Atari filed an anti-trust lawsuit against Nintendo, which controlled more than 80% of the home gaming industry. Sega of America joined in as well, claiming that its own 8-bit Master System had failed because Nintendo threatened to stop supplying stores who carried the rival system. Atari contended that Nintendo's strict "quality control" was actually meant to smother competitors. The Justice Department ultimately decided that Nintendo was indeed strong-arming their competition, and their penalty was to issue $25 million in coupons to anyone who had bought an NES between June 1, 1988 and December 31, 1990. Customers received a $5 discount towards their next game purchase -- which actually encouraged a flood of sales that the best of Nintendo's advertising campaigns couldn't hope to instigate.

"Your wish is my hax."

Nintendo had less success in 1992 against Galoob, the makers of the infamous Game Genie. The Game Genie was a code-based "game- enhancing" device which could grant the player infinite health, lives or time if they were having a rough time getting through a game on their own... and if a player just wanted to watch Mario blast off halfway to the moon with a tap of the jump button, the Genie was good for that, too. Nintendo sued Galoob for copyright infringement with the argument that the use of the Genie produced a derivative work, since it altered the game data passing between the cartridge and the console. The court held that this wasn't the case, and even if it was, the derivative could fall under fair use: "Having paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work."

Fight the Fighting Fighters

These early industry-defining lawsuits are arguably some of the most interesting, and affect the way we play games today. But even though the bedrock has stopped shifting and the lava has congealed, modern video game suits aren't in short supply.

Nor are they exclusive to the companies that manufacture hardware. Software developers often sue each other in court cases that twist and turn. Japanese developer Data East created a 1993 Super Nintendo game called Fighter's History that bore more than a passing resemblance to Capcom's popular Street Fighter II. Many of the characters' moves mirrored those of Street Fighter's World Warriors, and the background art was certainly inspired. Even the roster of characters in Fighter's History was familiar: There was the chunky Commie wrestler, the smart-ass American, the stoic martial artist who lived for the fight, and the Masked mystery man. Although Capcom lost, the lawsuit was still ironic; it was Data East's 1984 arcade game, The Way of Karate, that first used the side-view fighting perspective that was the very basis for Street Fighter II. Even stranger, Data East had previously sued an American software company, Epyx, for its Commodore 64 game, World Karate Championship. Data East had argued that World Karate Championship looked and played very similar to their own Way of Karate. Data East initially won the lawsuit and had Epyx's game pulled, but Epyx appealed and the US Federal Court reversed the judgment, upholding the right of game developers to create and distribute products that express the same ideas, even if the products are similar.


When computers and the Internet became household tools, video game designers had the perfect means to hawk their wares. Not only did websites and rapid DSL connections allow for online shopping, but an incredible amount of hype for a game could be built up with the hosting of game trailers. But game companies curse the Internet for at least one reason: The spreading popularity of emulators, which can be easily downloaded to allow gamers to play their favorite games on their computers without actually purchasing the games or systems. Some defend emulation, pointing out that it's a great way for a new generation of players to get in touch with their "roots" -- after all, it's not easy to find an Atari 2600 or to acquire every game in the massive NES library. Game companies are less enthusiastic about co-existing with this controversial technology, especially since emulators don't stop with ColecoVision. Almost every console ever sold has been emulated, including new systems like the Nintendo DS. U.S.-based emulation software maker Connectix Corp. developed the Virtual Game Station in 1999, allowing Macintosh owners to play PlayStation games on their computer. Citing misappropriated trade secrets and unfair competition, Sony retaliated with legal action, but without success. While distributed ROMs and ISOs (binary copies of the games themselves) are considered illegal, U.S. copyright law protects emulators provided they mimic the function of hardware through reverse engineering. Finally concluding the legal battle in 2001, Connectix and Sony formed a "joint-technology agreement" in hopes of improved development tools and advancements in emulation. The move to work closer with emulator developers is not a bad one, as these programmers undeniably possess useful talent. The net result for gamers, though, was that Virtual Game Station was no longer sold or updated.

Burnt Toast

The epic cases of years past are interesting to read about, but what really marks today's game lawsuits is their personal touch. Increased awareness of regular people suing corporations for absurd reasons has caused more people to try their hand at winning a big cash settlement. If smokers can sue tobacco companies (and win) because they didn't know cigarettes can cause cancer, or if obese individuals can sue McDonalds (and win) because they didn't know that Big Macs contain enormous fat content, why should a parent be shy about blaming video games and the media for something as heavy as the death of their child? In 2001, a Louisiana woman named Esther Walker sued Nintendo of America under the claim that the N64 killed her 30-year-old son, Benjamin. Benjamin bought his N64 in 1999, purchased 11 games and played them for 8 hours a day, six days a week. He suffered a seizure while playing, but didn't lessen his habit. He experienced a sixth seizure in 2001 that caused him to hit his head on a table and suffer major internal injuries. He died shortly afterwards in hospital.

Esther Walker claimed that Nintendo released a defective product, and failed to give adequate warning about the health risks associated with playing video games. Nintendo, as well as other game companies, has been more cautious about alerting gamers and their parents that video games can indeed cause seizures in a small percentage of players, and if you do experience any sort of dizziness or disorientation, continuing play is not a hot idea. Turning on any Nintendo game will initiate a brief warning about the potential health risks associated with games, and software manuals instruct the player to take a rest after every hour or so of gameplay.

The shot heard round the 'Net

Sometimes, such personal lawsuits are understandable, even inevitable. Last year, the wife of an EA employee (choosing to remain somewhat anonymous with the moniker "EA Spouse") made an angry blog post about the treatment her husband was receiving at the hands of the massive software company, including endless months of seemingly needless "crunch time" that kept employees chained to their desks for over 90 hours a week. In addition, the blog stated that the overworked programmers received nothing in the way of overtime or sick leave. The post prompted a great deal of reaction from the industry and gamers. Critics condemned the sweatshop-like conditions and the mergers and buyouts that have been swallowing smaller game companies and smothering the human element of game development. EA has denied breaking labor laws, but some employees have filed a class-action lawsuit against the company in an attempt to get their overtime pay. Other employees have launched blogs similar to EA Spouse's, verifying the illegal working conditions.

Bowling for Columbine

Liability relating to game violence has formed the basis for many game- related lawsuits today. 1999 marked the Columbine tragedy, in which Eric Harris and Dylan Klebold shot 12 students and wounded 23 others in Colorado's Columbine High School before they killed themselves. Harris and Klebold were frequently taunted and isolated by their schoolmates, but whereas the incident should have sparked a serious look into the problems of bullying in high schools, easy access to guns in households, and the availability of materials that allowed the teens to build pipe bombs in their spare time, the blame shifted almost exclusively to the media, particularly video games. No newspaper missed the chance to report that the assassins' favorite games included id Software's violent first-person shooter, Doom. It was id Software and 25 other game companies -- including Sega and family-friendly Nintendo -- that the parents of the Columbine victims eventually chose to take to court. The group claimed that investigations into the case revealed that their children's killers had been inspired by violent games; if they had never played those games, the shooting wouldn't have happened. Not much came of the suit. Similar claims had been filed at earlier dates, including a 1997 incident that involved the shooting deaths of three students by a teenager named Michael Carneal. The judge dismissed the case, noting that video games were not subject to product liability laws.

Jack's Back

Many politicians, parents and lawyers still beg to differ, particularly the media's most infamous "Crusader" against video game violence, Florida lawyer and failed politician, Jack Thompson.

Although the mention of Thompson is recently all it takes to make gamers roll their eyes and bash their foreheads against the wall, the lawyer never been shy with his zealous linking of media violence and the breakdown of morals in modern teenagers. In 1999, he filed a $33 million class action lawsuit against Time Warner Inc., Polygram Film Entertainment Distribution Inc., Palm Pictures, Island Pictures, New Line Cinema, Nintendo, Sony, Atari and Sega on behalf of the parents of Michael Carneal, who was sentenced to life in prison for his act. Jack Thompson's blame suit failed, but he continued relentlessly in future court cases. Besides blaming first- person shooter games for what happened at Columbine, he also called for Microsoft to pay damages on the grounds that the Washington Sniper broke down his inhibitions towards killing with the aid of Halo.

Thompson's obsessive linking of Rockstar Games' popular titles (particularily Manhunt and Grand Theft Auto) to particular instances and motivations for murder is almost legendary. On TV and in court, he points out that "studies indicate video games damage children's' brains (whereas in actuality, the study, founded by a parenting group campaigning against media violence, couldn't find a concrete link between exposure to violent games and brain activity)." Ignoring the events in 50% of the Old Testament, Thompson told interviewers that "The Bible doesn't promote the killing of innocent people ... Grand Theft Auto does." He also attempted to link Rockstar's Manhunt and the killing of British teen Stefan Pakeerah by his 17-year-old friend, Warren LeBlanc. The courts denied that the game was a factor, seeing as the game was owned by the victim, not the killer. Thompson later told IGN that the British Tabloids fabricated his involvement with the case.


For all his adventures, the event that truly elevated Thompson to gamers' awareness was Rockstar's infamous "Hot Coffee" fiasco. In July of 2005, a modder discovered an erotic mini-game hidden in Grand Theft Auto: San Andreas that could be accessed through a third-party hack. The cry of outrage from Thompson and other activists was loud and clear. The Entertainment Software Ratings Board (ESRB) was forced to re-evaluate the game and give it an Adults-Only rating due to the hidden content. In August, Thompson reported that Grand Theft Auto: Vice City also contained an unlockable sexual minigame that took place in a strip club. Third-party hackers tried their very best, but found no such thing. With the media outburst on Hot Coffee, Florence Cohen, an 85-year-old New York grandmother, filed a class-action lawsuit against Rockstar Games. She cites that Rockstar and Take Two Interactive, GTA: San Andreas' publisher, are guilty of abuse, false advertising and deception based on the changing of the game's original rating.

It was a brief summer of glory for Thompson, who launched another 2005 lawsuit in Alabama against Rockstar when 18-year-old Devan Moore, a fan of GTA, killed three people and declared that "Life is like a video game. Everybody's gotta die sometime." Thompson and the families of two of the victims aimed to prove that Moore never would have pulled the trigger if he'd not played GTA, despite his extremely troubled childhood that saw him bounced from one foster home to another. But as the year cooled down, so did Thompson's credibility in court. Long regarded by gamers as being unstable (cemented by Thompson's attempt to get Gabe and Tycho of Penny Arcade arrested for speaking out against him), the courts became wary of Thompson's seemingly random outbursts and far-out court comparisons of Japan's export of video games and the World War II attack on Pearl Harbor. On November 7, 2005, Thompson withdrew from the Moore case, stating that it would do fine without him. James Judge Moore, however, had revoked his license to practice law in Alabama because of inappropriate behavior. Thompson hotly stated that nothing as minor as the removal of his license was going to stop him from representing the right side of the law in court. Nevertheless, Thompson has lost the support of some of his previous backers, most notably the National Institute on Media and the Family. Despite his tumbling reputation, it's easy to believe that he'll continue his crusade against gamers and games, even if it means ending up alone on the high road, mad and gibbering like Psyche in her search for Cupid.

You don't know me, but you hate me.

Thompson frequently launched suits on grounds of slander and defamation, which is becoming an increasingly popular practice in the world of law, and as alarming as it can be to receive a legal letter dripping with heavy jargon, it can also be amusing under the right circumstances. The site administrator for Megaman Network, was more than a little surprised when he received a letter from the world famous physician/ biologist, Doctor Weil. Although the letter didn't threaten immediate legal action, it did make accusations of defamation, noting that the website labeled him as an "evil scientist." In response, Weil was sent the email address for Capcom USA. After all, website admins didn't have much say when the company decided that the villain in their Mega Man Zero series would be named "Doctor Weil."

With the growth of personal lawsuits, gamers are understandably enveloped with a feeling of nostalgia when a company goes to court simply to defend its profits, whether justified or not. Sony Computer Entertainment Europe Limited (SCEE) filed a suit against Hong Kong- based importer, Lik-Sang.com, for selling and shipping the PSP to addresses in the UK and Europe before the official European launch date. Lik-Sang argued that the laws in Hong Kong clearly allows parallel trade to restore natural competition and offer customers lower prices. And unlike Sony's previous attacks on PlayStation mod chippers, Lik- Sang couldn't be faulted for shipping unmodified, boxed product to wherever there was a demand. According to Pascal Clarysse, Marketing Manager for Lik-Sang.com, "This is the most aggressive move against its own customers that a console manufacturer has ever taken in the 30 year history of videogames. Sony wants to completely cut hardcore gamers away from items released in Japan or anywhere else outside their own country. A very active part of the gaming community has been enjoying Japanese gaming culture for over two decades, and that's what the Empire is now willing to destroy."

As long as there is money to make, personal morals to uphold (however noble or whacked) and profits to defend, courts will never lack for activity. Gamers and non-gamers alike have reason to shake their heads as the strong foundation of Democracy is smothered by frivilous and petty lawsuits launched by weasels looking to get rich quick. But it's undeniably important--as well as interesting--to review those historic copyright lawsuits that formed the prosperous industry of today.


Generation Xbox
Hugo Lindgren

Here's a theory that may be neither original nor empirically defensible but feels true: The more fun an activity is, the less interesting it is to read about. War producces great journalism; water-skiing does not. Can you guess where video games fall on this spectrum? In the last few years, a great many words have been expended to report on this flourishing cultural phenomenon. Most accounts begin with a hyperactive presentation of statistics, which we will not rehearse here. This is all you need to know (and perhaps already do): Video games have grown into a huge business, outpacing the movie industry and bulldozing childhood as we knew it. We adults are not safe, either. Whether they admit it or not, you probably have friends who can be found awake at 2 a.m. disemboweling orcs, foiling terrorist plots and scooping up fumbles and running them into end zones.

It is the opinion of Edward Castronova, author of "Synthetic Worlds," that such electronic experiences are not merely a hedge against boredom but a profound indicator of where the entire world is heading. Online, off-line; reality, fantasy - these distinctions will cease to matter as more and more of us pass our time in virtual environments. Economies will evolve as we pay real money for virtual goods and vice versa. Conflicts that begin online will spill into the real world and back. Laws will be written to protect our newfound interests.

Castronova's vision has elements of both utopia and dystopia. But mostly he is bullish. Life in these alternative zones may eventually become so fulfilling, he contends, "that a fairly substantial exodus may loom in the distance." He means this, really. Like the Irish and Italians who left their native lands in the late 19th century to come to America, gamers could create a genuine human migration, away from the real and into the virtual. What will be real then?

The specific object of Castronova's scholarship is Mmorpgs, the inelegant acronym for "massively multiplayer online role-playing games," which can involve hundreds of thousands of players plugging in from all over the world. A disproportionate number of these games revolve around dwarfs, wizards, quests and magic lands, though the content is becoming ever more diverse. These days, there's a Mmorpg out there to suit the interests of just about anybody. One game, The Sims Online, merely simulates suburban life, and it is madly popular.

Castronova is an economist who teaches telecommunications at Indiana University, and among academic economists he is a bold contrarian, if only because he dares to take computer games seriously. My oh my does he take them seriously. In dense, lifeless prose, he sledgehammers away at his major themes, constantly pausing to review the material he's just covered and preview what is to come. His sweeping conclusions are intriguing - get ready for governments sending agents into virtual worlds and waging war with avatars! - but he's not a vivid enough writer to animate most of his futuristic abstractions.

In "Smartbomb," Heather Chaplin and Aaron Ruby try harder to entertain. They've organized their history of video games as a study of ambitious individuals, breaking it down into a series of breezy, magazinelike profiles of uneven quality. A lot of the original reporting seems to take place at gaming conventions, which is not where one imagines the really interesting stuff happens. But the stories are pretty good, even when they don't break new ground. Rereading the legend of Nolan Bushnell and the founding of Atari is like hearing a bar band play a spirited "Twist and Shout" - enjoyable, but no additional points for Degree of Difficulty.

In two spots, though, Chaplin and Ruby really score. In their chapter on Mmorpgs, they sensitively profile David Reber, a 30-year-old Californian who spends every free moment chained to his computer, acting out a series of intense fantasy existences that provide him with the companionship and sense of achievement missing in his real life. Just as Castronova would predict, Reber withdraws from the real world as his fantasy life deepens - he has lapses at work and when Chaplin and Ruby last check in with him, he's moved back in with his mother.

The other winning portrait in "Smartbomb" is of Will Wright, the creator of SimCity, as well as its offshoot The Sims, and a new simulation called Spore in which players guide a new creature from its biological origin onward. In an industry that mimics Hollywood's craven predilection for cheap, gory theatrics, Wright stands apart as a humble philosopher in love with the potential of games to expand the human experience. Though Chaplin and Ruby don't have much to say themselves about the significance of video games, they wisely hand matters over to Wright, who foresees a future that might just keep us all staying up past 2 a.m. "I think one thing that's unique about video games is not only that they can respond to you but down the road they'll be able to adapt themselves to you. They'll learn your desires," he says. "It might just be that games become deeply personal artifacts - more like dreams."

Senators Introduce Law Curbing Game Sales To Young

Sen. Hillary Clinton and U.S. Senate colleagues on Friday introduced legislation prohibiting the sale of violent or sexually explicit video games to minors, saying the industry's self-rating system was not being adequately enforced.

The proposed measure was the latest development in an increasingly strident battle over the content of video games, which represent a $10 billion industry in the United States, rivaling the box office revenue of Hollywood movies.

Some states have already passed laws regulating the sales, although the video game industry has won some early court battles against them.

At a news conference on Capitol Hill, New York Democrat Clinton said legal restraints should be imposed to keep inappropriate video games from children, in the same way laws protect children from tobacco, alcohol and pornography.

In some video games, characters routinely spray each other with machine gun fire, drive over pedestrians and kill police officers, Clinton said, saying it is all too easy for minors to buy such games.

"These video games are stealing the innocence of our children," said Clinton. "Our bill puts teeth into the standards set by the industry."

Clinton introduced the bill along with Democratic senators Joseph Lieberman of Connecticut and Evan Bayh of Indiana. They did not discuss prospects for advancing the legislation, but said they expected to attract some Republican co- sponsors.

The bill would prohibit any business from selling or renting a video game rated "Mature," "Adults-Only," or "Ratings Pending" to anyone younger than 17.

Violation would be a federal misdemeanor. On-site managers of stores that made the prohibited sales would be subject to a fine of $1,000 or 100 hours of community service for the first offense; and $5,000 or 500 hours of community service for each subsequent offense.

Video game ratings are set by the Entertainment Software Ratings Board, an independent nonprofit group established in 1994 by the Entertainment Software Association.

The president of that association, Douglas Lowenstein, said the proposed measure was unconstitutional and infringed on the industry's creative rights. "We place our trust in parents, not Congress, to decide what's right for their families," he said in a statement.

But Lieberman said he was confident the law was constitutional, because it did not impinge on freedom of expression, only restricted sales to minors. There has been no ruling on the matter from the U.S. Supreme Court, he noted.

"Courts in America have not been hesitant to uphold laws that limit children's access to pornography. It's very ironic that courts have now struck down attempts to limit children's access to violent materials," Lieberman said.
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Britain Will Be First Country To Monitor Every Car Journey

From 2006 Britain will be the first country where every journey by every car will be monitored
Steve Connor

Britain is to become the first country in the world where the movements of all vehicles on the roads are recorded. A new national surveillance system will hold the records for at least two years.

Using a network of cameras that can automatically read every passing number plate, the plan is to build a huge database of vehicle movements so that the police and security services can analyse any journey a driver has made over several years.

The network will incorporate thousands of existing CCTV cameras which are being converted to read number plates automatically night and day to provide 24/7 coverage of all motorways and main roads, as well as towns, cities, ports and petrol- station forecourts.

By next March a central database installed alongside the Police National Computer in Hendon, north London, will store the details of 35 million number-plate "reads" per day. These will include time, date and precise location, with camera sites monitored by global positioning satellites.

Already there are plans to extend the database by increasing the storage period to five years and by linking thousands of additional cameras so that details of up to 100 million number plates can be fed each day into the central databank.

Senior police officers have described the surveillance network as possibly the biggest advance in the technology of crime detection and prevention since the introduction of DNA fingerprinting.

But others concerned about civil liberties will be worried that the movements of millions of law-abiding people will soon be routinely recorded and kept on a central computer database for years.

The new national data centre of vehicle movements will form the basis of a sophisticated surveillance tool that lies at the heart of an operation designed to drive criminals off the road.

In the process, the data centre will provide unrivalled opportunities to gather intelligence data on the movements and associations of organised gangs and terrorist suspects whenever they use cars, vans or motorcycles.

The scheme is being orchestrated by the Association of Chief Police Officers (Acpo) and has the full backing of ministers who have sanctioned the spending of £24m this year on equipment.

More than 50 local authorities have signed agreements to allow the police to convert thousands of existing traffic cameras so they can read number plates automatically. The data will then be transmitted to Hendon via a secure police communications network.

Chief constables are also on the verge of brokering agreements with the Highways Agency, supermarkets and petrol station owners to incorporate their own CCTV cameras into the network. In addition to cross- checking each number plate against stolen and suspect vehicles held on the Police National Computer, the national data centre will also check whether each vehicle is lawfully licensed, insured and has a valid MoT test certificate.

"Every time you make a car journey already, you'll be on CCTV somewhere. The difference is that, in future, the car's index plates will be read as well," said Frank Whiteley, Chief Constable of Hertfordshire and chairman of the Acpo steering committee on automatic number plate recognition (ANPR).

"What the data centre should be able to tell you is where a vehicle was in the past and where it is now, whether it was or wasn't at a particular location, and the routes taken to and from those crime scenes. Particularly important are associated vehicles," Mr Whiteley said.

The term "associated vehicles" means analysing convoys of cars, vans or trucks to see who is driving alongside a vehicle that is already known to be of interest to the police. Criminals, for instance, will drive somewhere in a lawful vehicle, steal a car and then drive back in convoy to commit further crimes "You're not necessarily interested in the stolen vehicle. You're interested in what's moving with the stolen vehicle," Mr Whiteley explained.

According to a strategy document drawn up by Acpo, the national data centre in Hendon will be at the heart of a surveillance operation that should deny criminals the use of the roads.

"The intention is to create a comprehensive ANPR camera and reader infrastructure across the country to stop displacement of crime from area to area and to allow a comprehensive picture of vehicle movements to be captured," the Acpo strategy says.

"This development forms the basis of a 24/7 vehicle movement database that will revolutionise arrest, intelligence and crime investigation opportunities on a national basis," it says.

Mr Whiteley said MI5 will also use the database. "Clearly there are values for this in counter-terrorism," he said.

"The security services will use it for purposes that I frankly don't have access to. It's part of public protection. If the security services did not have access to this, we'd be negligent."

Bush Acknowledges Approving Eavesdropping

President Bush said Saturday he has no intention of stopping his personal authorizations of a post-Sept. 11 secret eavesdropping program in the U.S., lashing out at those involved in revealing it while defending it as crucial to preventing future attacks.

''This is a highly classified program that is crucial to our national security,'' he said in a radio address delivered live from the White House's Roosevelt Room.

''This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States,'' Bush said.

Angry members of Congress have demanded an explanation of the program, first revealed in Friday's New York Times and whether the monitoring by the National Security Agency without obtaining warrants from a court violates civil liberties. One Democrat said in response to Bush's remarks on the radio that Bush was acting more like a king than the elected president of a democracy.

Bush said the program was narrowly designed and used ''consistent with U.S. law and the Constitution.'' He said it is used only to intercept the international communications of people inside the United States who have been determined to have ''a clear link'' to al-Qaida or related terrorist organizations.

The program is reviewed every 45 days, using fresh threat assessments, legal reviews by the Justice Department, White House counsel and others, and information from previous activities under the program, the president said.

Without identifying specific lawmakers, Bush said congressional leaders have been briefed more than a dozen times on the program's activities.

The president also said the intelligence officials involved in the monitoring receive extensive training to make sure civil liberties are not violated.

Appearing angry at points during his eight-minute address, Bush said he had reauthorized the program more than 30 times since the terrorist attacks of Sept. 11, 2001, and plans to continue doing so.

''I intend to do so for as long as our nation faces a continuing threat from al-Qaida and related groups,'' he said.

The president contended the program has helped ''detect and prevent possible terrorist attacks in the U.S. and abroad,'' but did not provide specific examples.

He said it is designed in part to fix problems raised by the Sept. 11 commission, which found that two of the suicide hijackers were communicating from San Diego with al- Qaida operatives overseas.

''The activities I have authorized make it more likely that killers like these 9-11 hijackers will be identified and located in time,'' he said.

In an effort by the administration that appeared coordinated to stem criticism, Bush's remarks echoed -- in many cases word-for-word -- those issued Friday night by a senior intelligence official who spoke on condition of anonymity. The president's highly unusual discussion of classified activities showed the sensitive nature of the program, whose existence was revealed as Congress was trying to renew the terrorism-fighting Patriot Act and complicated that effort, a top priority of Bush's.

Senate Democrats joined with a handful of Republicans on Friday to stall the bill. Those opposing the renewal of key provisions of the act that are expiring say they threaten constitutional liberties.

Reacting to Bush's defense of the NSA program, Sen. Russell Feingold, D-Wis., said the president's remarks were ''breathtaking in how extreme they were.''

Feingold said it was ''absurd'' that Bush said he relied on his inherent power as president to authorize the wiretaps.

''If that's true, he doesn't need the Patriot Act because he can just make it up as he goes along. I tell you, he's President George Bush, not King George Bush. This is not the system of government we have and that we fought for,'' Feingold told The Associated Press in a telephone interview.

The president had harsh words for those who talked about the program to the media, saying their actions were illegal and improper.

''As a result, our enemies have learned information they should not have,'' he said. ''The unauthorized disclosure of this effort damages our national security and puts our citizens at risk.''
http://www.nytimes.com/aponline/poli...n er=homepage

Is The Pentagon Spying On Americans?

Secret database obtained by NBC News tracks ‘suspicious’ domestic groups
Lisa Myers, Douglas Pasternak, Rich Gardella and the NBC Investigative Unit

A year ago, at a Quaker Meeting House in Lake Worth, Fla., a small group of activists met to plan a protest of military recruiting at local high schools. What they didn't know was that their meeting had come to the attention of the U.S. military.

A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a “threat” and one of more than 1,500 “suspicious incidents” across the country over a recent 10-month period.

“This peaceful, educationally oriented group being a threat is incredible,” says Evy Grachow, a member of the Florida group called The Truth Project.

“This is incredible,” adds group member Rich Hersh. “It's an example of paranoia by our government,” he says. “We're not doing anything illegal.”

The Defense Department document is the first inside look at how the U.S. military has stepped up intelligence collection inside this country since 9/ 11, which now includes the monitoring of peaceful anti-war and counter-military recruitment groups.

“I think Americans should be concerned that the military, in fact, has reached too far,” says NBC News military analyst Bill Arkin.

The Department of Defense declined repeated requests by NBC News for an interview. A spokesman said that all domestic intelligence information is “properly collected” and involves “protection of Defense Department installations, interests and personnel.” The military has always had a legitimate “force protection” mission inside the U.S. to protect its personnel and facilities from potential violence. But the Pentagon now collects domestic intelligence that goes beyond legitimate concerns about terrorism or protecting U.S. military installations, say critics.

Four dozen anti-war meetings
The DOD database obtained by NBC News includes nearly four dozen anti-war meetings or protests, including some that have taken place far from any military installation, post or recruitment center. One “incident” included in the database is a large anti-war protest at Hollywood and Vine in Los Angeles last March that included effigies of President Bush and anti-war protest banners. Another incident mentions a planned protest against military recruiters last December in Boston and a planned protest last April at McDonald’s National Salute to America’s Heroes — a military air and sea show in Fort Lauderdale, Fla.

The Fort Lauderdale protest was deemed not to be a credible threat and a column in the database concludes: “US group exercising constitutional rights.” Two-hundred and forty-three other incidents in the database were discounted because they had no connection to the Department of Defense — yet they all remained in the database.

The DOD has strict guidelines (.PDF link), adopted in December 1982, that limit the extent to which they can collect and retain information on U.S. citizens.

Still, the DOD database includes at least 20 references to U.S. citizens or U.S. persons. Other documents obtained by NBC News show that the Defense Department is clearly increasing its domestic monitoring activities. One DOD briefing document stamped “secret” concludes: “[W]e have noted increased communication and encouragement between protest groups using the [i]nternet,” but no “significant connection” between incidents, such as “reoccurring instigators at protests” or “vehicle descriptions.”

The increased monitoring disturbs some military observers.

“It means that they’re actually collecting information about who’s at those protests, the descriptions of vehicles at those protests,” says Arkin. “On the domestic level, this is unprecedented,” he says. “I think it's the beginning of enormous problems and enormous mischief for the military.”

Some former senior DOD intelligence officials share his concern. George Lotz, a 30-year career DOD official and former U.S. Air Force colonel, held the post of Assistant to the Secretary of Defense for Intelligence Oversight from 1998 until his retirement last May. Lotz, who recently began a consulting business to help train and educate intelligence agencies and improve oversight of their collection process, believes some of the information the DOD has been collecting is not justified.

Make sure they are not just going crazy
“Somebody needs to be monitoring to make sure they are just not going crazy and reporting things on U.S. citizens without any kind of reasoning or rationale,” says Lotz. “I demonstrated with Martin Luther King in 1963 in Washington,” he says, “and I certainly didn’t want anybody putting my name on any kind of list. I wasn’t any threat to the government,” he adds.

The military’s penchant for collecting domestic intelligence is disturbing — but familiar — to Christopher Pyle, a former Army intelligence officer.

“Some people never learn,” he says. During the Vietnam War, Pyle blew the whistle on the Defense Department for monitoring and infiltrating anti- war and civil rights protests when he published an article in the Washington Monthly in January 1970.

The public was outraged and a lengthy congressional investigation followed that revealed that the military had conducted investigations on at least 100,000 American citizens. Pyle got more than 100 military agents to testify that they had been ordered to spy on U.S. citizens — many of them anti-war protestors and civil rights advocates. In the wake of the investigations, Pyle helped Congress write a law placing new limits on military spying inside the U.S.

But Pyle, now a professor at Mt. Holyoke College in Massachusetts, says some of the information in the database suggests the military may be dangerously close to repeating its past mistakes.

“The documents tell me that military intelligence is back conducting investigations and maintaining records on civilian political activity. The military made promises that it would not do this again,” he says.

Too much data?
Some Pentagon observers worry that in the effort to thwart the next 9/11, the U.S. military is now collecting too much data, both undermining its own analysis efforts by forcing analysts to wade through a mountain of rubble in order to obtain potentially key nuggets of intelligence and entangling U.S. citizens in the U.S. military’s expanding and quiet collection of domestic threat data.

Two years ago, the Defense Department directed a little known agency, Counterintelligence Field Activity, or CIFA, to establish and “maintain a domestic law enforcement database that includes information related to potential terrorist threats directed against the Department of Defense.” Then-Deputy Secretary of Defense Paul Wolfowitz also established a new reporting mechanism known as a TALON or Threat and Local Observation Notice report. TALONs now provide “non-validated domestic threat information” from military units throughout the United States that are collected and retained in a CIFA database. The reports include details on potential surveillance of military bases, stolen vehicles, bomb threats and planned anti-war protests. In the program’s first year, the agency received more than 5,000 TALON reports. The database obtained by NBC News is generated by Counterintelligence Field Activity.

CIFA is becoming the superpower of data mining within the U.S. national security community. Its “operational and analytical records” include “reports of investigation, collection reports, statements of individuals, affidavits, correspondence, and other documentation pertaining to investigative or analytical efforts” by the DOD and other U.S. government agencies to identify terrorist and other threats. Since March 2004, CIFA has awarded at least $33 million in contracts to corporate giants Lockheed Martin, Unisys Corporation, Computer Sciences Corporation and Northrop Grumman to develop databases that comb through classified and unclassified government data, commercial information and Internet chatter to help sniff out terrorists, saboteurs and spies.

One of the CIFA-funded database projects being developed by Northrop Grumman and dubbed “Person Search,” is designed “to provide comprehensive information about people of interest.” It will include the ability to search government as well as commercial databases. Another project, “The Insider Threat Initiative,” intends to “develop systems able to detect, mitigate and investigate insider threats,” as well as the ability to “identify and document normal and abnormal activities and ‘behaviors,’” according to the Computer Sciences Corp. contract. A separate CIFA contract with a small Virginia-based defense contractor seeks to develop methods “to track and monitor activities of suspect individuals.”

“The military has the right to protect its installations, and to protect its recruiting services,” says Pyle. “It does not have the right to maintain extensive files on lawful protests of their recruiting activities, or of their base activities,” he argues.

Lotz agrees.

“The harm in my view is that these people ought to be allowed to demonstrate, to hold a banner, to peacefully assemble whether they agree or disagree with the government’s policies,” the former DOD intelligence official says.

'Slippery slope'
Bert Tussing, director of Homeland Defense and Security Issues at the U.S. Army War College and a former Marine, says “there is very little that could justify the collection of domestic intelligence by the Unites States military. If we start going down this slippery slope it would be too easy to go back to a place we never want to see again,” he says.

Some of the targets of the U.S. military’s recent collection efforts say they have already gone too far.

“It's absolute paranoia — at the highest levels of our government,” says Hersh of The Truth Project.

“I mean, we're based here at the Quaker Meeting House,” says Truth Project member Marie Zwicker, “and several of us are Quakers.”

The Defense Department refused to comment on how it obtained information on the Lake Worth meeting or why it considers a dozen or so anti-war activists a “threat.”

Administration Cites War Vote in Spying Case
Eric Lichtblau and David E. Sanger

President Bush and two of his most senior aides argued Monday that the highly classified program to spy on suspected members of terrorist groups in the United States grew out of the president's constitutional authority and a 2001 Congressional resolution that authorized him to use all necessary force against those responsible for the Sept. 11 attacks.

Offering their most forceful and detailed defense of the program in a series of briefings, television interviews and a hastily called presidential news conference, administration officials argued that the existing Foreign Intelligence Surveillance Act was not written for an age of modern terrorism. In these times, Mr. Bush said, a "two-minute phone conversation between somebody linked to Al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives."

Mr. Bush strongly hinted that the government was beginning a leak investigation into how the existence of the program was disclosed. It was first revealed in an article published on The New York Times Web site on Thursday night, though some information that administration officials argued could be useful to terrorists had been omitted.

"We're at war, and we must protect America's secrets," Mr. Bush said. "And so the Justice Department, I presume, will proceed forward with a full investigation."

He also lashed out again, as he did Saturday, at Democrats and Republicans in the Senate who have blocked the reauthorization of the broad antiterrorism law known as the USA Patriot Act, saying they voted for it after the Sept. 11 attacks "but now think it's no longer necessary."

Several of the senators responded that Mr. Bush would not accept amendments to the act that they say are necessary to protect civil liberties and that he would not accept a short-term renewal of the existing law while negotiations continue.

In the first of a series of appearances Monday to defend the intelligence operations, Attorney General Alberto R. Gonzales told reporters that "this electronic surveillance is within the law, has been authorized" by Congress. "That is our position," he added.

Officials with knowledge of the program have said the Justice Department did two sets of classified legal reviews of the program and its legal rationale. Mr. Gonzales declined to release those opinions Monday.

Two of the key Democrats who had been briefed on the program said Monday that they had been told so little that there was no effective Congressional oversight for it.

In a highly unusual move, Senator John D. Rockefeller IV of West Virginia released a letter he sent to Vice President Dick Cheney on July 17, 2003, complaining that "given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities." The letter was handwritten because secrecy rules prevented him from giving it to anyone to type.

On Monday Mr. Rockefeller said that after he sent his letter to Mr. Cheney, "these concerns were never addressed, and I was prohibited from sharing my views with my colleagues."

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, said, "I am skeptical of the attorney general's citation of authority, but I am prepared to listen."

Mr. Specter, who has said he will hold hearings on the program soon after the confirmation hearings for the Supreme Court nominee, Judge Samuel A. Alito Jr., said he did not believe the president's decision to inform a handful of members of Congress was sufficient.

"I think it does not constitute a check and balance," he said. "You can't have the administration and a select number of members alter the law. It can't be done."

Mr. Specter also predicted that the domestic spying debate would spill over into Judge Alito's confirmation. On Monday, he sent the judge a letter saying he intended to ask "what jurisprudential approach" the judge would use in determining if the president had authority to establish the program.

"The fat's in the fire," Mr. Specter said. "This is going to be a big, big issue. There's a lot of indignation across the country, from what I see."

Mr. Bush, Mr. Gonzales and Lt. Gen. Gen. Michael V. Hayden, the nation's second-ranking intelligence official and a former director of the National Security Agency, which conducted the surveillance, stepped around questions about why officials decided not to use emergency powers they have under the existing foreign surveillance law. The law allows them to tap international communications of people in the United States and then go to a secret court up to 72 hours later for retroactive permission.

"The whole key here is agility," General Hayden said, adding that the aim "is to detect and prevent."

Administration officials, speaking anonymously because of the sensitivity of the information, suggested that the speed with which the operation identified "hot numbers" - the telephone numbers of suspects - and then hooked into their conversations lay behind the need to operate outside the old law.

Soon after Mr. Bush spoke, three senior Democrats influential on national security matters - Senators Carl Levin of Michigan, Jack Reed of Rhode Island and Russell Feingold of Wisconsin - assailed the president for bypassing the court that Congress set up a quarter-century ago to make sure intelligence agencies do not infringe on the privacy of Americans.

"He can go to the court retroactively," Mr. Levin, the ranking Democrat on the Armed Services Committee, told reporters, referring to the 72-hour rule.

Mr. Bush - who initially resisted a public investigation into the Sept. 11 attacks and the intelligence failures in Iraq - used his news conference Monday to discourage Congress from publicly delving into the program, saying that "public hearings on programs will say to the enemy, 'Here's what they do, adjust.' " He repeatedly cited the case of Osama bin Laden, who was widely reported to have stopped using a satellite telephone after news reports that intelligence agencies were listening in.

The White House briefing itself was unusual, with two of the administration's most senior officials discussing legal and operational details of what Mr. Gonzales described as "probably the most classified program that exists in the United States government."

Mr. Gonzales said the president had "the inherent authority under the Constitution" as commander in chief to authorize the program. He also argued that the legal rationale followed the logic in a Supreme Court decision last year in the case of an enemy combatant named Yaser Esam Hamdi, an American citizen who was detained in Afghanistan on the battlefield.

In addition, Mr. Gonzales said the administration believed that Congress gave the president clear and broad authorization to attack Al Qaeda in a resolution passed on Sept. 14, 2001, that set the stage for the invasion of Afghanistan. That resolution authorized the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Many members of Congress say that in authorizing the military invasion of Afghanistan days after the Sept. 11 attacks, they never intended or envisioned that the authority could be applied to searches without warrants within the United States.

Mr. Gonzales and General Hayden were careful to emphasize that the surveillance program was "limited" in scope.

"People are running around saying that the United States is somehow spying on American citizens calling their neighbors," Mr. Gonzales said. In fact, he said, it was "very, very important to understand" that the program is limited to calls and communications between the United States and foreign countries.

"What we're trying to do is learn of communications, back and forth, from within the United States to overseas members of Al Qaeda," he said. "And that's what this program is about."

He added: "This is not about wiretapping everybody. This is about a very concentrated, very limited program focused on gaining information about our enemy."

As the administration has argued since the disclosure of the program Thursday night, Mr. Gonzales and General Hayden said the normal system for issuing warrants for a domestic surveillance operation - required in 1978 in a program that grew out of the improper surveillance of political dissidents - was inadequate in some cases.

Regarding a possible leak investigation, which would be handled by the Justice Department, Mr. Gonzales said: "This is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we'll just have to wait and see."

When questions at the news conference turned to Iraq, Mr. Bush urged reporters to look at rationales he offered for invading the country that went beyond its suspected caches of weapons of mass destruction, including his vision of creating democratic havens in the Middle East. But he acknowledged that the failure to find weapons in Iraq made it difficult to make the case "in the public arena" that countries like Iran are pursuing nuclear weapons, as Mr. Bush has charged.

He said, "People will say, if we're trying to make the case on Iran, well, the intelligence failed in Iraq, therefore how can we trust the intelligence in Iran?" Later, he added, "It's no question that the credibility of intelligence is necessary for good diplomacy."

Eric Schmitt and Sheryl Gay Stolberg contributed reporting for this article.
http://www.nytimes.com/2005/12/20/po... ner=homepage

Behind Power, One Principle as Bush Pushes Prerogatives
Scott Shane

A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency.

From the government's detention of Americans as "enemy combatants" to the just-disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's authority. That stance has given the administration leeway for decisive action, but it has come under severe criticism from some scholars and the courts.

With the strong support of Vice President Dick Cheney, legal theorists in the White House and Justice Department have argued that previous presidents unjustifiably gave up some of the legitimate power of their office. The attacks of Sept. 11, 2001, made it especially critical that the full power of the executive be restored and exercised, they said.

The administration's legal experts, including David S. Addington, the vice president's former counsel and now his chief of staff, and John C. Yoo, deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from 2001 to 2003, have pointed to several sources of presidential authority.

The bedrock source is Article 2 of the Constitution, which describes the "executive power" of the president, including his authority as commander in chief of the armed forces. Several landmark court decisions have elaborated the extent of the powers.

Another key recent document cited by the administration is the joint resolution passed by Congress on Sept. 14, 2001, authorizing the president to "use all necessary and appropriate force" against those responsible for Sept. 11 in order to prevent further attacks.

Mr. Yoo, who is believed to have helped write a legal justification for the National Security Agency's secret domestic eavesdropping, first laid out the basis for the war on terror in a Sept. 25, 2001, memorandum that said no statute passed by Congress "can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response."

That became the underlying justification for numerous actions apart from the eavesdropping program, disclosed by The New York Times on Thursday night. Those include the order to try accused terrorists before military tribunals; the detention of so-called enemy combatants at Guantánamo Bay, Cuba, and in secret overseas jails operated by the Central Intelligence Agency; the holding of two Americans, Jose Padilla and Yaser Esam Hamdi, as enemy combatants; and the use of severe interrogation techniques, including some banned by international agreements, on Al Qaeda figures.

Mr. Yoo, now a law professor at the University of California, Berkeley, declined to comment for this article. But Bradford A. Berenson, who served as associate counsel to President Bush from 2001 to 2003, explained the logic behind the assertion of executive power.

"After 9/11 the president felt it was incumbent on him to use every ounce of authority available to him to protect the American people," Mr. Berenson said.

He said he was not familiar with the N.S.A. program, in which the intelligence agency, without warrants, has monitored international telephone calls and international e-mail messages of people inside the United States. He said that he could not comment on whether the program was justified, but that he believed intelligence gathering on an enemy was clearly part of the president's constitutional war powers.

"Any program like this would have been very carefully analyzed by administration lawyers," Mr. Berenson said. "It's easy, now that four years have passed without another attack, to forget the sense of urgency that pervaded the country when the ruins of the World Trade Center were still smoking."

But some legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential- powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush's assertion of his powers.

"Obviously we have to do things differently because of the terrorist threat," said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. "But to do it without the participation of the Congress and the courts is unwise in the extreme."

Even if the administration believes the president has the authority to direct warrantless eavesdropping, she said, ordering it without seeking Congressional approval was politically wrongheaded. "We're just relearning the lessons of Vietnam and Watergate," said Ms. Parker, now dean of the University of the Pacific McGeorge School of Law.

Jeffrey H. Smith, who served as C.I.A. general counsel in 1995 and 1996, said he was dismayed by the N.S.A. program, which he said was the latest instance of legal overreach by the administration.

"Clearly the president felt after 9/11 that he needed more powers than his predecessors had exercised," Mr. Smith said. "He chose to assert as much power as he thought he needed. Now the question is whether that was wise and consistent with our values."

William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration's past assertions of presidential powers.

"I was frankly astonished by the story," he said. "My head is spinning."

Professor Banks said the president's power as commander in chief "is really limited to situations involving military force - anything needed to repel an attack. I don't think the commander in chief power allows" the warrantless eavesdropping, he said.

Mr. Berenson, the former White House associate counsel, said that in rare cases, the presidents' advisers may decide that an existing law violates the Constitution "by invading the president's executive powers as commander in chief."

The Foreign Intelligence Surveillance Act of 1978 typically requires warrants for the kind of eavesdropping carried out under the special N.S.A. program. Whether administration lawyers argued that that statute unconstitutionally infringed the president's powers is not known.

But Mr. Smith, formerly of the C.I.A., noted that when President Carter signed the act into law in 1978, he seemed to rule out any domestic eavesdropping without court approval.

"The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States" if an American's communications might be intercepted, President Carter said when he signed the act.

By asserting excessive powers, Mr. Smith said, President Bush may provoke a reaction from Congress and the courts that ultimately thwarts executive power.

"The president may wind up eroding the very powers he was seeking to exert," Mr. Smith said.

F.B.I. Watched Activist Groups, New Files Show
Eric Lichtblau

Counterterrorism agents at the Federal Bureau of Investigation have conducted numerous surveillance and intelligence-gathering operations that involved, at least indirectly, groups active in causes as diverse as the environment, animal cruelty and poverty relief, newly disclosed agency records show.

F.B.I. officials said Monday that their investigators had no interest in monitoring political or social activities and that any investigations that touched on advocacy groups were driven by evidence of criminal or violent activity at public protests and in other settings.

After the attacks of Sept. 11, 2001, John Ashcroft, who was then attorney general, loosened restrictions on the F.B.I.'s investigative powers, giving the bureau greater ability to visit and monitor Web sites, mosques and other public entities in developing terrorism leads. The bureau has used that authority to investigate not only groups with suspected ties to foreign terrorists, but also protest groups suspected of having links to violent or disruptive activities.

But the documents, coming after the Bush administration's confirmation that President Bush had authorized some spying without warrants in fighting terrorism, prompted charges from civil rights advocates that the government had improperly blurred the line between terrorism and acts of civil disobedience and lawful protest.

One F.B.I. document indicates that agents in Indianapolis planned to conduct surveillance as part of a "Vegan Community Project." Another document talks of the Catholic Workers group's "semi-communistic ideology." A third indicates the bureau's interest in determining the location of a protest over llama fur planned by People for the Ethical Treatment of Animals.

The documents, provided to The New York Times over the past week, came as part of a series of Freedom of Information Act lawsuits brought by the American Civil Liberties Union. For more than a year, the A.C.L.U. has been seeking access to information in F.B.I. files on about 150 protest and social groups that it says may have been improperly monitored.

The F.B.I. had previously turned over a small number of documents on antiwar groups, showing the agency's interest in investigating possible anarchist or violent links in connection with antiwar protests and demonstrations in advance of the 2004 political conventions. And earlier this month, the A.C.L.U.'s Colorado chapter released similar documents involving, among other things, people protesting logging practices at a lumber industry gathering in 2002.

The latest batch of documents, parts of which the A.C.L.U. plans to release publicly on Tuesday, totals more than 2,300 pages and centers on references in internal files to a handful of groups, including PETA, the environmental group Greenpeace and the Catholic Workers group, which promotes antipoverty efforts and social causes.

Many of the investigative documents turned over by the bureau are heavily edited, making it difficult or impossible to determine the full context of the references and why the F.B.I. may have been discussing events like a PETA protest. F.B.I. officials say many of the references may be much more benign than they seem to civil rights advocates, adding that the documents offer an incomplete and sometimes misleading snapshot of the bureau's activities.

"Just being referenced in an F.B.I. file is not tantamount to being the subject of an investigation," said John Miller, a spokesman for the bureau.

"The F.B.I. does not target individuals or organizations for investigation based on their political beliefs," Mr. Miller said. "Everything we do is carefully promulgated by federal law, Justice Department guidelines and the F.B.I.'s own rules."

A.C.L.U officials said the latest batch of documents released by the F.B.I. indicated the agency's interest in a broader array of activist and protest groups than they had previously thought. In light of other recent disclosures about domestic surveillance activities by the National Security Agency and military intelligence units, the A.C.L.U. said the documents reflected a pattern of overreaching by the Bush administration.

"It's clear that this administration has engaged every possible agency, from the Pentagon to N.S.A. to the F.B.I., to engage in spying on Americans," said Ann Beeson, associate legal director for the A.C.L.U.

"You look at these documents," Ms. Beeson said, "and you think, wow, we have really returned to the days of J. Edgar Hoover, when you see in F.B.I. files that they're talking about a group like the Catholic Workers league as having a communist ideology."

The documents indicate that in some cases, the F.B.I. has used employees, interns and other confidential informants within groups like PETA and Greenpeace to develop leads on potential criminal activity and has downloaded material from the groups' Web sites, in addition to monitoring their protests.

In the case of Greenpeace, which is known for highly publicized acts of civil disobedience like the boarding of cargo ships to unfurl protest banners, the files indicate that the F.B.I. investigated possible financial ties between its members and militant groups like the Earth Liberation Front and the Animal Liberation Front.

These networks, which have no declared leaders and are only loosely organized, have been described by the F.B.I. in Congressional testimony as "extremist special interest groups" whose cells engage in violent or other illegal acts, making them "a serious domestic terrorist threat."

In testimony last year, John E. Lewis, deputy assistant director of the counterterrorism division, said the F.B.I. estimated that in the past 10 years such groups had engaged in more than 1,000 criminal acts causing more than $100 million in damage.

When the F.B.I. investigates evidence of possible violence or criminal disruptions at protests and other events, those investigations are routinely handled by agents within the bureau's counterterrorism division.

But the groups mentioned in the newly disclosed F.B.I. files questioned both the propriety of characterizing such investigations as related to "terrorism" and the necessity of diverting counterterrorism personnel from more pressing investigations.

"The fact that we're even mentioned in the F.B.I. files in connection with terrorism is really troubling," said Tom Wetterer, general counsel for Greenpeace. "There's no property damage or physical injury caused in our activities, and under any definition of terrorism, we'd take issue with that."

Jeff Kerr, general counsel for PETA, rejected the suggestion in some F.B.I. files that the animal rights group had financial ties to militant groups, and said he, too, was troubled by his group's inclusion in the files.

"It's shocking and it's outrageous," Mr. Kerr said. "And to me, it's an abuse of power by the F.B.I. when groups like Greenpeace and PETA are basically being punished for their social activism."
http://www.nytimes.com/2005/12/20/po... ner=homepage

Lawmakers Back Use of Evidence Coerced From Detainees
Eric Schmitt and Tim Golden

House and Senate negotiators agreed Friday to a measure that would enable the government to keep prisoners at Guantánamo Bay indefinitely on the basis of evidence obtained by coercive interrogations.

The provision, which has been a subject of extensive bargaining with the Bush administration, could allow evidence that would not be permitted in civilian courts to be admissable in deciding whether to hold detainees at the American military prison in Guantánamo Bay, Cuba. In recent days, the Congressional negotiators quietly eliminated an explicit ban on the use of such material in an earlier version of the legislation.

The measure is contained in the same military policy bill that includes Senator John McCain's provision to ban the cruel, inhuman and degrading treatment of detainees in American custody worldwide. Mr. Bush reluctantly embraced Mr. McCain's ban on Thursday. The full House is expected to approve the compromise bill soon, with the Senate to follow in the next few days, Congressional officials said.

The juxtaposition of the seemingly contradictory measures immediately led lawyers for Guantánamo prisoners to assert that Congressional Republicans were helping to preserve the utility of coercive interrogations that senior White House officials have argued are vital to the fight against war against terror.

While the measure would allow the Guantánamo prisoners to challenge in federal court their status as enemy combatants and to appeal automatically any convictions and sentences handed down by military tribunals in excess of 10 years, it would still prevent the detainees from asking civilian courts to intervene with the administration over harsh treatment or prison conditions.

Thomas B. Wilner, a lawyer who represents a group of Kuwaiti detainees at Guantánamo Bay, said in an interview that the new language would render the McCain restrictions unenforceable at the Cuban prison. "If McCain is one small step forward, enactment of this language would be two giant steps backwards," Mr. Wilner said.

Two of the main Senate sponsors of the measure, Lindsey Graham, Republican of South Carolina, and Carl Levin, Democrat of Michigan, defended the changes made to the language that the Senate passed last month, 84 to 14.

Mr. Graham acknowledged the measure's intention to make it possible to use information obtained by coercive interrogation techniques in military panels that evaluate whether detainees at Guantánamo are being rightfully held as "enemy combatants." He argued that the techniques were not abusive.

He also said that under his measure, the panels would weigh the value of the intelligence gained from an interrogation against a judgment on whether the statement was coerced. He said in a telephone interview with reporters that the amendment would promote "a balanced approach." A similar rule now applies in the military commissions that have been established to prosecute terror suspects at Guantánamo.

Human rights advocates criticized Mr. Levin, the chief Senate Democratic negotiator, for agreeing to restrict further the legal rights of Guantánamo detainees. Mr. Levin suggested that he had settled for the less damaging of two bad outcomes, saying he had deflected more onerous provisions that House Republicans wanted, including a demand that interrogators who abused prisoners be granted immunity from prosecution. Mr. Levin added in a telephone interview, "I don't think courts will allow coerced evidence in any proceeding."

The Bush administration has repeatedly considered - and rejected - explicitly prohibiting the use of evidence obtained by torture in the military commissions. Most recently, the issue was a major part of a lengthy internal debate over new rules for the tribunals that were promulgated on Aug. 31 in response to longstanding criticism in the United States and overseas that the tribunals are unfair.

Several officials familiar with the internal discussions said State Department officials and some senior Defense Department aides had strongly advocated an explicit ban on the use of evidence obtained by torture in a series of interagency discussions that began last December.

At one point in that process, the Pentagon official in charge of the tribunals, Maj. Gen. John D. Altenburg Jr., who is now retired, proposed barring any "confession or admission that was procured from the accused by torture," according to parts of a draft document read to a reporter. The rule defined torture as any act "specifically intended to inflict severe physical or mental pain and suffering."

The ban was also championed by the counselor of the State Department, Philip D. Zelikow, two officials said. The deputy defense secretary, Gordon R. England, also supported the ban in meetings on the revised commission rules, as did some senior military officers, said a spokesman for Mr. England, Capt. Kevin Wensing.

But such a prohibition was opposed by other officials involved in the debate, including David S. Addington, who was then Vice President Dick Cheney's counsel and is now his chief of staff. A spokesman for the vice president said Mr. Addington would have no comment on his reported role in the policy debates.

Since the drafting of the presidential order that established the commissions on Nov. 13, 2001, White House officials have sought to give the commissions wide latitude to consider evidence that would be inadmissible in civilian courts.

Mr. Addington, who was a primary architect of the presidential order, argued in the debates earlier this year that by explicitly prohibiting evidence obtained by torture, the administration would raise an unnecessary red flag. suggesting at least implicitly that prisoners in American custody were, in fact, being tortured, officials said.

Justice Department officials involved in the debates contended that such a prohibition was not necessary because the matter was already covered by the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, a treaty adopted by the United Nations more than two decades ago and ratified by the United States in 1994.

U.S. Judge On Spy Court Resigns Post
Letter follows reports on Bush wiretap OKs

Carol D. Leonnig and Dafna Linzer, The Washington Post. Post writers Jonathan Weisman and Charles Babington and researcher Julie Tate contributed to this report, as did Tribune news services

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said Tuesday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the work of the FISA court, established under the Foreign Intelligence Surveillance Act.

Robertson, appointed to the federal bench by President Bill Clinton in 1994 and later was selected by Chief Justice William Rehnquist to serve on the foreign intelligence court, declined to comment Tuesday.

Word of Robertson's resignation came as two Senate Republicans joined the call for congressional investigations into the National Security Agency's warrantless interception of telephone calls and e-mails to overseas locations by U.S. citizens suspected of links to terrorist groups.

Sens. Chuck Hagel of Nebraska and Olympia Snowe of Maine echoed concerns raised by Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, who has promised hearings in the new year.

At the White House, spokesman Scott McClellan was asked to explain why Bush last year said that surveillance required court approval.

"Any time you hear the United States government talking about wiretap, it requires--a wiretap requires a court order," Bush said at the time. "Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

McClellan said the quote referred only to the USA Patriot Act.

Vice President Dick Cheney on Tuesday defended the secret wiretaps.

"You know, it's not an accident that we haven't been hit in four years," the vice president said, speaking with reporters on Air Force Two en route from Pakistan to Oman.

Revelation of the program last week by The New York Times also spurred considerable debate among federal judges, including some who serve on the FISA court. For more than a quarter-century, that court had been seen as the only body that could legally authorize secret surveillance of espionage and terrorism suspects, and only when the Justice Department could show probable cause that its targets were foreign governments or their agents.

Robertson indicated privately to colleagues in recent conversations he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain foreign intelligence warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004, and insisted that the Justice Department certify in writing that it was not occurring.

"They just don't know if the product of wiretaps were used for FISA warrants--to kind of cleanse the information," said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. "What I've heard some of the judges say is they feel they've participated in a Potemkin court."

House Passes One-Month Extension of Patriot Act
Charles Babington and Michael A. Fletcher

The House of Representatives agreed to extend a controversial domestic surveillance law this afternoon, but it limited the extension to one month and rejected a carefully brokered compromise from the Senate that had given the law a six-month reprieve.

Top Senate aides said they believed the Senate would endorse the House plan tonight.

President Bush, who had earlier rejected a three-month extension and yesterday embraced the six-month deal, issued a statement this evening saying, "I appreciate the strong commitment by the majority of the House and of the Senate to re-authorize the Patriot Act. . . . I will work closely with the House and Senate to make sure that we are not without this crucial law for even a day."

Major provisions of the Patriot Act are set to expire Dec. 31.

Rep. F. James Sensenbrenner Jr. (R-Wis.), who chairs the House Judiciary Committee, offered the change to a one-month extension, and the Democrats did not object.

After the House vote, Sensenbrenner, who is a strong supporter of the Patriot Act, said he made the change in an effort to force the Senate to act quickly on a long- term version of the bill.

"A six-month extension, in my opinion, would have simply allowed the Senate to duck the issue until the last week in June," Sensenbrenner told reporters, according to the Associated Press.

Bush, who had repeatedly said he would not accept a short-term extension of the Patriot Act, said in a statement: "I appreciate the Senate for working to keep the existing Patriot Act in law through next July, despite boasts last week by the Democratic leader that he had blocked the Act. No one should be allowed to block the Patriot Act to score political points, and I am grateful the Senate rejected that approach."

Congress passed the Patriot Act after the Sept. 11, 2001, terrorist attacks. The law makes it easier for FBI agents to monitor phone calls and e-mails, to search homes and offices, and to obtain the business records of terrorism suspects.

Critics say the proposed four-year renewal, which the House approved last week, is too slanted in the government's favor regarding national security letters and special subpoenas that give the FBI significant leeway in obtaining records. The targeted people should have a greater opportunity to challenge such subpoenas and the government should be required to show stronger evidence linking the items being sought to possible terrorism, they say. Now they have more time to press their case in the bill's rewrite.

Senate Majority Leader Bill Frist (R-Tenn.) said he decided on the six-month extension, although he, too, had repeatedly said he would reject "short-term" extensions such as for three months.

The agreement to extend the Patriot Act in its existing form for six months "made the most sense," Sen. John E. Sununu (R-N.H.) told reporters moments after Senate leaders announced the breakthrough. He was among a handful of Republicans who joined most Senate Democrats in insisting that the planned four-year renewal of the law contain more civil liberties protections.

Sen. Charles E. Schumer (D-N.Y.) said the key to breaking the impasse in the Senate was a letter -- signed earlier yesterday by 52 of the 100 senators, including eight Republicans -- that urged GOP leaders to call a truce in the battle over the act's renewal. They sought a three-month extension of the existing statute but later agreed to six months.

Bush and top Senate Republicans had repeatedly insisted on the full four-year renewal that the House passed on Dec. 14. But they could not overcome the Senate filibuster backed by Sununu, three GOP colleagues and all but two Democrats.

Bush and others have said the Patriot Act is essential to safeguarding the nation from terrorists. Nonetheless, the White House and the Senate had engaged in a week of brinkmanship, refusing to reach an accord and vowing to blame each other if the law expired.

"This is a common-sense solution that gives the Senate more time to craft a consensus bill that will promote our security while preserving our freedom," Sen. Patrick J. Leahy (D-Vt.) said in a statement. "I am pleased the Republican leadership listened to a bipartisan majority of us in the Senate on this important matter that affects all Americans."

All week, Senate leaders had privately acknowledged that there was no hope of overcoming the filibuster led by Democrats and supported by four Republicans. Bush and his top appointees, however, repeatedly called on the Senate to pass the House-approved version.

Even as the 52 senators signed a letter to Frist urging a three-month extension, Bush showed no signs of yielding early yesterday. Speaking to reporters in the morning, he reiterated his demand that the Senate accept the House-passed measure. "This obstruction is inexcusable," Bush said. "The senators obstructing the Patriot Act need to understand that the expiration of this vital law will endanger America and will leave us in a weaker position in the fight against brutal killers."

Asked in the afternoon whether Bush would veto a short-term extension of the act, White House spokesman Scott McClellan referred reporters to his Dec. 16 statement that "the president has made it very clear that he is not interested in signing any short-term renewal."

While the Senate considered the measure, Rep. Sensenbrenner showed little willingness to renegotiate the four-year extension his chamber had originally approved. "Any talk of a short-term extension is fruitless," his spokesman Jeff Lungren said several hours before the Senate six-month deal was announced. "Chairman Sensenbrenner will not accept anything less than a four-year extension of the Patriot Act."

There's No Getting Off That No-Fly List
Caroline Drees

Sarah Zapolsky was checking in for a flight to Italy when she discovered her 9-month-old son's name was on the United States' "no-fly" list of suspected terrorists.

"We pointed down to the stroller, and he sat there and gurgled," Zapolsky said, recalling the incident at Dulles International Airport outside Washington in July. "The desk agent started laughing. ... She couldn't print us out a boarding pass because he's on the no-fly list."

Zapolsky, who did not want her son's name made public, said she was initially amused by the mix-up. "But when I found out you can't actually get off the list, I started to get a bit annoyed."

Zapolsky isn't alone.

According to the Transportation Security Administration, more than 28,000 people have applied to the TSA redress office to get on the "cleared list," which takes note of individuals whose names are similar to those on the terrorism watch list, but does not guarantee an end to no-fly list hassles.

The TSA does not reveal how many or which names are actually on the list, and complaints do not get names removed since they refer to suspected terrorists. The best innocent travelers can hope for is a letter from the TSA which it says should facilitate travel, but is no panacea.

In addition to babies, the victims of mistaken identity on the no-fly list have included aging retirees and public figures such as Democratic Sen. Edward Kennedy of Massachusetts, Republican Rep. Don Young of Alaska and Democratic Rep. John Lewis of Georgia.

"It's a significant problem," said Brenda Jones, the spokeswoman for Rep. Lewis, who travels by plane at least twice a week. She said the congressman had written to the TSA, but "he is still on the no-fly list, and the problems persist."

Secretive List

The classified no-fly list was adopted after the September 11, 2001, hijacked plane attacks to prevent suspected terrorists from getting on aircraft or coming to the United States. Airlines must check passenger names against the list before they are allowed to get on a plane.

While the number of suspected terrorists on the list is unknown, aviation sources estimate it includes tens of thousands of names, if not more.

TSA spokesman Christopher White said the agency had seven people working full-time on processing applications to get on the cleared list. Considering the number of applications, that works out to more than 4,000 complaints per redress officer.

"We do take the cleared list very seriously, and it's also important for us to focus on the right people. It does us no good to focus on the wrong John Doe," White said.

Cleared individuals receive a letter from the TSA which says "we have provided sufficient personal information to the airlines to distinguish you from other individuals" but cautions that "TSA cannot ensure that your travel will be delay free."

John Graham, a 63-year-old former State Department official, said his TSA letter had not helped at all.

"I'm at a point now where I don't really care whether my name is on the list as a mistake, as mistaken identity, or whether someone at TSA does intend to hassle me. The fact is, there's a total absence of due process," he said.

The American Civil Liberties Union calls the no-fly list system unconstitutional, saying it treats people as guilty without a trial and unfairly deprives them of freedoms. It also says the system is an inaccurate and ineffective security method.

Despite efforts by the TSA to address complaints and concerns about the no-fly list, ACLU attorney Reggie Shuford said very little had changed to improve the process.

"We continually hear from people being caught up on the no-fly list with the same frustrating experiences and inability to get off the list," he said.

Peter Johnson, a retired bibliographer at Princeton University, said travel became "hellish" after he discovered his name was on the no-fly list in August 2004.

"I'm not sure if what's behind this is an effort to simply control people or if it's largely mismanagement and poorly conceptualized programming," Johnson said, adding a TSA official had told him there were more than 2,000 other Peter Johnsons in the United States who reported similar problems.

Aging Computers Hobble Homeland Security
Declan McCullagh

Thousands of airline passengers unexpectedly found themselves stranded in line at U.S. border checkpoints in August, after a Department of Homeland Security computer crashed.

At Miami International, some 4,500 frustrated travelers waited in cramped conditions. Airport staff handed out bottles of water and coloring books with crayons for children during the wait for the computer, which checks identities, to come back up.

"This incident was extraordinary," said Greg Chin, an airport spokesman. "In other cases when the computers have been down, it has only been for less than half an hour."

Index cards of biographical data
The crash shuttered the government's main immigration database in Virginia, affecting scores of border entry points. The shutdown highlights the computer problems that the Homeland Security Department is grappling with, as it struggles to reshuffle myriad functions once performed by the now-defunct Immigration and Naturalization Service.

It has been a daunting task. Aging, incompatible systems and outdated processes have contributed to a backlog of approximately 1 million people waiting for a decision from the department's Citizenship and Immigration Services bureau. Computer problems at its Immigration and Customs Enforcement bureau caused a snafu in which student visa holders were jailed overnight or barred from entering the United States.

The U.S. Citizenship and Immigration Services's systems have come in for particular criticism from outside analysts and government auditors, who say these are simply not up to the task of serving the public, especially when coupled with a continuing reliance on paper forms. In some cases, for instance, information typed into one computer must be manually retyped into a second or third.

"All filings are paper-based, which means that everything you submit has to be keyed into the computer, which of course opens up the additional possibility of error, slows the process down and prevents some processes from being automated," said Crystal Williams, deputy director for programs at the American Immigration Lawyers Association.

The USCIS bureau has spent $280 million over the last two years as part of its "backlog initiative" to reduce the number of outstanding cases, but most of that has gone to hire temporary employees. Less than two percent, or $4.5 million, was devoted to computer upgrades. (The Department of Homeland Security's overall budget is $30.8 billion for fiscal year 2006.)

One problem is that applications for different types of immigration status are saved in separate records. These aren't interlinked, which means an application for a H1-B visa is not tied to the same person's application for a green card--causing more paperwork and delays, until the two records can be matched by hand.

Other procedures are equally inefficient. "Heaven forbid if an attorney should change their address," Williams said. "They have to send a change of address for every separate case they've got pending. (Once) I had between 500 and 1,000 cases pending at one time."

Data stumbling blocks
The holdups can be attributed in part to the Homeland Security Department's antiquated computer systems. The agency's mainframes do not share data and are accessible only by some offices. An upgrade to Microsoft's Windows 2000 operating system failed because of application incompatibilities, which meant one division had to undertake a cumbersome reversion back to Windows 95.

In the case of the immigration bureau, there has never been a centralized electronic method for managing the more than 7 million applications that stream each year into 250 USCIS offices scattered across the country and abroad.

Instead, the bureau's outposts rely on about a dozen different systems designed to enter, store and track more than 50 types of forms that cover everything from citizenship applications to student and worker visas and adoptions.

Not one of the systems can talk with another, according to government reports, and not all offices are equipped to log into the systems they need to update records.

Even the bureau's two primary case-management systems, called CLAIMS 3 and CLAIMS 4, are accessible only to certain staff at certain offices. These rely on proprietary software developed by a string of contractors in the early 1990s, "do not share data, and are extremely expensive to modify," the ombudsman concluded. (CLAIMS stands for Computer Linked Application Information Management System.)

CLAIMS 3, for instance, runs on both client-server and mainframe platforms, and USCIS service centers across the country independently use six different versions of the system. On a nightly basis, employees upload the information they've entered that day into a central CLAIMS 3 mainframe--which essentially means that changes to files aren't available until the next day.

All that suggests that a real dent in the USCIS backlog--which peaked at 3.8 million cases in January 2004 and has now settled at around 1 million--is unlikely to occur until the immigration bureau overhauls its geographically dispersed, often incompatible case-management processes.

"Despite repeated assessments and attempts to modernize, USCIS' processing of immigration benefits continues to be inefficient, hindering its ability to effectively carry out its mission," concluded a 56-page report (click for PDF) released this fall by the office of Homeland Security Inspector General Richard Skinner, who is responsible for investigating the department's 22 umbrella agencies.

A decade has elapsed since the last bureauwide upgrade of IT equipment. Some offices have adopted the practice of performing haphazard changes when budget money is left over, Skinner said, leading to a confusing patchwork of hardware and software across the bureau.

In his most recent annual report to Congress, Prakash Khatri, the immigration bureau's ombudsman, warned the Homeland Security Department's outdated technological infrastructure meant that "customer service is compromised." Khatri acts as a representative for people who have encountered problems.

The agency acknowledges that its computer systems remain a daunting obstacle. "The state of USCIS' current systems prevents it from implementing key initiatives, and has only allowed for incremental change," Tarrazzia Martin, the chief information officer for U.S. Customs and Immigration (USCIS), wrote in an e-mail interview with CNET News.com.

Inefficiencies yield delays, frustrations
Oleg Baklenov knows firsthand how paperwork delays by the USCIS can roil a technology worker's family life.

Baklenov, a 34-year-old Russian electrical engineer who came to the U.S. 11 years ago to earn his doctoral degree, currently has a visa that permits him to work for a company in Greensboro, N.C.

Three years ago, he applied for what's commonly known as a green card, a form of immigration status that would permit him to become a permanent resident and seek citizenship. But a technical difficulty in submitting his name to the FBI for a mandatory criminal background check has delayed the process, he said.

People with worker visas have to file extra paperwork--which can take several months to process--to leave and re- enter the United States. Confident that his green-card application would be processed, Baklenov decided not to undertake the task of submitting those additional forms.

But now his ailing grandmother has been admitted to a Czech hospital, and the unexpected delay has effectively barred Baklenov from leaving the country to visit her. "The system will be more efficient if one computer system can communicate with different agencies and request all the checks that they need," said Baklenov, who is representing himself in a federal lawsuit filed in North Carolina, but is hoping for an out-of-court resolution.

William Strassberger, a USCIS spokesperson, said he's not sure what caused Baklenov's problems and said the agency was still waiting for the security check. "If he wanted to make a request for advance parole for emergency medical reasons on behalf of his grandmother, it should be possible to do," Strassberger said. "Usually, we recommend submitting an application four weeks ahead of time, but if it's a situation where it requires urgent travel, it's possible to do that."

Barriers to progress
The situation is complicated by the ripple effects of the federal law creating the Department of Homeland Security, signed by President Bush in 2002, which carved the former Immigration and Naturalization Service into three slices.

Border patrol and customs agents formed the new U.S. Customs and Border Protection unit, while the bureaucracy for processing immigration- related requests was renamed U.S. Citizenship and Immigration Services. The similarly named U.S. Immigration and Customs Enforcement division now includes former INS "detention and removal" agents, federal air marshals and the Federal Protective Service.

Michael Garcia, an assistant secretary at the Department of Homeland Security, has likened the integration process to "trying to change the engine in an airplane in mid-flight." In testimony to the Senate in March, Garcia said: "We have had to build a new agency almost from the ground up--bringing together divisions from four separate agencies into a single functioning unit, and melding the cultures and missions of various units into a unified whole."

Large, distributed government systems are too often victims of poor planning, said Peter Neumann, a principal scientist in the computer science lab at SRI International, a not-for-profit research institute.

"What is needed is a set of requirements that really makes sense in the first place and an architecture that is capable of satisfying those requirements--a very serious software engineering discipline to ensure a system is not only going to meet those requirements but be evolvable over time," said Neumann, who has served on technical advisory committees for the IRS and the Government Accountability Office.

Referring to the August crash that left travelers waiting in line, Homeland Security Department spokesman Jarrod Agen said that some problems are inevitable. "They have computer glitches from time to time due to the complexity of the system, and they're not a frequent thing, but they do happen on occasion, and that was one instance of it." Agen said that contrary to some initial reports, there was no evidence it was caused by a virus.

Plans for change
The USCIS didn't set up its own centralized information technology office until March 2004, a year after Homeland Security was formed. It now says it has a multiyear "IT Transformation Strategy"--but officials have refused to disclose the cost or the anticipated timetable.

Nor is a single document publicly available. Instead, the plans are scattered around in multiple documents, such as a "mission needs" statement, presentations, white papers, and so on, spokesperson Strassberger said. The bureau is currently in the process of awarding contracts and cannot discuss the details, he said.

Some attempts at modernization have been made. It's now possible, for instance, for immigration applicants to file nine types of forms electronically and to check their status online. But because the e-filing system can't talk to any of the existing case management systems that employees use, those employees must manually retype those forms into the appropriate database.

In November, the department completed a "refresh" of workstations in its California service center, installing more than 1,200 new workstations, printers and monitors, and "modernizing and standardizing" its network, according to a December bureau newsletter. Similar updates are scheduled for several more offices in 2006.

Robert Divine, the bureau's acting deputy director, said the organization is committed to making the fixes, but it can't do so without a big budget increase.

Because most of the bureau's revenue comes from application fees, not from the federal government's pockets, "the type of significant, up-front funding that will be required for fully modernizing information technology is not clearly within USCIS' means," Divine said in a September letter to the Department of Homeland Security's assistant inspector general for information technology.

Problems have also plagued computers used by the U.S. Immigration and Customs Enforcement bureau. Since 2003, schools and student-exchange programs have been required to use a Internet-based tool known as the Foreign Student and Exchange Visitor Information System (SEVIS) to store and track personal information about foreign students before, during and after their stay in the United States.

University administrators testifying before a congressional committee have complained that SEVIS frequently lost data, could not handle large batches of information submitted at once, did not provide real-time access to records. The system would sometimes result in documents--many of a confidential nature--inexplicably being printed out on computers at completely different schools.

In its most recent evaluation of SEVIS, published in March, the Government Accountability Office acknowledged that the system is now receiving fewer gripes from educational organizations. GAO said that's partly due to better help desk staffing and training, and new software releases. However, ICE has not resolved all of the system's glitches, it said.

Meanwhile, immigrants like Baklenov continue to wait for results. "We're trying to do as much as we could thru the phone and through talking to our friends in the Czech Republic and asking them to help," he said, referring to his grandmother. "She's still in the hospital and we're trying to do the best for her--from overseas, unfortunately."

Cheney Defends Eavesdropping Without Warrants
Richard W. Stevenson and Adam Liptak

In his first discussion of the underpinnings of the Bush administration's decision to eavesdrop without warrants on communications between the United States and abroad, Vice President Dick Cheney cast the action today as part of a broader effort to reassert powers of the presidency that he said had been dangerously eroded in the years after Vietnam and Watergate.

Talking with a small group of reporters on Air Force Two as he flew from Pakistan to Oman, Mr. Cheney spoke in far broader terms about the effort to expand the powers of the executive than President Bush did on Monday during an hourlong news conference.

"I believe in a strong, robust executive authority and I think that the world we live in demands it," said Mr. Cheney, who was in many ways the intellectual instigator of the rapid expansion of presidential authority as soon as Mr. Bush came to office.

Today, he made no effort to play down his central role in aggressively seizing those powers, citing his early battle to keep private the names of people he consulted while drawing up recommendations for Mr. Bush on energy policy. That effort was ultimately upheld in the courts.

Mr. Cheney appears to have been the first senior administration official to brief a very small number of Congressional leaders on the program and the underlying technology that has permitted the National Security Agency to find and immediately tap into "hot numbers" - telephone calls and e-mail messages suspected to contain communications between terror suspects in the United States and abroad.

Ordinarily, any tap that includes one party inside the United States has required obtaining a warrant from a secret court that oversees the enforcement of the Foreign Intelligence Surveillance Act - itself an effort to address of the abuses during the Watergate scandal.

Mr. Cheney was unapologetic about circumventing the legal protections, echoing President Bush's declarations that it was an appropriate use of executive authority, and going further than Mr. Bush by insisting that it has prevented subsequent attacks.

"The fact of the matter is this is a good, solid program," he said on CNN during his stopover in Pakistan. "It has saved thousands of lives, we are doing exactly the right thing, we are doing it in accordance with the Constitution of the United States, and it ought to be supported. This is not about violating civil liberties, because we're not."

Later, aboard Air Force Two, he said, "I'm sure there is going to be a debate," adding, "It's an important subject." But having served in Congress as chief of staff to President Ford - a period when he first became concerned about infringements on presidential power - he said he believed the pendulum had swung back too far after the Nixon resignation.

After expressing respect for the powers of Congress, he told reporters: "But I do believe that especially in the day and age we live in, the nature of the threats we face, the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy."

He described the War Powers Resolution, passed in 1973 in a post-Vietnam effort by Congress to prevent the president from committing troops without sharp congressional oversight, as "an infringement on the authority of the presidency" and suggested it could be unconstitutional. Similarly, he said budget legislation passed in the 1970's restricted the president's ability to impound money.

"Watergate and a lot of the things around Watergate and Vietnam both during the '70's served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," Mr. Cheney said.

Mr. Cheney's philosophy on both the wiretap issues and detention and interrogation policy took legal form in a series of memorandums and briefs, many of them written by John C. Yoo, then a deputy assistant attorney general in the Justice Department's office of legal counsel.

Professor Yoo, a mild-mannered legal scholar from Boalt Hall, the law school at the University of California at Berkeley, has told friends that he was taken aback when he became the best-known proponent of pushing the envelope of presidential powers. But many of the documents he and his colleagues wrote described broad and unilateral executive power to combat terrorism, including detaining people without charge indefinitely, subjecting detainees to harsh interrogations and to eavesdropping without first obtaining warrants, under some conditions.

For example, in a Sept. 21, 2001, memorandum, administration lawyers said that eavesdropping on telephone calls and e-mail messages without a court's permission could be proper, notwithstanding the Fourth Amendments ban on unreasonable searches and seizures.

"The government may be justified," Mr. Yoo wrote in the memorandum, "in taking measures which in less troubled conditions could be seen as infringements of individual liberties." Four days later, Mr. Yoo wrote that Congress cannot place "limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."

"These decisions," wrote Mr. Yoo, who left the administration two years ago, "under our Constitution, are for the president alone to make."

Both Mr. Bush and Mr. Cheney in the past two days have drawn on that theory as they pointed to two basic sources of legal power. The first is in Article II of the Constitution itself, which vests the "executive power" in the president and makes him commander in chief of the military. Mr. Cheney discussed that at length today. The second is Congressional authorization to use military force in response to the Sept. 11 attacks.

"When we were hit on 9/11," Mr. Cheney said, President Bush "was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done." At another point he noted that "the 9/11 commission criticized everybody in government because we didn't connect the dots."

"Now we are connecting the dots and they're still complaining, so it seems to me you can't have it both ways," he said.

But it is not clear that either of those sources of legal authority fully support all aspects of the administration's expansive view of executive power.

"Broad claims of authority and broad claims of illegality are equally suspect," said Douglas W. Kmiec, a law professor at Pepperdine University.

Geoffrey R. Stone, a law professor at the University of Chicago, said he found the issue straightforward, at least as regards surveillance by the National Security Agency.

"Some legal questions are hard," Professor Stone said. "This one is not. The president's authorizing of N.S.A. to spy on Americans is blatantly unlawful and unconstitutional."

Mr. Cheney, unsurprisingly, took the opposite view, noting that he has been expressing his views on the subject as far back as 1987, when, as a Republican member of Congress from Wyoming, he contributed to the minority views in the Congressional report on the Iran-contra affair.

"Part of the argument in Iran-Contra was whether or not the president had the authority to do what was done in the Reagan years," he said. "And those of us in the minority wrote minority views that were actually authored by a guy working for me, one of my staff people, that I think are very good at laying out a robust view of the president's prerogatives with respect to the conduct of especially foreign policy and national security matters."

Asked if the proper balance had been restored under Mr. Bush, he said, "I do think it's swung back."

Mr. Cheney suggested that Democrats who push to pare back the powers of the presidency in the wake of the disclosure of the eavesdropping program would pay a political price.

"Either we're serious about fighting the war on terror or we're not," he said. "Either we believe that there are individuals out there doing everything they can to try to launch more attacks, try to get ever deadlier weapons to use against us or we don't. The president and I believe very deeply that there is a hell of a threat."

It is unclear that Mr. Bush's order to the N.S.A. will reach the courts; the names of those tapped are kept secret. Nor is it clear whether the courts will be ready to adopt the broad definition of presidential power expressed by Mr. Bush, Mr. Cheney and Professor Yoo.

Symantec refuses to sell audit tool outside the US

Return Of The Crypto Wars?
John Leyden

Exclusive Symantec has stopped selling a password auditing tool to customers outside the US and Canada, citing US Government export regulations.

A Reg reader who works for a large UK supermarket was this month unable to buy a copy of LC 5, a tool developed by @stake prior to its recent acquisition by Symantec. LC 5 is the commercial version of a password auditing / breaking tool better known as L0phtCrack.

"A month ago I could have bought it from the @stake web site, that website has gone and the product has not appeared on the Symantec web site. I inquired if I could purchase the product, only to be told that it will only be sold to US and Canadian customers," our correspondent informs us. "I guess I'll just have to go back to using John the Ripper."

Symantec's restrictions recall the dark days of the crypto wars when users outside the US were not entitled to buy products featuring strong ciphers. These rules, relaxed by the Clinton administration and following a long running campaign by cryptography experts and net activists, are once again rearing their head. Symantec's response to our reader (below) suggests the policy was imposed on it by the US government.

Unfortunately, due to strict US Government export regulations Symantec is only able to fulfill new LC5 orders or offer technical support directly with end-users located in the United States and commercial entities in Canada, provided all screening is successful.

Commodities, technology or software is subject to U.S. Dept. of Commerce, Bureau of Industry and Security control if exported or electronically transferred outside of the USA. Commodities, technology or software are controlled under ECCN 5A002.c.1, cryptanalytic.

You can also access further information on our web site at the following address: http://www.symantec.com/region/reg_e...ise/index.html

Beyond confirming that "the statement you have received from your reader is correct", Symantec declined to field questions on the rationale for its policy and whether it applies to other products. Any US government policy to impose export regulations on security technologies would be futile since, to cite only one reason, many security firms are based outside the US and therefore unaffected by such regulations.

How A Terror Group Cloned Ted Rogers' Cellphone
Peter Cheney

A journey of 1,000 miles begins with a single step — and so it was that law professor Susan Drummond's long, strange trip into the world of wireless security, where she learned that a terrorist organization had appropriated Ted Rogers' cellphone number, was launched by the arrival of a phone bill for $12,237.60.

Ms. Drummond, who had just returned from a month-long trip to Israel, went numb as she looked at the stupefying figure, which was more than 160 times higher than her typical monthly bill of about $75. The Rogers Wireless bill included a five-page list of calls charged to her phone, almost all of them to foreign countries that included Pakistan, Libya, Syria, India and Russia.

Ms. Drummond quickly determined what had happened: Someone had stolen her phone while she was away. She called Rogers Wireless, which told her there was nothing it could do, and she would have to pay the entire amount.

“I was shocked,” she said. “Who wouldn't be?”

Since making that call to Rogers last August, Ms. Drummond and her partner, Harry Gefen, have been researching the cellphone giant, yielding some unexpected discoveries, among them that the phones of senior Rogers executives, including Mr. Rogers himself, were repeatedly “cloned” by terrorist groups that used them to make thousands of overseas calls.

That bit of information came out at a conference Mr. Gefen attended in September, where he spoke with Cindy Hopper, a manager in Rogers security department, who told him that the phones of top Rogers executives had been the target of repeated cloning by a group linked to Hezbollah. (Cloning involves the duplication of a cellphone's identity by capturing its number and encrypted security code.)

Speaking into Mr. Gefen's tape recorder — and unaware that he was an aggrieved customer — Ms. Hopper said terrorist groups had identified senior cellphone company officers as perfect targets, since the company was loath to shut off their phones for reasons that included inconvenience to busy executives and, of course, the public- relations debacle that would take place if word got out.

“They were cloning the senior executives repeatedly, because everyone was afraid to cut off Ted Rogers' phone,” Ms. Hopper says on the tape.

“They were using actually a pretty brilliant psychology. Nobody wants to cut off Ted Rogers' phone or any people that are directly under Ted Rogers, so they took their scanners to our building, like our north building, where our senior top, top, top executives are. They took their scanners there and also to Yorkville, where there are a lot of high rollers and like it would be a major PR blunder to shoot first and ask questions later. . . . Nobody wants to shut off Ted. Even if he is calling Iran, Syria, Lebanon, and Kuwait.”

Ms. Hopper also told Mr. Gefen what he had come to suspect — that Rogers has automated security systems that alert them to radical changes in calling patterns like the ones that Ms. Drummonds' phone had undergone.

Armed with this knowledge, Ms. Drummond is pursuing legal action against the cellphone giant, charging that the company can easily spot a fraud-in-progress, yet “lets the meter run.”

“There's a lot they don't want people to know,” Ms. Drummond says. “They're afraid that people will lose faith in the system.”

Ms. Drummond, who teaches law at Osgoode Hall, is suing Rogers in small claims court, and has filed hundreds of pages of documents to support her charges that the company is profiting from crime by failing to shut down stolen or cloned cellphones.

“There's more at stake here than money,” she says.

But as the battle between Ms. Drummond and Rogers Wireless mounts, so do the charges. Each month, the company has added late fees to the outstanding balance (according to Ms. Drummond, the interest rate works out to 26 per cent annually). Rogers now wants a total of $14,141.00.

Ms. Drummond and Mr. Gefen, a technology journalist, have spent the past several months researching cellphone security. Mr. Gefen, who describes himself as “curious by nature,” hit pay dirt in September when he attended the Toronto Fraud Forum, an annual conference for security experts.

He decided to go after noticing that one of the speakers was Cindy Hopper, a manager in Rogers fraud and security department, who was scheduled to give a speech titled “Using Cellphone Records to Investigate Fraud, Insurance Claims and Crime.”

On Sept. 27, Mr. Gefen arrived at the conference, which was held at a Ramada Inn near Highway 401 and the Don Valley Parkway in Toronto. He paid a $200 registration fee and wore a nametag marked “Harry Gefen/ Knowledge Media.”

After listening to Ms. Hopper's speech, Mr. Gefen engaged her in a tape-recorded follow-up conversation that provided an unexpected glimpse into the secret world of cellphone security. Ms. Hopper said Rogers definitely has the means to spot unusual activity on an account, using technology similar to that used by banks to spot fraudulent activity involving debit or credit cards.

“We have a fraud-management system that looks for extraordinary patterns,” she told Mr. Gefen.

“And what activates it?” he asked.

“It would be something like, say, you'd never called long distance before and suddenly your phone gets, uh, nonstop to India,” she replied.

“What happens after that point?” Mr. Gefen asked.

“Someone calls the customer and asks them whether they're really doing that or whether someone's stolen their phone,” she said. Ms. Hopper said that if a customer can't be reached, the company sometimes cuts off the phone's long-distance access to prevent further fraud.

In her statement of claim against Rogers, Ms. Drummond charges that Rogers Wireless knew that something was amiss with her cellphone, yet did nothing to stop it. She notes that she had never made an overseas call with the phone, yet in the month of August, it was used to make more than 300.

“Rogers has a systematic, computer-generated program that immediately alerts their fraud department of atypical calling patterns,” she says in one court filing. “. . . In relation to the contract for my cellphone number, Rogers breached its duty of care to prevent fraudulent phone calls being made. . . .”

Jan Innes, a vice-president with Rogers Communications, confirmed that the company has an automatic fraud-detection system that flags suspicious calling patterns, but refused to say how it works. “We do not give out information that might help people get around the system,” she said.

Ms. Innes said that Rogers has a policy of contacting consumers if fraud is suspected. In some cases, she admitted, phones are shut off automatically, but refused to say what criteria were used. (Ms. Drummond and Mr. Gefen believe that the company bases the decision on a customer's creditworthiness. “If you have the financial history, they let the meter run,” Ms. Drummond said.) Ms. Drummond noted that she has a salary of more than $100,000, and a sterling credit history. “They knew something was wrong, but they thought they could get the money out of me. It's ridiculous.”

Ms. Innes denies that charge. “Creditworthiness doesn't enter into it,” she said. Ms. Innes conceded that the hundreds of calls made to foreign hot spots represented a dramatic change in Ms. Drummond's phone usage, but insists that Rogers does not bear responsibility for failing to shut off the service when they couldn't contact her.

“That was in the terms of her contract,” she said. “. . . Many of our customers have unusual patterns. It would be onerous if we shut them all down.”

In court filings, the company has made it clear that it intends to hold Ms. Drummond responsible for the calls made on her phone. “. . . the plaintiff is responsible for all calls made on her phone prior to the date of notification that her phone was stolen,” the company says. “The Plaintiff's failure to mitigate deprived the Defendant of the opportunity to take any action to stop fraudulent calls prior to the 28th of August 2005.”

Ms. Innes said the company has offered to settle the case with Ms. Drummond, but said she has refused. Ms. Drummond confirmed that the company had offered to write off the bill if she pays $2,000, but she has rejected the offer.

“I shouldn't have to pay any of this,” she said. “The company knew what was going on. I'm not going to pay them for theft.”

NYC Police Infiltrate Protests, Videotapes Show
Jim Dwyer

Undercover New York City police officers have conducted covert surveillance in the last 16 months of people protesting the Iraq war, bicycle riders taking part in mass rallies and even mourners at a street vigil for a cyclist killed in an accident, a series of videotapes show.

In glimpses and in glaring detail, the videotape images reveal the robust presence of disguised officers or others working with them at seven public gatherings since August 2004.

The officers hoist protest signs. They hold flowers with mourners. They ride in bicycle events. At the vigil for the cyclist, an officer in biking gear wore a button that said, "I am a shameless agitator." She also carried a camera and videotaped the roughly 15 people present.

Beyond collecting information, some of the undercover officers or their associates are seen on the tape having influence on events. At a demonstration last year during the Republican National Convention, the sham arrest of a man secretly working with the police led to a bruising confrontation between officers in riot gear and bystanders.

Until Sept. 11, the secret monitoring of events where people expressed their opinions was among the most tightly limited of police powers.

Provided with images from the tape, the Police Department's chief spokesman, Paul J. Browne, did not dispute that they showed officers at work but said that disguised officers had always attended such gatherings - not to investigate political activities but to keep order and protect free speech. Activists, however, say that police officers masquerading as protesters and bicycle riders distort their messages and provoke trouble.

The pictures of the undercover officers were culled from an unofficial archive of civilian and police videotapes by Eileen Clancy, a forensic video analyst who is critical of the tactics. She gave the tapes to The New York Times. Based on what the individuals said, the equipment they carried and their almost immediate release after they had been arrested amid protesters or bicycle riders, The Times concluded that at least 10 officers were incognito at the events.

After the 2001 terrorist attacks, officials at all levels of government considered major changes in various police powers. President Bush acknowledged last Saturday that he has secretly permitted the National Security Agency to eavesdrop without a warrant on international telephone calls and e-mail messages in terror investigations.

In New York, the administration of Mayor Michael R. Bloomberg persuaded a federal judge in 2003 to enlarge the Police Department's authority to conduct investigations of political, social and religious groups. "We live in a more dangerous, constantly changing world," Police Commissioner Raymond W. Kelly said.

Before then, very few political organizations or activities were secretly investigated by the Police Department, the result of a 1971 class-action lawsuit that charged the city with abuses in surveillance during the 1960's. Now the standard for opening inquiries into political activity has been relaxed, full authority to begin surveillance has been restored to the police and federal courts no longer require a special panel to oversee the tactics.

Mr. Browne, the police spokesman, said the department did not increase its surveillance of political groups when the restrictions were eased. The powers obtained after Sept. 11 have been used exclusively "to investigate and thwart terrorists," Mr. Browne said. He would not answer specific questions about the disguised officers or describe any limits the department placed on surveillance at public events.

Jethro M. Eisenstein, one of the lawyers who brought the lawsuit 34 years ago, said: "This is a level-headed Police Department, led by a level-headed police commissioner. What in the world are they doing?"

For nearly four decades, civil liberty advocates and police officials have fought over the kinds of procedures needed to avoid excessive intrusion on people expressing their views, to provide accountability in secret police operations and to assure public safety for a city that has been the leading American target of terrorists.

To date, officials say no one has complained of personal damage from the information collected over recent months, but participants in the protests, rallies and other gatherings say the police have been a disruptive presence.

Ryan Kuonen, 32, who took part in a "ride of silence" in memory of a dead cyclist, said that two undercover officers - one with a camera - subverted the event. "They were just in your face," she said. "It made what was a really solemn event into something that seemed wrong. It made you feel like you were a criminal. It was grotesque."

Ms. Clancy, a founder of I-Witness Video, a project that collected hundreds of videotapes during the Republican National Convention that were used in the successful defense of people arrested that week, has assembled videotape of other public events made by legal observers, activists, bystanders and police officers.

She presented examples in October at a conference of defense lawyers. "What has to go on is an informed discussion of policing tactics at public demonstrations, and these images offer a window into the issues and allow the public to make up their own mind," Ms. Clancy said. "How is it possible for police to be accountable when they infiltrate events and dress in the garb of protesters?"

The videotapes that most clearly disclosed the presence of the disguised officers began in August 2004. What happened before that is unclear.

Among the events that have drawn surveillance is a monthly bicycle ride called Critical Mass. The Critical Mass rides, which have no acknowledged leadership, take place in many cities around the world on the last Friday of the month, with bicycle riders rolling through the streets to promote bicycle transportation. Relations between the riders and the police soured last year after thousands of cyclists flooded the streets on the Friday before the Republican National Convention. Officials say the rides cause havoc because the participants refuse to obtain a permit. The riders say they can use public streets without permission from the government.

In a tape made at the April 29 Critical Mass ride, a man in a football jersey is seen riding along West 19th Street with a group of bicycle riders to a police blockade at 10th Avenue. As the police begin to handcuff the bicyclists, the man in the jersey drops to one knee. He tells a uniformed officer, "I'm on the job." The officer in uniform calls to a colleague, "Louie - he's under." A second officer arrives and leads the man in the jersey - hands clasped behind his back - one block away, where the man gets back on his bicycle and rides off.

That videotape was made by a police officer and was recently turned over by prosecutors to Gideon Oliver, a lawyer representing bicycle riders arrested that night.

Another arrest that appeared to be a sham changed the dynamics of a demonstration. On Aug. 30, 2004, during the Republican National Convention, a man with vivid blond hair was filmed as he stood on 23rd Street, holding a sign at a march of homeless and poor people. A police lieutenant suddenly moved to arrest him. Onlookers protested, shouting, "Let him go." In response, police officers in helmets and with batons pushed against the crowd, and at least two other people were arrested.

The videotape shows the blond-haired man speaking calmly with the lieutenant. When the lieutenant unzipped the man's backpack, a two-way radio could be seen. Then the man was briskly escorted away, unlike others who were put on the ground, plastic restraints around their wrists. And while the blond-haired man kept his hands clasped behind his back, the tape shows that he was not handcuffed or restrained.

The same man was videotaped a day earlier, observing the actress Rosario Dawson as she and others were arrested on 35th Street and Eighth Avenue as they filmed "This Revolution," a movie that used actual street demonstrations as a backdrop. At one point, the blond-haired man seemed to try to rile bystanders.

After Ms. Dawson and another actress were placed into a police van, the blond-haired man can be seen peering in the window. According to Charles Maol, who was working on the film, the blond-haired man is the source of a voice that is heard calling: "Hey, that's my brother in there. What do you got my brother in there for?"

After Mr. Browne was sent photographs of the people involved in the convention incidents and the bicycle arrests, he said, "I am not commenting on descriptions of purported or imagined officers."

The federal courts have long held that undercover officers can monitor political activities for a "legitimate law enforcement purpose." While the police routinely conduct undercover operations in plainly criminal circumstances - the illegal sale of weapons, for example - surveillance at political events is laden with ambiguity. To retain cover in those settings, officers might take part in public dialogue, debate and demonstration, at the risk of influencing others to alter opinions or behavior.

The authority of the police to conduct surveillance of First Amendment activities has been shaped over the years not only by the law but also by the politics of the moment and the perception of public safety needs.

In the 1971 class-action lawsuit, the city acknowledged that the Police Department had used infiltrators, undercover agents and fake news reporters to spy on yippies, civil rights advocates, antiwar activists, labor organizers and black power groups.

A former police chief said the department's intelligence files contained a million names of groups and individuals - more in just the New York files than were collected for the entire country in a now-discontinued program of domestic spying by the United States Army around the same time. In its legal filings, the city said any excesses were aberrational acts.

The case, known as Handschu for the lead plaintiff, was settled in 1985 when the city agreed to extraordinary new limits in the investigation of political organizations, among them the creation of an oversight panel that included a civilian appointed by the mayor. The police were required to have "specific information" that a crime was in the works before investigating such groups.

The Handschu settlement also limited the number of police officers who could take part in such investigations and restricted sharing information with other agencies.

Over the years, police officials made no secret of their belief that the city had surrendered too much power. Some community affairs officers were told they could not collect newspaper articles about political gatherings in their precincts, said John F. Timoney, a former first deputy commissioner who is now the chief of police in Miami.

The lawyers who brought the Handschu lawsuit say that such concerns were exaggerated to make limits on police behavior seem unreasonable. The city's concessions in the Handschu settlement, while similar to those enacted during that era in other states and by the federal government, surpassed the ordinary limits on police actions.

"It was to remedy what was a very egregious violation of people's First Amendment rights to free speech and assemble," said Jeremy Travis, the deputy police commissioner for legal affairs from 1990 to 1994.

At both the local and federal level, many of these reforms effectively discouraged many worthy investigations, Chief Timoney said. "The police departments screw up and we go to extremes to fix it," Chief Timoney said. "In going to extremes, we leave ourselves vulnerable."

Mr. Travis, who was on the Handschu oversight panel, said that intelligence officers understood they could collect information, provided they had good reason.

"A number of courts decided there should be some mechanism set up to make sure the police didn't overstep the boundary," said Mr. Travis, who is now the president of John Jay College of Criminal Justice. "It was complicated finding that boundary." The authority to determine the boundary would be handed back to the Police Department after the Sept. 11 attacks.

On Sept. 12, 2002, the deputy police commissioner for intelligence, David Cohen, wrote in an affidavit that the police should not be required to have a "specific indication" of a crime before investigating. "In the case of terrorism, to wait for an indication of crime before investigating is to wait far too long," he wrote.

Mr. Cohen also took strong exception to limits on police surveillance of public events.

In granting the city's request, Charles S. Haight, a federal judge in Manhattan, ruled that the dangers of terrorism were "perils sufficient to outweigh any First Amendment cost."

New guidelines say undercover agents may be used to investigate "information indicating the possibility of unlawful activity"- but also say that commanders should consider whether the tactics are "warranted in light of the seriousness of the crime."

Ms. Clancy said those guidelines offered no clear limits on intrusiveness at political or social events. Could police officers take part in pot-luck suppers of antiwar groups, buy drinks for activists? Could they offer political opinions for broadcast or publication while on duty but disguised as civilians?

Mr. Browne, the police spokesman, declined to answer those questions. Nor would he say how often - if ever - covert surveillance at public events has been approved by the deputy commissioner for intelligence, as the new guidelines require.

Federal Agents' Visit Was A Hoax

Student admits he lied about Mao book
Aaron Nicodemus

The UMass Dartmouth student who claimed to have been visited by Homeland Security agents over his request for "The Little Red Book" by Mao Zedong has admitted to making up the entire story.

The 22-year-old student tearfully admitted he made the story up to his history professor, Dr. Brian Glyn Williams, and his parents, after being confronted with the inconsistencies in his account.

Had the student stuck to his original story, it might never have been proved false.

But on Thursday, when the student told his tale in the office of UMass Dartmouth professor Dr. Robert Pontbriand to Dr. Williams, Dr. Pontbriand, university spokesman John Hoey and The Standard-Times, the student added new details.

The agents had returned, the student said, just last night. The two agents, the student, his parents and the student's uncle all signed confidentiality agreements, he claimed, to put an end to the matter.

But when Dr. Williams went to the student's home yesterday and relayed that part of the story to his parents, it was the first time they had heard it. The story began to unravel, and the student, faced with the truth, broke down and cried.

It was a dramatic turnaround from the day before.

For more than an hour on Thursday, he spoke of two visits from Homeland Security over his inter-library loan request for the 1965, Peking Press version of "Quotations from Chairman Mao Tse-Tung," which is the book's official title.

His basic tale remained the same: The book was on a government watch list, and his loan request had triggered a visit from an agent who was seeking to "tame" reading of particular books. He said he saw a long list of such books.

In the days after its initial reporting on Dec. 17 in The Standard-Times, the story had become an international phenomenon on the Internet. Media outlets from around the world were requesting interviews with the students, and a number of reporters had been asking UMass Dartmouth students and professors for information.

The story's release came at a perfect storm in the news cycle. Only a day before, The New York Times had reported that President Bush had allowed the National Security Agency to conduct wiretaps on international phone calls from the United States without a warrant. The Patriot Act, created in the aftermath of the Sept. 11, 2001, attacks to allow the government greater authority to monitor for possible terrorism activities, was up for re-authorization in Congress.

There was an increased sense among some Americans that the U.S. government was overstepping its bounds and trampling on civil liberties in order to thwart future attacks of terrorism. The story of a college student being questioned for requesting a 40-year old book on Communism fed right into that atmosphere.

In Thursday's retelling of the story, the student added several new twists, ones that the professors and journalist had not heard before. The biggest new piece of information was an alleged second visit of Homeland Security agents the previous night, where two agents waited in his living room for two hours with his parents and brother while he drove back from a retreat in western Massachusetts. He said he, the agents, his parents and his uncle all signed confidentiality agreements that the story would never be told.

He revealed the agents' names: one was Nicolai Brushaev or Broshaev, and the other was simply Agent Roberts. He said they were dressed in black suits with thin black ties, "just like the guys in Men in Black."

He had dates and times and places, things he had signed and sent back in order to receive the book. The tale involved his twin brother, who allegedly requested the book for him at UMass Amherst; his uncle, a former FBI attorney who took care of all the paperwork; and his parents, who signed those confidentiality agreements.

But by now, the story had too many holes. Every time there was a fact to be had that would verify the story -- providing a copy of the confidentiality agreements the student and agent signed, for example -- there would be a convenient excuse. The uncle took all the documents home to Puerto Rico, he said.

What was the address of the Homeland Security building in Boston where he and his uncle visited the agency and actually received a copy of the book? It was a brick building, he said, but he couldn't remember where it was, or what was around it.

He said he met a former professor at the mysterious Homeland Security building who had requested a book on bomb-making, along with two Ph.D. students and a one pursuing a master's degree who had also been stopped from accessing books. The student couldn't remember their names, but the former professor had appeared on the Bill O'Reilly show on Fox News recently, he said.

The former professor's appearance on The O'Reilly Factor did not check out.

Other proof was sought.

Were there any copies of the inter-library loan request? No.

Did the agents leave their cards, or any paperwork at your home? No.

His brother, a student at Amherst, told Dr. Williams that he had never made the inter-library loan request on behalf of his brother.

While The Standard-Times had tape recorded the entire tale on Thursday, the reporter could not reach the student for comment after he admitted making up the story. Phone calls and a note on the door were not returned.

At the request of the two professors and the university, The Standard-Times has agreed to withhold his name.

During the whole episode, the professors said that while they wanted to protect the student from the media that were flooding their voice mails and e-mail boxes seeking comment and information, they also wanted to know: Was the story true?

"I grew skeptical of this story, as did Bob, considering the ramifications," Dr. Williams said yesterday. "I spent the last five days avoiding work, and the international media, and rest, trying to get names and dates and facts. My investigation eventually took me to his house, where I began to investigate family matters. I eventually found out the whole thing had been invented, and I'm happy to report that it's safe to borrow books."

Dr. Williams said he does not regret bringing the story to light, but that now the issue can be put to rest.

"I wasn't involved in some partisan struggle to embarrass the Bush administration, I just wanted the truth," he said.

Dr. Pontbriand said the entire episode has been "an incredible experience and exposure for something a student had said." He said all along, his only desire had been to "get to the bottom of it and get the truth of the matter."

"When it blew up into an international story, our only desire was to interview this student and get to the truth. We did not want from the outset to declare the student a liar, but we wanted to check out his story," he said. "It was a disastrous thing for him to do. He needs attention, he needs care. I feel for the kid. We have great concern for this student's health and welfare."

Mr. Hoey, the university spokesman, said the university had been unable to substantiate any of the facts of the story since it first was reported in The Standard-Times on Dec. 17.

As to any possible repercussions against the student, Mr. Hoey said, "We consider this to be an issue to be handled faculty member to student. We wouldn't discuss publicly any other action. Student discipline is a private matter."

Dr. Williams said the whole affair has had one bright point: The question of whether it is safe for students to do research has been answered.

"I can now tell my students that it is safe to do research without being monitored," he said. "With that hanging in the air like before, I couldn't say that to them."

The student's motivation remains a mystery, but in the interview on Thursday, he provided a glimpse.

"When I came back, like wow, there's this circus coming on. I saw my cell phone, and I see like, wow, I have something like 75 messages and like something like 87 missed calls," he said. "Wow, I was popular. I usually get one or probably two a week and that's about it, and I usually pick them up."
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Playing Favorites On The Net?
Declan McCullagh

Broadband providers and e-commerce companies, historic allies on many political fronts, are finding themselves butting heads over federal legislation that could change the way either side does business.

A bill expected early next year in the U.S. House of Representatives, coupled with recent comments made by executives from BellSouth and the newly merged AT&T and SBC Communications, has raised the prospect of a two-tiered Internet in which some services--especially video--would be favored over others.

No broadband provider has proposed to block certain Web sites. But they have said Yahoo, for instance, could pay a fee to have its search site load faster than Google. Other possibilities include restricting bandwidth-hogging file-swapping applications, or delivering their own video content faster than a similar service provided by rivals.

That prospect has dismayed e-commerce and Internet companies including Amazon.com, eBay, Google and
Microsoft, which are lobbying to maintain what they call the principle of "network neutrality"--namely, that network owners must not pick favorites among the myriad technologies, applications and users that travel across their pipes.

"We're trying to ensure that our customers are able to get to us without impairments along the way," said Paul Misener, vice president for global public policy at Amazon.

Broadband providers, on the other hand, say that intrusive federal legislation would prevent new business models from being invented and reduce the incentive to invest in speedier networks. It also, they say, could prove disruptive.

"Network neutrality is a nearly indefinable concept," said Brian Dietz, a spokesman for the National Cable & Telecommunications Association. "For instance, does network neutrality mean that network operators can't block spam? Should network operators be allowed to stop viruses from spreading? Should large users of peer-to-peer software be allowed unlimited bandwidth so service for other users is slower?"

On one level, the dispute invokes the philosophical question of what legal rules broadband providers will be required to follow. Will they enjoy the freedom to manage their bandwidth as they please, and will Internet users continue to expect that their provider will act as a simple pipe or conduit--one that does not prefer one destination over another?

At another level, though, the political wrangling is a routine business dispute that happens to be playing out before Congress. Not only are Yahoo, Google and Microsoft deeply interested in online video, but AT&T and BellSouth are planning to offer Internet-based television. For them, it's also a way to strike back at cable companies, which sell phone service.

Billions of dollars are at stake. AT&T is spending $5 billion to install an additional 40,000 miles of fiber to its networks and plans to pipe Internet Protocol-based television and other high-speed services into 18 million households by the middle of 2008. Its backbone network already shuttles 4.6 petabytes of data on an average business day. Similarly, Verizon Communications switched on its Fios television service in Texas and has plans to expand to Florida, Virginia and California.

Hypothetical "neutrality" concerns
Amazon and its allies have been touting the importance of network neutrality since at least 2002, and even went so far as to ask the Federal Communications Commission to endorse the principle.

Until recently, their worries were mostly hypothetical and gained little political traction. Michael Powell, FCC chairman at the time, dismissed their concerns a year later, saying there was no need for pre-emptive regulations that could imperil still-to-be discovered business models on the Internet.

Then along came the case of Madison River, a North Carolina telecommunications company that intentionally blocked Internet phone traffic. Madison River had a strong financial incentive: It offered both DSL (digital subscriber line) and voice telephone service.

The FCC responded swiftly to a complaint from Vonage, and Madison River soon agreed to stop blocking voice over Internet Protocol (VoIP) calls.

A few months later, in August, the FCC adopted a "policy statement" (click here for PDF) on network neutrality. While not a binding regulation, the statement says that Americans are "entitled to access the lawful Internet content of their choice." (At the time, Commissioner Michael Copps, a Democrat, said (PDF) he "would have preferred a rule that we could use to bring enforcement action.")

Now Congress is becoming interested. A draft bill (PDF) prepared by Texas Rep. Joe Barton, a Republican who chairs the committee overseeing telecommunications law, says providers "may not block, or unreasonably impair or interfere with, the offering of, access to or the use of any lawful content, application or service provided over the Internet."

But the e-commerce and Internet companies say that language is too vague for comfort. They're also troubled about a section permitting providers to offer their own "broadband video service." That, they say, may create a loophole permitting mischief by the increasing number of broadband providers that offer IP-based television services.

In a statement provided to CNET News.com, BellSouth said it and other broadband providers should be able to offer "different plans that feature enhanced levels of service or that promote their own brand names and products or the services of selected vendors." That includes, BellSouth said, entering "into arrangements with content providers by which the content provider pays for special treatment, such as preferential listing or faster downloads from that provider's Web site or receiving higher quality of service."

The latest broadband bill to enter the fray, introduced last week by Republican Sen. Jim DeMint of South Carolina, proposes a broad deregulatory framework for the communications industry but does not explicitly refer to network neutrality. The closest it comes is to direct the FCC to look for "unfair methods of competition." A similar bill proposed in July by Sen. John Ensign, a Nevada Republican, refers more directly to network neutrality by saying that broadband providers "shall not willfully and knowingly block access" to content. Amazon, however, said such provisions don't go far enough.

SBC, which recently purchased AT&T, created an uproar in the Net world last month with a bold pronouncement: The Googles, Microsofts and Vonages of the world shouldn't expect to freeload off its network.

"I ain't going to let them do that because we have spent this capital and we have to have a return on it," Ed Whitacre, CEO of the newly merged AT&T and SBC, told BusinessWeek magazine in a widely cited interview.

Charging subscribers higher prices for greater connection speeds is nothing new among Internet service providers. Most of the Bells, for instance, now offer tiered DSL plans that start in the $15 range for the slowest download speeds.

"It's similar to paying more to get an overnight package from FedEX or UPS vs. a lesser amount for three- or four- day delivery," said Joe Chandler, a BellSouth representative.

"We have always said that if they want to have, say, a bronze, silver, gold level of Internet access, essentially charging more for more bits...that's fine," said Amazon's Misener.

It's the idea of "impairing" access to content or services that makes companies like Amazon nervous. Misener said he could imagine "discreet" approaches in which a service provider could, for example, return a 404 page- not-found error for every 15th Web hit at a site that doesn't get premium treatment: "It's easy to do, and who is going to be blamed for it? Certainly not the intermediary but the end site."

"We are pleased that the network operators are investing in technology and innovation, and we are proud partners with them in offering content and services to the public," Paul Mitchell, an executive in Microsoft's TV division, told a House committee last month. "We just think that other companies should continue to be able to offer Internet content and services as well."

Not only e-commerce companies are voicing alarm over what they say is a lack of legal protections favoring network neutrality.

Trade association Comptel and about 60 representatives from member companies--including Internet service providers, VoIP sellers, and telephone companies that compete for customers with the Bells--signed a letter earlier this month voicing dissatisfaction with the draft House legislation.

The draft bill will sanction "Internet gatekeepers," wrote Comptel President Earl Comstock. He added: "Allowing this proposed bill to advance any further will undermine the Internet and pave the way for the Bell companies to re-monopolize the nation's communications networks."

No "significant evidence" of problem
Stalling any attempt to craft broad network neutrality rules is the fact that, despite small-scale incidents like Madison River, problems remain mostly theoretical.

FCC Chairman Kevin Martin told a roomful of communications company executives last week that his agency was hesitant to adopt formal Net neutrality rules because "there hasn't been significant evidence of a problem."

A study published by the free-market advocacy group Cato Institute in 2003 says that federal intervention is unwise and would infringe on property rights and limit business models. So did a paper by Christopher Yoo of Vanderbilt University law school. A counterargument (click here for PDF) by law professors Tim Wu and Lawrence Lessig, on the other hand, says the FCC should ensure the Internet remains as neutral toward applications as the electrical power grid.

When it approved the megamergers of SBC with AT&T and Verizon with MCI in late October, the FCC required both companies to adhere to a network neutrality policy for two years following the closing date of the mergers. Meanwhile, broadband companies have vowed for years that they're not interested in preventing access to legal content.

Aside from the Madison River case, examples are scarce. Missouri-based VoIP provider Nuvio has encountered "some issues" with broadband providers physically blocking Port 5060, the most common carrier of Net phone calls, but the company has managed to settle those complaints easily without turning to the FCC, said CEO Jason Talley.

Talley said he worries that broadband providers will instead take up filtering on "a more intelligent level," monitoring packets of information and then prioritizing or degrading certain content as they please. "Typically customers call in and complain about quality if they have problems like that," he said. "You try to fix it; you try to work with them on that. But at the end of the day, you either figure it out, or the customer cancels."

Even Amazon's Misener acknowledged that outright blocking of sites wasn't a problem now, and would not likely become one in the future.

But without legislative intervention, there's reason to fear that Net surfers may find a more restricted Web, Misener said: "What Mr. Whitacre's interview revealed was, I think he said two very distinct things. One is that the service providers have market power...and part two was, we intend to use it."

Texas Utility To Provide Internet Over Power Lines

The utility TXU Corp. said Monday it will offer high-speed Internet service over power lines to several million Texans as part of a $150 million project aimed at improving its ability to monitor the power grid.

The ``smart grid'' buildout will enable what would be the nation's largest broadband-over-power line Internet rollout.

The 10-year partnership with Current Communications Group Inc., a privately held company in Germantown, Md., is not, however, expected to yield residental Internet service until the second half of 2006.

Once completed, the grid will let TXU check meter consumption remotely and pinpoint problems before they become major blackouts.

TXU spokesman Chris Schein said Internet access was secondary to the smart grid capabilities.

``We really believe that what end users are going to appreciate is when the spring storms hit and they don't have an outage,'' he said. ``Or if they do have an outage, it's not as long as it was.''

Construction on the smart grid system will begin early next year along TXU's 14,000 miles of transmission lines and 100,000 miles of distribution lines.

The deal gives Current access to more than 2 million business and residential customers, mostly in the Dallas-Fort Worth area.

Proponents say broadband-over-power line technology, or BPL, could be especially significant for rural areas, where high-speed Internet access has lagged due to the higher costs to telecommunications and cable companies of serving sparsely populated areas.

Though pricing and download speeds haven't been finalized, Current vice president Jay Birnbaum expects to compete directly with cable and DSL providers. BPL moves data at roughly the same speeds as cable or DSL lines.

Current's only existing widespread availability is through Cinergy Corp. in Cincinnati, where it charges between $20 to $45 monthly for Internet speeds of up to 3 megabits per second. Birnbaum wouldn't provide subscriber numbers but said the service was available to about 50,000 customers in Ohio.

Current, which counts Google Inc. and The Hearst Corp. among major investors, has smaller pilot projects in Hawaii, Maryland and Southern California.

Most BPL offerings remain in the test phase, said Alan R. Shark, executive director of the Washington-based Broadband Over Power Lines Industry Association. One of the current largest rollouts is in Manassas, Va., where 850 subscribers have signed up since the municipal utility began offering BPL in October.

Shares of Dallas-based TXU Corp. were down $1.49 to close at $52.09 in trading on the New York Stock Exchange. Shares have ranged from $30.22 to $58.29 in the past year.

Start-Up Merges Cell Phone And PC Into A Handheld
Michael Kanellos

It's a cell phone. It's a computer. It's the two invaluable companions of the modern executive in one.

DualCor Technologies next month will unveil the cPC, a full-fledged handheld Windows XP computer that also comes with a built-in smart phone that runs Windows Mobile 5.0.

The cPC is 6.5 inches long, 3.3 inches wide, 1.2 inches thick and has a 5-inch diagonal screen. It will be aimed at sales representatives and executives who travel extensively, said CEO Steven Hanley, who joined the company seven months ago.

There are signs of demand for such a device. A small but growing number of white-collar workers have begun to trade in their notebooks for BlackBerrys and other handhelds.

Sony and start-up OQO have already introduced full-fledged handheld Windows computers. Customers, however, have not snapped up these devices, in part because of short battery life and limited performance.

Through some engineering and design advances, the cPC's battery lasts long enough to let users run applications simultaneously for eight hours or more, he said.

"We seemed to have cracked the code," Hanley claimed.

The cPc jams two devices into one package, Hanley said. The computer part of the equation consists of Windows XP Tablet operating system, a 1.5GHz C7-M processor from Via Technologies and 1GB of DDR 2 memory.

DualCor went with a Via Technologies chip because it consumed a maximum of 7.5 watts of power, but still provided enough performance to function like a regular computer.

"We had an older version that ran a Transmeta chip, but it took 7.5 to 9 seconds for the document to load," Hanley explained.

The cell phone aspect of the device has Windows Mobile 5.0 Pocket PC phone edition, a PXA communications processor from Intel, 128MB of DRAM and 1GB of flash memory.

Together, the computer and cell phone components share a 40GB hard drive.

While this might look like component overkill, incorporating two distinct computing platforms extends the device's battery life. In full computing mode, the battery lasts about 3 to 4 hours, about the same as a standard laptop.

However, the device can run for eight to 12 hours in "smart phone" mode. Because of the memory footprint and other technology, users can access and receive e-mail in smart-phone mode and run applications such as PowerPoint in a limited fashion. As a result, the PC components and OS are asleep most of the time.

"When you pull up an application you can decide whether to run it in x86 mode or on the smart phone," he said. The choice between using the mobile parts or PC elements can also be automated.

The cPC also comes with a few additional features that add shine to its sparkle factor. The screen is made from special glass, manufactured by LG, which provides a brightness level of 200 NITS, which the company claims is brighter than most other smart phone screens.

The company figured how to include TabletPC functionality without incorporating a digitizer, which is an additional chip.

Users can also dock the cPC like a CPU, plugging it into an outlet and LCD screen and it will feel no different than using a regular desktop.

One thing the cPC won't be is cheap. The system--which will get shown off at the Computer Electronics Show and become available in March--will carry a $1,500 price tag, although customers will get volume discounts for buying several at once.

Price could be a problem, said Roger Kay, president of Endpoint Technologies.

"There are a lot of subsidies out there in the BlackBerry world, so people aren't used to paying a lot of money for them. Notebooks are going down in price" he said. "I don't know where the magic number is, but it is somewhere in the mid-hundreds."

Nonetheless, the design could grab the attention of shoppers. "It pushes the envelope on what devices can do. It will certainly get a lot of raised eyebrows," Kay added.

Several large companies and consulting firms have already agreed to purchase units, at least for trial, he said. The company has also attracted advisers such as Gordon Bell, the Microsoft Research luminary, and Accenture's Cindy Warner, who advises large corporations on enterprise resource planning and corporate software issues.

Although this is DualCor's first product, the company has been around since 2001. It was founded by Bryan Cupps and Tim Glass. Earlier, the two founded Cyberslice, the first online pizza-delivery service, back in the mid-'90s when anything seemed possible.

DualCor originally thought it would sell to consumers, a market targeted by OQO and Good Technology. Cupps knew Hanley from when they both worked in the enterprise software industry and they ran into each other again in 2004.

Hanley was immediately enthusiastic. He recalls telling Cupps: "What you have here is genius, but it's aimed at the wrong people. This is for the global knowledge worker."

Microsoft Patch Jams Up IE
Joris Evers

Last Tuesday's "critical" security fix for Internet Explorer is causing trouble for users who have been testing the new IE 7 browser.

Microsoft has received "scattered reports of users experiencing odd browser behavior" after installing the latest security update, Jeremy Dallman, project manager for Internet Explorer security at the company, wrote in a Friday posting to a corporate blog.

Three different problems have been reported: The browser could crash right after starting up; links may come up blank; or multiple windows may open when the browser is initiated, according to the posting.

"After investigating several of these reports, we have traced these issues to a common source," Dallman wrote. The culprit is IE 7, the next version of Microsoft's Web browser, which is in beta testing. The problems occur only if IE 7 is installed on a machine alongside IE 6. That double-IE configuration is not supported by the fix, according to Dallman's note.

When installed next to IE 6, the first beta of IE 7 will add an incorrectly configured key to the Windows Registry the first time it is run, he wrote. The problem with the patch can be solved by deleting the key from the Windows Registry. The Windows Registry is a core part of the operating system that stores PC settings.

The trouble doesn't affect a large number of users because IE 7 has not yet been publicly released. The first test version of the browser, or the "private" beta, has only been available to selected testers. Microsoft has said that it plans to release an updated beta build of IE 7 for Windows XP before the end of March 2006.

Microsoft's patch on Tuesday included a fix for a critical security flaw in Windows that is being exploited in online attacks against IE users and three other bugs. The software maker released the patch in security bulletin MS05-054, as part of its monthly patching cycle.

Dasher Worm Gallops Onto The Net
Dawn Kawamoto

A Windows-targeted worm that drops spying software on vulnerable PCs is spreading across the Internet, security experts have warned.

The Dasher.B worm exploits a flaw in Microsoft Windows Distributed Transaction Coordinator, or MDTC, security companies said Friday. Microsoft announced and patched the hole in the component for transaction processing in October. However, initial glitches with the update may have left some users without a properly implemented fix, Sophos said.

"The worry is that the problems with the patch may have prevented it from being successfully rolled out onto some vulnerable computers," Graham Cluley, senior technology consultant at the security company, said in a statement.

Cluley noted that computers running Windows 2000 and those that have not been updated with MS05-051 face the greatest risk.

Dasher.B is a network worm that has the potential to open a back door on computers with the MSDTC flaw, security experts said. The infected systems are then prompted to connect to a remote computer for instructions. Once connected, it downloads a malicious program that tracks keystrokes.

"This new worm aims (to) install software that tries to infect other vulnerable systems, and that also can be used to log keystrokes and turn the computer into a remotely controlled 'bot' system," James Rendell, a technical product manager at Internet Security Systems, said in a statement.

A third version of the worm emerged Friday, Dasher.C, which almost looks identical to Dasher.B, said Oliver Friedrichs, senior manager at Symantec's Security Response Center.

Three versions of Dasher--B, C and A, which emerged earlier this week--have infected at least 3,000 systems worldwide, Friedrichs said, noting the growth rate of the infection has since leveled off.

Security experts at Internet Security Systems expressed concern about the new worm and warned users to be vigilant.

The United Kingdom's computer emergency response team also issued an advisory Friday on Dasher.B, citing an update from the Australian CERT.

Time Warner to Sell 5% AOL Stake to Google for $1 Billion
Saul Hansell and Richard Siklos

Rebuffing aggressive overtures from Microsoft, Time Warner has agreed to sell a 5 percent stake in America Online to Google for $1 billion in cash as part of an expanded partnership between AOL, once the dominant company on the Internet, and Google, the current online king.

At stake in this battle was leadership in Internet advertising, which is a growing threat to other media companies. The loss is a blow to Microsoft, which had sought AOL as a partner in its advertising venture to undercut Google, its potent rival.

Though Google is only seven years old, its lucrative search advertising business and its technical prowess could enable it to offer consumers free software and services that would directly attack Microsoft's core software business.

While the terms of the proposed five-year deal are largely set, it will not be final until it is ratified Tuesday by the Time Warner board, an executive briefed on the talks said.

Google has agreed to give AOL ads special placement on its site, something it has not done before. Until now, Google prided itself on its auction system for ads, which treated small businesses on an equal footing with its largest customers.

By agreeing to change its business practices for this deal, Google fends off what could have been a significant challenge from a combination of AOL and Microsoft and cements its position as far and away the largest seller of search advertising.

"This is Google's first test as a chess player in a major corporate battle," said John Battelle, the author of "The Search: How Google and its Rivals Rewrote the Rules of Business and Transformed Our Culture."

"They are saying, 'We will take some of our pawns and block the move to our queen by Microsoft,' " he said. "Until now, Google has said, 'We don't think about our competitors. We spend all our time building better products for our users.' "

Negotiations among the companies reached a fevered pitch Thursday night, executives briefed on the talks said, when teams from Google and Microsoft were in separate conference rooms in the Time Warner Center in New York and executives from the media company walked back and forth between them.

At the same time, Time Warner was holding its corporate Christmas party at the Mandarin Oriental Hotel, which is also in the Time Warner Center, overlooking Central Park.

At 9 that evening, Richard D. Parsons, the chief executive of Time Warner, left the party to tell Eric E. Schmidt, Google's chief executive, who was leading its negotiations in another part of the complex, that he would accept Google's recently sweetened offer.

According to one executive, Mr. Parsons called Steven A. Ballmer, Microsoft's chief executive, at 10:30 a.m. Friday to tell him that the deal that Microsoft had so eagerly sought - and had thought it had won - was going to Google.

Microsoft had proposed that it and AOL form a joint venture to sell advertising on their own sites and eventually on other sites. Now Microsoft will compete in the search business as a distant No. 3, behind Yahoo.

Representatives of Time Warner, Google and Microsoft declined to comment about the negotiations.

The deal is a coup for Mr. Parsons because less than a year ago, Wall Street and even people within the company were treating AOL as a declining asset and a drag on Time Warner. The deal is meant to confirm Time Warner's claim that AOL is worth $20 billion, a number many had said was too high.

Yet investors did not immediately see a Google investment as a sign that Time Warner's stock was greatly undervalued, as Mr. Parsons had hoped they would. Time Warner closed yesterday at $18, up 34 cents. Google closed at $430.15, up $20.95. Microsoft ended at $26.90, down 81 cents.

In the last year, Time Warner has pursued a new strategy to replace its declining profits from its Internet access service with advertising revenue from AOL.com and other free Web sites. It has enjoyed enough of a resurgence to attract the courtship of not only Google and Microsoft, but for a time Yahoo, the News Corporation and Comcast.

Time Warner ultimately chose to go with Google because its proposal was simpler than the Microsoft one. Moreover, the lucrative offer promised to help drive more traffic to AOL's Web sites.

Google has been providing Web search and search ads for AOL since 2002. In the new arrangement, Google will offer promotion to AOL in ways it has never done for another company, two executives close to the negotiations said.

If a user searches on Google for a topic for which AOL has content - like information about Madonna - there will be a special section on the bottom right corner of the search results page with links to AOL.com. Technically, AOL will pay for those links, which will be identified as advertising, but Google will give AOL credits to pay for them as part of the deal. They will also carry AOL's logo, the first time Google has agreed to place graphic ads on its search result pages.

Google will also provide technical assistance so AOL can create Web pages that will appear more prominently in the search results list. But this assistance will not change computer formulas that determine the order in which pages are listed in Google's search results.

Google will also make a special effort to incorporate AOL video programming in its expanding video search section and it will feature links to AOL videos on the video search home page. These links will not be marked as advertising.

An executive involved in the talks said Time Warner asked Microsoft to give AOL similar preferred placement in advertising and in its Web index and that Microsoft refused, calling the request unethical.

Mr. Battelle said that while each of Google's accommodations to AOL could be seen as consistent with past practices, "each of them represents a step closer to a slippery slope."

He added, "What they are giving away is the perception in the market place that Google isn't for sale."

An executive involved in the talks said that as recently as two weeks ago, Mr. Parsons told Microsoft executives that he preferred their bid. Still, that executive said, Microsoft had the impression that executives in the AOL unit preferred to work with Google. Yesterday, several AOL executives said that was true. A source close to Mr. Parsons said his only goal was to do the best deal for AOL's future.

But. a turning point, in Microsoft's view, was an article that Stephen M. Case, AOL's co-founder and the architect of the deal with Time Warner, wrote in Sunday's Washington Post calling for the company to be split up, two executives involved with the negotiations who were familiar with Microsoft's views said.

Mr. Case's argument was timed specifically to encourage a Google deal, said one person close to him. Mr. Case's longstanding animosity toward Microsoft played a part, this person said, but his main reasoning was that Google has proved itself far smarter about the Internet than Microsoft. That person said that Mr. Case thought that a deal with Google was the best of all the options other than spinning off AOL. Carl C. Icahn, the financier who, like Mr. Case, has been pressing Time Warner to split up the company, was not mollified by the Google deal.

"I don't want them doing anything that could preclude them from selling or spinning off AOL in the future," Mr. Icahn said. "But the real point is that Parsons shouldn't be running AOL, and I shouldn't be running AOL, either. As Parsons says, 'We're two guys who grew up in Queens 40 years ago.' Neither of us understands the digital world." Then he added, "But I could do infinitely better."

Edward I. Adler, a Time Warner spokesman, said: "We're not going to comment on every little thing Mr. Icahn says. The management team running Time Warner knows AOL's business in great depth and any potential transaction that we may or may not do will be done in the interest of all the shareholders."

While AOL's deal with Google is not as complicated as the proposed joint venture with Microsoft, Google is offering several ways to help AOL enhance its advertising sales business, executives briefed on the negotiations said.

Under the current arrangement, Google sells all the search ads that appear on AOL's sites. This year, Google's revenue from ads on AOL will be roughly $500 million, estimates Jordan Rohan, an analyst with RBC Capital Markets. Of that, Google will pay AOL about $430 million.

Under the new deal, AOL's sales force will also have the ability to sell search advertising that appears only on AOL's sites, even though those ads will compete for placement with those sold by Google. AOL's sales force will also have the right to sell some display advertising that will be placed on the vast network of Web sites for which Google sells ads.

AOL executives are attracted to the idea of offering marketers a full range of Internet advertisements, from splashy ads on the home page of AOL.com to text ads.

Larry Haverty, a fund manager with Gabelli Asset Management, a Time Warner shareholder, said the deal with Google was "very reinforcing to the idea that Parsons is doing what he can to highlight the values."

For Google, he added, "there are two good reasons to do this deal: one, it's chump change; and, two, it really makes life difficult for Microsoft."

Andrew Ross Sorkin contributed reporting for this article.

Google Whistles A New Tune
Elinor Mills

Google on Thursday launched a new service intended to give searchers fast links to song lyrics, musical artists and CD titles on the main search results page.

Google Music will allow a person to type in the name of a band, artist, album or song in the main Google search bar, and results will appear at the top, accompanied by icons of music notes, said Marissa Mayer, vice president of search products and user experience at Google.

Items that can be purchased will have links to merchants for online ordering or downloading, she said. Initial merchant partners include Apple Computer's iTunes service, RealNetworks Rhapsody, eMusic and Amazon.com.

"We aren't building out a music store," Mayer said. "We are getting people to the iTunes store" and others.

Results will also include links to supplemental Google Web pages with more information about the music, including names of tracks on a CD and other CDs a band or artist has released. Google also will provide snippets of reviews from sites on the Web and links to those sites.

"This has been one of the longstanding unfilled user needs," Mayer said. "We saw a search need where we weren't providing users with the highest-quality results that we could."

Columnist Resigns His Post, Admitting Lobbyist Paid Him
Anne E. Kornblut and Philip Shenon

A senior scholar at the Cato Institute, the respected libertarian research organization, has resigned after revelations that he took payments from the lobbyist Jack Abramoff in exchange for writing columns favorable to his clients.

The scholar, Doug Bandow, who wrote a column for the Copley News Service in addition to serving as a Cato fellow, acknowledged to executives at the organization that he had taken money from Mr. Abramoff after he was confronted about the payments by a reporter from BusinessWeek Online.

"He acknowledges he made a lapse in judgment," said Jamie Dettmer, director of communications at Cato. "There's a lot of sadness here."

Copley suspended Mr. Bandow's column.

Efforts to reach Mr. Bandow through the Cato Institute and at home were unsuccessful.

The revelation caps a year of disclosures about partisan payments to seemingly independent writers, including Armstrong Williams, the conservative columnist and television host, who received payments from the federal Education Department at a time when he was promoting the Bush administration's education policies in his columns. The administration has been under mounting pressure to become more transparent in its communications after accounts that it paid for and printed articles in Iraqi periodicals as part of its overseas propaganda effort.

Mr. Bandow did not take government money, but the source of his payments - around $2,000 an article - is no less controversial. His sometime sponsor, Mr. Abramoff, is at the center of a far-reaching criminal corruption investigation involving several members of Congress, with prosecutors examining whether he sought to bribe lawmakers in exchange for legislative help.

A second scholar, Peter Ferrara, of the Institute for Policy Innovation, acknowledged in the same BusinessWeek Online piece that he had also taken money from Mr. Abramoff in exchange for writing certain opinion articles. But Mr. Ferrara did not apologize for doing so. "I do that all the time," Mr. Ferrara was quoted as saying. He did not reply to an e-mail message seeking comment on Friday.

At Cato and similar institutions, adjunct scholars are not always prohibited from accepting outside consulting roles. But at Cato, said Mr. Dettmer, and at the American Enterprise Institute, said a spokeswoman there, rules require scholars to make public all their affiliations, and there is an expectation that scholars will not embarrass the institution.

"Our scholarship is not for sale," Mr. Dettmer said.

Glenda Winders, the vice president and editor of the Copley News Service, said in a statement that the company was immediately suspending Mr. Bandow's column pending further review.

Mr. Abramoff, who built a powerful lobbying business largely through his affluent Indian tribe clients in the late 1990's, paid Mr. Bandow during those years to advance the causes of such clients as the Commonwealth of the Northern Mariana Islands and the Mississippi Band of Choctaw Indians.

In one column in 2001, Mr. Bandow extolled the free-market system that had allowed the Marianas to thrive, saying that fighting terrorism was no excuse for "economic meddling" - the same position that Mr. Abramoff was being paid to advance.

The federal government "should respect the commonwealth's independent policies, which have allowed the islands to rise above the poverty evident elsewhere throughout Micronesia," Mr. Bandow wrote.

In an earlier column, in 1997, Mr. Bandow defended the gambling enterprise of the Choctaws. "There's certainly no evidence that Indian gambling operations harm the local community," he wrote.

Mr. Abramoff, whose work has already been the subject of Senate hearings, is suspected of misleading the tribes about the way he used tens of millions of dollars in payments. He has been indicted in a separate case in Florida, where he is scheduled to stand trial on Jan. 9 on charges of defrauding a lender as he tried to buy a fleet of gambling boats.

Although Mr. Abramoff has not yet been charged in connection with any lobbying case, his money is considered so tainted that on Friday, for a second time this week, a member of the Senate who had received large political contributions from Mr. Abramoff's clients and partners announced that he was returning the money.

The latest announcement came from Senator Conrad Burns, Republican of Montana, who is up for re-election next year and who said he would return about $150,000 in contributions from Mr. Abramoff, his clients and his associates. Earlier in the week, Senator Byron L. Dorgan, Democrat of North Dakota, said he was returning $66,000 in contributions from Mr. Abramoff's partners and Indian tribe clients.

"The contributions given to my political committees by Jack Abramoff and his clients, while legally and fully disclosed, have served to undermine the public's confidence in its government," Mr. Burns said in a statement. "From what I've read about Jack Abramoff and the charges which are pending or about to be brought against him, he massively deceived and betrayed his clients."

Where Have All the Howlers Gone?
A. O. Scott

JUST last summer the air was filled with anxiety about an apparent box-office slump, as journalists and studio executives alike wondered why fewer people seemed to be going to the movies. The most obvious explanation - or at least the one I favored at the time - was that the movies just weren't good enough. But now that the season of list-making and awards-mongering is upon us and the slump talk has quieted down, I find myself preoccupied with a slightly different, not unrelated worry: What if the problem with Hollywood today is that the movies aren't bad enough?

Which is not to say that there aren't enough bad movies. Quite the contrary. There is never a shortage, and there may even be a glut. The number of movies reviewed in The New York Times - those released in New York - grows every year; in 2005 it will approach 600. Given that so much human endeavor is condemned to mediocrity - like it or not, we spend most of our lives in the fat, undistinguished middle of the bell curve - it is hardly surprising that many of these pictures turn out not to be very good. But the very worst films achieve a special distinction, soliciting membership in a kind of negative canon, an empyrean of anti-masterpieces. It is this kind of bad movie - the train wreck, the catastrophe, the utter and absolute artistic disaster - that seems to be in short supply.

And this is very bad news. Disasters and masterpieces, after all, often arise from the same impulses: extravagant ambition, irrational risk, pure chutzpah, a synergistic blend of vanity, vision and self- delusion. The tiniest miscalculation on the part of the artist - or of the audience - can mean the difference between adulation and derision. So in the realm of creative achievement, the worst is not just the opposite of the best, but also its neighbor. This year has produced plenty of candidates for a Bottom 10 (or 30 or 100) list, but I fear that none of the bad movies are truly worthy of being called the worst. And this may be why so few are worthy of being considered for the best.

The thin line separating abject failure from dazzling success is the subject of "The Producers," which happens to be one of the year's exemplary not-bad-enough movies. At one point Max Bialystock and Leo Bloom, in a rare unfrenzied moment, sit in an office strewn with scripts, rifling pages in dogged pursuit of the most atrocious play they can find. Their scheme to make a quick fortune by persuading rich old ladies to bankroll a bomb depends on finding a show that is not merely lousy, but transcendently, world-historically awful. Their carefully planned failure fails: on the opening night of "Springtime for Hitler," the audience's disgust turns to delight as a clumsy exercise in Nazi apologetics mutates into an inspired spoof and the show becomes a hit.

But the kind of ambition that can yield greatness or abomination is not something Hollywood has much interest in encouraging these days. The storied wrecks of the cinematic past - "Showgirls," "Heaven's Gate," "Duel in the Sun" - all exhibit a spark of madness that keeps them alive in memory. One of the few recent pictures that seems at all likely to join their company is Oliver Stone's "Alexander," which is unmistakably the record of its maker's obsession (and to some degree identification) with the film's world- conquering hero. The narrative scheme makes no sense; the motives of the major characters are at once overly emphatic and maddeningly opaque; it is too long, too ornate, too talky - too much. But no one would ever call it mediocre, or accuse Mr. Stone of laziness, indifference or unseemly willingness to compromise.

In partaking of the hubris of its hero and wrecking itself in the process, "Alexander" presents an anomaly. It is much more common to see ambitious films that seem hobbled by caution, their wilder urges awkwardly contained by the demands of convention.

Martin Scorsese's "Gangs of New York," for example, is a project as close to its maker's fanatic heart as "Alexander." It has lots of greatness and grandeur, but what holds this movie back is the intrusion of a movie-star-driven romance into its teeming pageant of violent social change. It is hard to care what happens between the romantic leads, but their story is pushed into the foreground, obscuring and truncating the director's audacious attempt to reanimate the historical sensibilities of John Ford and Luchino Visconti onto the landscape of 19th-century urban America.

It is certainly possible that, had Mr. Scorsese pushed the history into the center of the frame, "Gangs of New York" might have been a botched epic on the order of "Heaven's Gate." But the movie, as released, never embraced the full risk of its outsized and perhaps inchoate intentions. It planted its flag on the middle ground and was met mostly with mild disappointment and qualified admiration.

A similar response - though the disappointment was more intense and the admiration more grudging - greeted Cameron Crowe's "Elizabethtown," perhaps this year's best example of a movie that failed at once to be as wonderful and as awful as it might have been. The early word from critics who saw it at the Venice and Toronto film festivals was that it was an utter botch, exasperating and all but unwatchable. With about 20 minutes trimmed away, the cut that arrived in theaters this fall was messy and underwhelming, with glimmerings of inspiration and long stretches of wheel-spinning. A parable of failure and redemption - in which the hero's professional flameout is answered by the discovery of his extended eccentric family as well as by a new romance - "Elizabethtown" flounders in the middle ground between them, eking an adequate romantic comedy out of a berserk mixture of pathos, farce and social observation.

And adequate is what movies, these days, are above all required to be: tasteful, familiar and safe. The failure of such movies is as uninteresting as their success. "Memoirs of a Geisha," for instance, is quite pretty to look at, but it is also dull and fastidious, and to imagine how it might have been improved - more passion, more madness, a deeper inquiry into the sexual politics of the geisha world - is also to envision the possibility of a kabuki "Showgirls." "Memoirs" never rises to the exalted, operatic level of great melodrama because it carefully avoids the risk of camp. The one truly memorable sequence - in which Gong Li, wild-eyed and disheveled, sets fire to the geisha house - is a symbol of precisely what the film refuses to do, which is to go crazy and make a mess.

And Hollywood, once notorious for excess, has come to loathe messiness. What the French call folies de grandeur - works of megalomaniacal madness, overlong, over budget, over the top - are in danger of extinction. The classic tales of visionary recklessness - Francis Ford Coppola spending months (and millions) in the Philippine jungles making "Apocalypse Now," Warren Beatty and Dustin Hoffman traipsing through the desert in pursuit of Elaine May's "Ishtar," Brian De Palma burning money and daylight on "The Bonfire of the Vanities" - have the ring of ancient legend. They are also regarded, inside and outside of the film industry, as cautionary tales. It is generally agreed that the business is better served by discipline, responsibility and practicality.

But what about the audience? As the grand follies are driven to extinction, so too are the cheesy, campy, guilty pleasures that used to bubble up with some regularity out of the B-picture ooze of cut- rate genre entertainment. Those cherished bad movies - full of jerry-built effects, abominable acting, ludicrous story lines - once flickered with zesty crudity in drive-ins and grind houses across the land. B-picture genres - science fiction and comic-book fantasy in particular, but also kiddie cartoons and horror pictures - now dominate the A-list, commanding the largest budgets and the most attention from the market-research and quality-control departments of the companies that manufacture them. There are exceptions, like the grisly "Saw" slasher franchise and the Rube Goldbergian "Final Destination" teen-horror series. And there are a few genre blockbusters - "The Lord of the Rings" most notably - that rise to the level of greatness. But for the most part, the schlock of the past has evolved into star- driven, heavily publicized, expensive mediocrities that carefully balance novelty and sameness. "Batman Begins," "Fantastic Four," "Chicken Little," "Madagascar," "Flightplan," "Stealth" - the list goes on, encompassing movies that are not great, not terrible and not worth the money that was spent on them.

Sure, adequate is not bad. In the major Hollywood studios, at least, the technical standards are generally high, partly because the budgets are too. Fifty or a hundred million dollars can buy a lot of competence. In a run-of-the-mill studio picture, the story will move along crisply, the soundtrack will be full of pleasant pop songs, the stars will be nice to look at, the lighting will flatter them and a digital broom will have swept away any lingering infelicities. Eva Mendes and Will Smith look terrific in "Hitch," and so does Manhattan, which looks nice in "Prime" as well. The robots in "Robots" are as pleasingly shiny as the chickens in "Chicken Little" are feathery, and precocious viewers will enjoy identifying the movie stars doing the funny voices. You won't see the wires in the action sequences or the boom microphone floating down into the frame, and if you're lucky you might hear a snippet of James Brown doing "I Feel Good." The script will have been worked over by one committee, and another will have kibitzed in the editing room and collated results from the test screenings.

In this climate, good movies are apt to be small movies. More and more, the studios have delegated artistic ambition to their specialty divisions, which turn out modestly budgeted, sophisticated pictures, the best of which bear the stamp of a filmmaker's uncompromised vision. Each year it is those movies - the current crop includes "Brokeback Mountain," "Good Night, and Good Luck," "Capote" and "The Squid and the Whale" - that crowd the year-end lists and pre-Oscar critics' awards.

Good for them. But for us, not so great. There are fewer and fewer movies being made that send us from the theater reeling and rubbing our eyes, wondering "what the heck was that?" or demanding a refund. For precisely that reason, we are less and less likely to emerge breathless and dazzled, eager to go back for more and unable to forget what we just saw.

Is Mark Cuban Missing the Big Picture?
Randall Stross

MARK CUBAN is known to many in the sports world as the madcap-billionaire owner of the Dallas Mavericks, the one who relishes every opportunity to defy propriety. Less well known is Mr. Cuban's day job as co-owner, with Todd R. Wagner, of 2929 Entertainment, a holding company encompassing a movie production and distribution complex that is moving toward all-digital delivery.

On his blog, Mr. Cuban has compared the differences between the sports world, which requires consistent repetition of outstanding performance, and the business world, which does not. He wrote: "In business, to be a success, you only have to be right once. One single solitary time and you are set for life." Mr. Cuban is indeed set, his pockets bulging with party-like-it's-1999 money.

His digital media business rests upon one more foundational concept, which Mr. Cuban transferred from Dallas to Hollywood: that fondness for defying propriety. At a conference for digital cinema planners held in September in Montreal, he said gleefully that he had been reading in the Hollywood trades that he and his business had been irritating a lot of people - "and we like that."

Mr. Cuban seems so attached to the pleasures of provoking others, however, that he is unwilling to acknowledge inconvenient trends that may upend some of his plans. His rationale for making hugely expensive investments in Landmark Theaters, the art-house chain owned by 2929 Entertainment, seems dangerously ungrounded in reality.

As a self-made tech billionaire, whose net worth is estimated by Forbes at around $1.8 billion, Mr. Cuban enjoys the presumption of possessing impeccable credentials as a business strategist and a technology futurist. Does it take anything away from those 1.8 billion reasons to listen to Mr. Cuban, the digital oracle, to note that the great fortunes of him and Mr. Wagner were acquired in a brief, anomalous moment in business history? Their start-up, Broadcast.com, was born in 1995 and then sold in 1999 to Yahoo for $5 billion at the tip-top of the bubble, an act of exquisite timing.

The Internet was very, very good to Mr. Cuban, so it's perfectly understandable why his subsequent business ideas circle around digital themes. Upgrading theater projectors, which use film technology that has not changed much since Thomas Edison's time, to digital technology would seem perfectly matched to Mr. Cuban's interests. Digital projection is coming, not only to Landmark Theaters but to the larger chains, too. It is Mr. Cuban, however, who was so eager to have his theater chain credited as the first to adopt a costly new line of Sony projectors with the highest resolution (4096 x 2160 pixel, or 4K) before they were even complete. Actual installation of the first machines, each of which costs about $100,000, has been repeatedly delayed while Sony works on debugging.

People in the theater exhibition industry know what many outside it may not: that the transition from film to digital will not improve the visual experience for theater customers. Nothing yet invented can match the richness of film. When digital projection arrives, the best selling point that theater owners can offer may be, "Don't worry about it; you probably won't notice." The principal reason that the owners will convert is that the movie studios wish to save the considerable expense of manufacturing and distributing film. Digital projection "won't increase our attendance," said Kurt Hall last March, when he was chief executive of the Regal Entertainment Group, the largest exhibitor in the country.

Regal and other exhibitors, though not Mr. Cuban's Landmark Theaters, put off their own orders for digital systems until the studios provided the bulk of the financing. In just the past few weeks, a string of announcements from DreamWorks, Sony Pictures, Universal Pictures, Warner Brothers and 20th Century Fox have finally provided the financial arrangements, using third-party equipment distributors, that exhibitors were waiting for. Next year the industry will move from the testing phase to permanent conversion to digital projection. It will take years before all 37,000 auditoriums in the United States are upgraded.

It may not take so long, however, if the theater business keeps shrinking. Theater attendance in 2005 is down 6 to 7 percent from 2004, after declines the preceding two years. John Fithian, president of the National Association of Theatre Owners, contends that the downturn is an inconsequential blip in a cyclical business. He reassured his members that the "slump reflects the nature of the recent product supply, rather than portends some structural problem with the industry."

Similar reassurances were provided to theater owners in the 1950's, said Robert Sklar, a historian and professor of cinema studies at New York University. During that decade, average theater attendance dropped about two-thirds from the peak in 1948; today, on a per capita basis, we go to the movies only one-sixth as often as we did then. Many developments prompted this change, but the most important was the proliferation of television; the big screen in the theater could not compete against a tiny screen at home. "In 1949, nine inches was a monster screen," Mr. Sklar said. "It was a thrill to have a screen in your home -and it has never stopped being a thrill."

In the long historical view, the movie theater was a makeshift response to immature technology not quite ready for the home, the first-choice place to enjoy entertainment. Now, however, advances in digital technology offer in the comfort of one's own family room a visual and aural experience that approaches that of the theater. The transition to digital in the home, unlike that in commercial theaters, will result in a huge difference: the incumbent technology isn't very-high-resolution film but low-resolution analog television.

Popular demand for wide-screen HDTV sets has reached the point that every retailer wants a piece of the action - even Home Depot sells them. When holiday sales are tallied and as theater attendance continues to sink, the theater operators a year hence may have a hard time accepting today's official party line promulgated by Mr. Fithian that "the biggest challenge is getting good movies, not competition from the home."

Mr. Cuban is similarly sanguine about the business. Last week in an e-mail exchange, he argued that the theater business had only to extol "the virtues of enjoying a movie in a theater with fellow movie fans" - as if sitting quietly in the dark with a few dozen others is no less gregarious an activity as cheering on the Mavericks with 20,000 boisterous neighbors.

The one remaining attribute of theater exhibition that the home cannot match is temporary exclusive access to new releases. The window of exclusivity has become ever shorter in the past year, as studios begin collecting DVD revenue as early as they dare. On this issue, Mr. Cuban speaks not as a theater operator or a studio honcho, but as an anarchist: blow up the rules and release to theaters and to DVD's at the same time. This offers the attraction of a single marketing push, reducing studio costs. But the theaters would suffer dearly. If universal release became standard industry practice, Mr. Fithian said, it would most likely mean the end of theaters.

MR. CUBAN has not had all the necessary pieces of his complex in place long enough to try out his plan. But when discussing the details at the September conference, he tacitly conceded that his studio would have to devise new incentives so that buyers of DVD's would not cannibalize theater attendance. He floated the idea of a rather weak sweetener with every purchase of theater tickets: a soundtrack available for download that was withheld from the DVD.

The problem that Mr. Cuban faces is that 2929 Entertainment is well positioned for the shift to digital only if he leaves out his own Landmark Theaters. His holding company owns two high-def television channels, HDNet and HDNet Movies, but the gains they make in numbers of subscribers will make it that more difficult for Landmark to convince happy HDTV fans to leave home.

Theater operators need not abandon all hope. Mr. Sklar, the historian, offered this prediction: "Teenagers' need to get out of the house will keep theaters alive." It doesn't really matter, he added, what the movie is.

Before You Buy a Ticket, Why Not Buy the DVD?
Laura M. Holson

At the Dubai International Film Festival last week, Morgan Freeman, the Oscar-winning actor and star of last year's "Million Dollar Baby," took on his most challenging role yet: movie entrepreneur.

Dubai was one of several stops on a Middle East tour for Mr. Freeman, who was meeting with local moviemakers, hoping to find independent films to distribute through his Internet venture, ClickStar. Mr. Freeman and Intel founded ClickStar this summer with an eye toward offering downloads of a movie at the same time as its theatrical release.

Mr. Freeman said in a phone interview Wednesday from Dubai that the industry practice of showing feature films in theaters first, then selling them later on DVD, was outdated. With new advances in digital filmmaking, he predicted, consumers will demand better access to movies.

"We want to give people what they want, when they want it," said Mr. Freeman. "We are following the wave."

Mr. Freeman is not the only entrepreneur riding the digital technology surf. In the last several months, a handful of new ventures have been formed to help filmmakers find their audience - online, on DVD and at the movie theater.

Among them is IndieFlix, based in Seattle, which was introduced by two independent filmmakers in October. For $9.95 a disc, the company will burn a feature or documentary film onto a DVD and ship it to a customer who has ordered it online. Another outfit, 2929 Entertainment, has teamed up with the Oscar-winning director Steven Soderbergh to offer the forthcoming movie "Bubble" simultaneously in theaters, on DVD and on cable television.

But how big is the market? Even those working on distributing movies in new ways cannot predict what will capture the public's interest. As many entrepreneurs did in the early days of the 1990's dot-com craze, they are experimenting with untested business models. Hollywood has a long-established way of promoting its movies, mainly through blockbuster releases. Until that changes, entrepreneurs will probably continue to find it challenging to get people to watch their films and to earn enough money to make their ventures profitable.

"The idea that a lot of things can get out without marketing clout is not there," said Bob Berney, a Hollywood veteran and president of Picturehouse, a theatrical distribution company. "I think there are complications for the next several years, as we are still in a theatrically driven mode."

Still, many in Hollywood smell opportunity, particularly since Steven P. Jobs, the chief executive of Apple and an industry outsider, announced he would offer some television shows and movies on the video iPod. "I've seen more movement in the last three months than the previous five years," said Todd Wagner, who along with his business partner, Mark Cuban, will release Mr. Soderbergh's "Bubble" in late January. "I think people are now saying they can't avoid this."

Smaller movies with limited appeal could have the most to gain from alternative distribution, either through movie downloads or bypassing studios altogether and selling DVD's directly to consumers. Such opportunities are enhanced in a digital world, which is not defined by international borders or movie-release patterns.

"There is a middle class of movies that have a niche audience," said Lori McCreary, Mr. Freeman's business partner. "If you put those audiences together throughout the world, it becomes a big audience."

Gian-Carlo Scandiuzzi, a co-founder of IndieFlix, said that 10 years ago, most independent filmmakers sought distribution deals with studios they hoped would market their films smartly. "That has changed," said Mr. Scandiuzzi. "Film studios are less likely to buy little-known movies, so the film's makers have to ask, 'How can I make money?' "

Mr. Scandiuzzi and his business partner, Scilla Andreen, started IndieFlix to give directors a place to sell smaller films that major studios would not choose to distribute. Directors submit their films to IndieFlix, which posts descriptions of them on a Web site. When customers pick a movie to buy, IndieFlix burns it onto a DVD and ships it to them. Each film's success depends largely on word of mouth.

Since mid-October, when IndieFlix opened for business, the service has sold about 100 copies of movies a day (about 60 are currently for sale on the site) and the average person buys two or three, Ms. Andreen said. By the end of the year, she said, IndieFlix hopes to offer about 160 films. But success may not be easy to measure: IndieFlix does not track filmmakers' budgets to see if movies make a profit.

"We're something of a petri dish, and want to see what comes of this venture," said Ms. Andreen.

Hollywood executives say that movies, particularly independent films, need smart marketing plans to break out of the clutter. At the Sundance Film Festival this year, 2,600 feature films were submitted for review, and only 120 were accepted.

Mr. Berney said that most filmmakers still needed a relationship with a studio to succeed. When he was involved in the release of "Happiness" in 1998, he said, "I did it out of my house with a telephone." But he conceded he would not have been able to do so if he had not had longstanding relationships in Hollywood. "I had a lot of connections to the film business," he said.

Peter Broderick, president of Paradigm Consulting, an independent film consultant based in Santa Monica, Calif., advises moviemakers on how to distribute their films in theaters and online. In 2003, he attended the Cannes Film Festival, where he helped sell "Faster," an independent documentary film about motorcycle racing narrated by Ewan McGregor. It had a limited release in theaters.

The makers of "Faster" had the right to sell the DVD themselves, and the film got its biggest boost on its Web site, Fastermovie.com. In particular, said Mr. Broderick, "They had a killer trailer."

Mr. Broderick said the film sold 5,000 DVD's the first two weeks it was for sale online, and an additional 8,000 DVD's in subsequent months. He estimated that by selling the DVD for about $23, the filmmakers earned about $16 to $18 per disc, compared with the $2 they would have made under a standard studio contract.

Later, when the filmmakers sold the DVD in retail stores, they added a bonus documentary and more footage. And as an incentive for fans who already owned the DVD, they offered a free T-shirt with the purchase of a second. Mr. Broderick said the film sold about 50,000 DVD's in retail stores and an additional 7,000 of the extended version on the Web site.

But most important, filmmakers get the names and e-mail addresses of fans, and can use that information to market their other movies, Mr. Broderick said. "The filmmakers have a sense of their audience that the studios don't," he said.

While most do-it-yourself distributors focus on online marketing or DVD sales, 2929 Entertainment works more broadly. The company has several entities: HDNet Films, which finances smaller-budget movies; Magnolia Pictures, a distributor; Landmark Theaters; and HDNet and HDNet Movies for cable broadcast.

Mr. Wagner, Mr. Cuban and Mr. Soderbergh plan to release "Bubble" simultaneously in their theaters, on DVD and on cable television. What the three men are proposing is a radical - and, to theater owners and existing distributors, not particularly welcome - model of how movies could be distributed one day. Theater owners complained several months ago when some media executives said the window between a movie's theatrical and DVD release would shrink. And video rental stores, which already fear going out of business if their renting customers become retail buyers, worry about an acceleration of that trend.

None of that is lost on Mr. Wagner, who conceded that a same-day multifaceted release of "Bubble" would not be possible if his group did not own both theaters and a cable channel. "It's not by coincidence," said Mr. Wagner. "I know if I went to another theater and said, 'Let's sell the movie at the same time on DVD and in the theater,' they would say 'no.'

"I don't think there is a right answer yet. We are experimenting. If we are just dead wrong, we are not going to do it anymore."

Slacker Dot-Com
Craig Modderno

Kevin Smith wrote and directed the slacker hits "Clerks," "Dogma" and "Chasing Amy," but lately it is his other life - maintaining six Web sites that he describes as "devoted to my fans and my films" - that seems to consume him.

"One site deals with comic books, another gives new filmmakers a chance to communicate and another offers merchandise from my movies," he said. "On each site I've got news about every major actor I've worked with; reviews of my movies that are written by fans, which pull no punches, and notices about special events."

Viewaskew.com, the site of his production company, made its debut in June 1996 and has the highest profile of Mr. Smith's Web enterprises. But together, the six sites receive more than 100,000 hits a day and have nine employees, he said. Mr. Smith won't reveal how much money the sites generate. "Let's just say I make enough money to take my wife and daughter on a nice vacation, which I did last year," he said. "And I still spent two hours each day on the Web sites, vacation or not, because the sites can pay off in other ways."

For example, when his film "Jersey Girl" came out - amid a flurry of publicity about its stars Ben Affleck and Jennifer Lopez - Mr. Smith recalled, "I went on my sites, offered film clips, interviews with my actors, and talked to the fans directly about the film." That, he feels, helped the movie at the box office and in DVD sales.

Mr. Smith, 35, is working on "Clerks 2: The Passion of the Clerks," tentatively scheduled for release in the spring. "All I can say about 'Clerks 2' is that it deals with what happens to this angry young man when he becomes 35 and is no longer relevant to society since he's not in the age group targeted by corporations anymore."

That message, Mr. Smith said, will resonate with his most dedicated audiences. "My Web sites tell me my fan base is overeducated, underemployed slacker college kids like my two 'Clerks' characters and generally myself," he said. "It's as if I'm the local garage band that became famous and then kept the fans they had when they were unknown and now they've become close friends and want to make more and better music together."

Changing habits

Lutes + Synthesizers +Rock Beats = America's Most Popular Christmas Music?
Jody Rosen

The Kansas Coliseum is a 12,200-seat hockey arena that rises above a wind-lashed plain 11 miles north of Wichita. On a brisk evening a few days before Thanksgiving, 36 snowmen, gingerbread men and elves - local theater students, concealed beneath sports mascot-style costumes - were standing outside, greeting a throng of arriving concertgoers. The crowd had come to see the instrumental ensemble Mannheim Steamroller, but the music onstage was just part of what the band likes to call "the complete Mannheim Christmas experience," a full sensory immersion in holiday pomp. Carolers roamed the arena corridors. Santa-hat-wearing ushers distributed programs. Balconies were festooned with holly. The pièce de résistance, located at the rear of the arena floor, was the 2,000-square-foot "Christmas village" diorama: a snow-dusted Old World hamlet inhabited by glassy-eyed dolls and encircled by a chugging miniature train. About a half-hour before the show started, four men dressed as toy soldiers marched out in lock step to stand sentry around the diorama's perimeter, a well-timed bit of theater, since several kids looked ready to break free from their parents' grasp and stampede across the thing, crushing houses and villagers underfoot.

Just after 7:30 p.m., Mannheim Steamroller - a six-piece band backed by a 22-member orchestra - hit the stage. In the middle, sitting high atop a riser, was Chip Davis, the group's 58-year-old drummer, composer, producer and mastermind. For more than two decades, Davis has made his living trading on the American passion for Christmas songs. He looks the part. A stout, ruddy man with tousled reddish-brown hair and a close-cropped beard, he has an air of jolly St. Nick about him - Santa Claus as a Midwestern Regular Joe.

But Davis is not quite an Everyman. He is one of the most successful recording artists in the history of American music. Mannheim Steamroller has sold more than 27 million albums, more than Frank Sinatra, the Beach Boys, Stevie Wonder, R.E.M. or Eminem, according to the Recording Industry Association of America. Davis has racked up these astonishing sales figures operating out of his home base in Omaha, Neb., releasing all his records on his own label, American Gramaphone. "I'm not in a major media center where a lot of people are looking over my shoulder trying to figure out how I've sold so many records," Davis told me. "I'm harder to knock off, 'cause nobody knows what I'm up to. I'm out in the sticks, laying in the weeds."

What he has done out in the sticks is corner a market. "Chip Davis owns Christmas," says Sean Compton, programming vice president of Clear Channel Communications, which owns more than 1,200 commercial radio stations. "He is the Christmas king." Years ago, Mannheim Steamroller surpassed Elvis Presley as the top-selling Christmas artist of all time; even those who've never heard of Mannheim Steamroller have most likely heard its music. This year, more than 160 radio stations around the country have switched to an all-Christmas music format during the holiday season, some beginning as early as the first week of November. Mannheim Steamroller dominates those radio playlists, with as many as 15 songs in regular rotation on some stations. If you've wandered down a department-store aisle in the last few weeks, Davis's versions of "Silent Night" or "Deck the Halls" have probably drifted into earshot. The music is strange: a hodgepodge of rock rhythms, blipping synthesizers, Renaissance instrumentation and orchestral extravagance - a big, bright and, even by Christmas standards, fearlessly schlocky sound that Davis has called "18th-century classical rock." In Davis's reworked carols, the showy time-signature changes and keyboard passages of 70's progressive rock rub up against lutes, cornemuses and other 15th-century instruments; classical piano filigrees and gusty Muzak strings rise over a thudding backbeat.

For years, critics have savaged this music, dismissing Mannheim Steamroller as "the Lawrence Welk of New Age." "I've read some of the headlines, things like 'Commercial Musical Stew,"' Davis says. "All I know is that 15,000 people came to my concert, and I saw them stand up. And they weren't standing up to leave."

The headquarters of Chip Davis's musical empire occupy three sprawling low-slung warehouses 10 miles north of downtown Omaha. Davis moved his business here in 1983,
and American Gramaphone, now a 50-employee operation, retains a folksy feel. Many of Davis's top staff members are old friends; Brian Ackley, the company's chief operating officer, is Davis's former recording engineer, and he still occasionally breaks from his executive duties to do a session behind the mixing board. When I arrived, on an unseasonably sultry morning in October, I was greeted by Dan Wieberg, the director of promotion. "Welcome to the only record label in the United States that has suffered turkey damage," he said, gesturing to the parking lot where a flock of wild turkeys once attacked several company cars.

A few minutes later, Davis appeared. He was dressed in black tennis shorts and a matching black polo shirt, emblazoned with the Mannheim Steamroller logo. "It's actually adapted from the crest of the city of Mannheim," he said. "I got permission from the Burgermeister himself." (The name Mannheim Steamroller is derived from a German term for crescendo.) Davis has a gentle, soft-spoken manner - a kind of amiable post-hippie vibe - but when talk turns to his business, he grows animated. Davis has reached beyond traditional music retailers, selling his records in a variety of oddball outlets: greeting-card shops, truck stops and sporting-goods stores, and on "clip strips" in the candy aisles of drugstores. This Christmas, a new Mannheim Steamroller holiday compilation, "Sweet Memories," is on sale exclusively at Lowe's, the home-improvement chain.

I asked Davis to explain the theory behind his marketing schemes, and he told me a story about the release of "American Spirit," a collection of patriotic songs "done Mannheim style." Just before Memorial Day in 2002, the CD went on sale in several stores at a busy Omaha intersection, including a Super Target and a Baker's supermarket. The Target store, where the discs were discounted to $12.98, sold just a dozen copies, but the supermarket, which priced them at a full $15.99, "blew through 60 pieces." Why? "We put the CD's next to the hot-dog buns, where everyone was going for their holiday barbecues," he told me. "We weren't sitting in the music department with some big display saying, 'Mannheim CD's.' We have a slogan around here: we try to put our music in the path of what people do everyday."

In recent years, Davis has been doing brisk business with the American Gramaphone "clothing and lifestyle" mail-order catalog. Davis led me to a vast storage room, where metal supply shelving was stacked with the group's four Christmas studio albums and a couple of dozen other titles - along with products for sale in the catalog. There were the Mannheim Steamroller Bath and Body Basket, a collection of scented candles and beauty items; hundreds of bottles of Bry, a spray-on barbecue sauce that Davis invented in his kitchen; and packages of Mannheim Steamroller Cinnamon Hot Chocolate, Davis's most popular food product. There were a lot of pricey Christmas knickknacks, from "20-Year Collectors' Edition" Mannheim Steamroller Christmas ornaments ($49.98) to wind-up "Gigantic Musical Christmas" snow globes ($79.98). "I feel honored and humbled that millions of people have involved me in their families at Christmastime, involved me in their thought processes," Davis said. "I'm just a small-town Midwestern musician."

Chip Davis was born Louis Davis in 1947, in Hamler, Ohio, about 50 miles southwest of Toledo. The Davises were a musical family - both his mother and father taught music
- and as a child, Chip studied bassoon, sang in choirs and dreamed of becoming a composer. When he was 11, Davis was given the chance to join the Vienna Boys' Choir (his parents wouldn't let him go); by age 16, he was filling in occasionally on bassoon in the Toledo Symphony. He graduated from the University of Michigan in 1969 with a degree in music education but soon joined the Norman Luboff Choir, singing tenor and soaking up Luboff's eclectic easy-listening repertory. "When I was in college, I was so straight classical," Davis told me. "Norman got my mind open. We sang everything: pop songs, cowboy songs - and Vivaldi."

In the early 1970's, Davis landed in Omaha, where he took a gig writing commercial jingles for the Bozell & Jacobs advertising agency. In one of his first jobs, Davis was asked by the firm's creative director, Bill Fries, to write a country-flavored tune for a Sioux City bakery. The TV and radio spots revolved around the exploits of a fictional trucker named C.W. McCall and his waitress girlfriend, Mavis, with lyrics written and talk-sung by Fries in a twangy basso profundo style. The commercials were a sensation, and Davis and Fries decided to record a single, which quickly became a regional hit.

Word spread to Nashville, and soon the ad executive and the jingle writer found themselves signed to MGM Records under the moniker C.W. McCall. By 1975, C.W. McCall was churning out country novelty hits that set Fries's drawling monologues to Davis's big, goofy arrangements - synthesizers, string fanfares, chirpy background chorales. That December, they hit pay dirt with the trucker anthem "Convoy," which topped the Billboard pop charts, spurred the late-70's C.B. craze and inspired the Sam Peckinpah-Kris Kristofferson movie of the same name.

In his spare time, Davis was busy fiddling with Moog synthesizers and Baroque sonatas, refining a peculiar musical mix. "I was taking classical-sounding pieces of mine that were originals and eclecticizing them, making them sound more popular," Davis told me. He is a recording-studio savant, and he cut a great-sounding demo, which he began shopping to record labels. "I had record-company presidents tell me: 'I love this music, but I don't know where to put it in retail. But I'll take 50 copies, because I have a bunch of friends who would like to hear this."' Spurned by the major labels, Davis founded American Gramaphone and took Mannheim Steamroller as his band's name. He pressed an album, "Fresh Aire," and got it placed as a demonstration disc in hi-fi stores, where it developed a cult following among audiophiles wowed by the record's stellar sound and production values.

Today Davis is convinced that these efforts to woo hi-fi nerds led to his big breakthrough, "Mannheim Steamroller Christmas," the 1984 album that rocketed the group's sales into the stratosphere. "When the Christmas record came along, that was, like, a cool new deal for the audiophiles," he said. "It was something they could play at Christmastime, and maybe they were impressing their girlfriend. Who they end up marrying. Well, then they had kids. And by now there are two or three more of those Christmas records out there. So within their family it's starting to become a tradition. And now the audience demographics start switching, because Mom is the primary record buyer at Christmastime. So now my predominately male audience shifted to a family audience."

Davis can talk shop for hours, riffing in business-school patois about marketing strategies and "brand extensions." But he has a far more eccentric side, which came into focus when I visited his home just outside Omaha. The rambling house that he shares with his wife and three children looks out over 100 acres of woods and farmland. On a golf- cart tour of his property, Davis showed me various wooded spots that he'd given Dungeons & Dragons-like names: the Path of the Animals, Elf Alley, One Faerie Way. Back at the house, he took me to the "University of Downstairs," the state-of-the-art basement recording studio where he composes and records much of his music. The place was cluttered with mixing boards, keyboards and sequencers; "stars" twinkled in constellations that Davis had installed in his ceiling. He dragged out his theremin, the early-20th- century electronic instrument made famous by the Beach Boys' "Good Vibrations." In no time, Davis had dialed up a hammering electronic beat on one of his computers - fast and tough enough to pass muster in a techno club - and began improvising swooping theremin lines over it.

That evening, Davis excitedly outlined one ambitious scheme after another. He discussed his goal of exposing a new generation of children to classical music through his "deranged" versions of Bach, Grieg and Wagner and talked in hushed, earnest tones about his Native American artifacts, including a headdress that he dons occasionally to get his creative juices flowing. "Whether the Indian headdresses and the rattles are really communicating with some spirit, or just opening my mind, I'm not sure," he said. "It's the same with my ancient Egyptian artifacts."

Davis has long had a taste for the mystical. His eight albums in the "Fresh Aire" series include meditations on space travel, Greek mythology, the power of the number 7 and, in the series finale, "Fresh Aire 8," a consideration of the "8 Topics of Infinity." His current passion involves "psychoacoustics" and healing: recording nature sounds and packaging them with music into something called the Ambient Therapy System, a device Davis invented, which is currently being tested in a local Omaha hospital and at the Mayo Clinic. You can hear both Davises - the hardheaded entrepreneur and the New Age shaman - when he talks about the project. "The A.T.S. is such a worthy cause. It has huge business potential. And huge upside healing potential."

When Mannheim Steamroller began doing Christmas tours in the mid-1980's, they had a virtual monopoly on their brand of holiday entertainment. But Davis's success hasn't
gone unnoticed, or unimitated. This year, two different touring versions of Trans-Siberian Orchestra, a kind of Christmas rock opera act, are barnstorming arenas. Davis was dismissive when I asked how he felt about the competition - "Have you ever had a fly land on your arm?" he replied - but his head of marketing and promotion for the tour, Anne Schlachter, was a little concerned. "Ticket sales in Philadelphia are looking a bit soft," she said, standing near the Christmas village before the Wichita show. "There's just so much more Christmas entertainment these days. TSO is touring, of course. [Andrea] Bocelli is out, Clay Aiken is out with a Christmas show. The Rockettes have franchised."

Still, Mannheim Steamroller can turn out its audience. From where I was sitting at the Wichita show, it looked as if every seat in the house was full - lots of middle-aged couples, some younger parents with kids and plenty of grandparents. They roared when the group kicked into the opening song, "Celebration," a Davis original. The members of Mannheim Steamroller have played together for years, and the band is tight. They have to be: the songs are synchronized with elaborate visuals projected above the stage on giant Christmas-tree-shaped movie screens, and with a variety of other effects, like the miniature blizzard that is unleashed on the audience by snowmaking machines installed in the rafters. It is here, smack in the center of the heartland, that you would expect to find the archetypal Mannheim Steamroller audience. The group's association with Rush Limbaugh, who has championed Mannheim on his radio show, has reinforced the band's reputation as a purely red-state phenomenon. But Mannheim has sold CD's all over the country, and the current tour includes a stop at the 19,000-seat TD Banknorth Garden, in that bluest of cities, Boston.

In fact, what's most striking about a Mannheim Steamroller show is its strangeness, a mix of seasonal iconography and musical pastiche so loopy that you can almost see how, as Davis boasted to me, the group was once regarded as a "weird art act." Images flash past on the overhead movie screens: horse-drawn sleighs plying snowy hillsides, Mannheim performing at a White House tree-lighting ceremony, a soft-focus dramatization of the Magi's desert crossing, with a cameo by Davis, swaddled in robes. One minute the band is playing a mild funk-rock "Good King Wenceslas," with Davis smacking away at his high-hat and delivering a spooky vocoder-like vocal coda, the next they've broken out the krummhorn and lute and are doing an early-music medley at the front of the stage, while a filmed re-enactment of a 15th-century banquet bacchanal plays on the screens above. At such moments, it seems astonishing that Mannheim Steamroller has become a kind of latter-day Bing Crosby, whose music represents for millions the home-and-hearth comforts and traditions of the holiday.

But then Christmas has always been a bizarre ad hoc creation. It took 1,500 years of costume and name changes to turn Nicholas, a fourth-century monk from Myra in Asia Minor who was revered for his charitable good works, into Clement Clarke Moore's "right jolly old elf," who pilots a reindeer-drawn sleigh, fills stockings and ascends chimneys with a nod. The listener for whom Mannheim Steamroller's synth-pop "Deck the Halls" evokes the essence of the Yule may just be on to something.

On the way out of the coliseum, I passed a merchandise stand, where fans were loading up on shirts, CD's, DVD's and other Mannheim goodies. The line of concertgoers slowed near one of the doors, and I found myself standing next to a middle-aged woman, who was cracking open her purchase, the "Mannheim for All Seasons" box set, a four-CD package that includes the album "Christmas Extraordinaire," along with the group's Halloween, July 4 and Valentine's Day discs. Davis would have been pleased. "I joke that it only took me 25 years to discover that there were other holidays," he had told me. "But now I'm really getting into them."

Unlikely Trendsetter Made Earphones A Way Of Life
Larry Rohter

In the late 1960s, Andreas Pavel and his friends gathered regularly at his house here to listen to records, from Bach to Janis Joplin, and talk politics and philosophy. In their flights of fancy, they wondered why it should not be possible to take their music with them wherever they went.

Inspired by those discussions, Pavel invented the device known today as the Walkman. But it took more than 25 years of battling the Sony Corporation and others in courts and patent offices around the world before he finally won the right to say it: Andreas Pavel invented the portable personal stereo player.

"I filed my first patent a complete innocent, thinking it would be a simple matter, 12 months or so, to establish my ownership and begin production," he said at the house where he first conceived of the device. "I never imagined that it would end up consuming so much time and taking me away from my real interests in life."

In person, Pavel seems an unlikely protagonist in such an epic struggle. He is an intellectual with a gentle, enthusiastic, earnest demeanor, more interested in ideas and the arts than in commerce, cosmopolitan by nature and upbringing.

Born in Germany, Pavel came to Brazil at age 6, when his father was recruited to work for the Matarazzo industrial group, at the time the most important one here. His mother, Ninca Bordano, an artist, had a house built for the family with a studio for her and an open-air salon with high-end audio equipment, meant for literary and musical gatherings.

Except for a period in the mid-1960s when he studied philosophy at a German university, Pavel, now 59, spent his childhood and early adulthood here in South America's largest city, "to my great advantage," he said. It was a time of creative and intellectual ferment, culminating in the Tropicalist movement, and he was delighted to be part of it.

When TV Cultura, a Brazilian station, was licensed to go on the air, Pavel was hired to be its director of educational programming. After he was forced to leave because of what he says was political pressure, he edited a "Great Thinkers" book series for Brazil's leading publishing house in another effort to "counterbalance the censorship and lack of information" then prevailing.

In the end, what drove Pavel back to Europe was his discontent with the military dictatorship then in power in Brazil. By that time, though, he had already invented the device he initially called the stereobelt, which he saw more as a means to "add a soundtrack to real life" than an item to be mass marketed.

"Oh, it was purely aesthetic," he said when asked his motivation in creating a portable personal stereo player. "It took years to discover that I had made a discovery and that I could file a patent."

Pavel still remembers when and where he was the first time he tested his invention and which piece of music he chose for his experiment.

It was February 1972, he was in Switzerland with his girlfriend, and the cassette they heard playing on their headphones was "Push Push," a collaboration between the jazz flutist Herbie Mann and the blues-rock guitarist Duane Allman.

"I was in the woods in St. Moritz, in the mountains," he recalled. "The snow was falling down. I pressed the button, and suddenly we were floating. It was an incredible feeling, to realize that I now had the means to multiply the aesthetic potential of any situation."

Over the next few years, he took his invention to one audio company after another--Grundig, Philips, Yamaha and ITT among them--to see if there was interest in manufacturing his device. But everywhere he went, he said, he met with rejection or ridicule.

"They all said they didn't think people would be so crazy as to run around with headphones, that this is just a gadget, a useless gadget of a crazy nut," he said.

In New York, where he moved in 1974, and then in Milan, where he relocated in 1976, "people would look at me sometimes on a bus, and you could see they were asking themselves, why is this crazy man running around with headphones?"

Ignoring the doors slammed in his face, Pavel filed a patent in March 1977 in Milan. Over the next year and a half, he took the same step in the United States, Germany, England and Japan.

Sony started selling the Walkman in 1979, and in 1980 began negotiating with Pavel, who was seeking a royalty fee. The company agreed in 1986 to a limited fee arrangement covering sales only in Germany, and then for only a few models.

So in 1989 he began new proceedings, this time in British courts, that dragged on and on, eating up his limited financial resources.

At one point, Pavel said, he owed his lawyer hundreds of thousands of dollars and was being followed by private detectives and countersued by Sony. "They had frozen all my assets, I couldn't use checks or credit cards," and the outlook for him was grim.

In 1996, the case was dismissed, leaving Pavel with more than $3 million in court costs to pay.

But he persisted, warning Sony that he would file new suits in every country where he had patented his invention, and in 2003, after another round of negotiations, the company agreed to settle out of court.

Pavel declined to say how much Sony was obliged to pay him, citing a confidentiality clause. But European press accounts said avel had received a cash settlement for damages in the low eight figures and was now also receiving royalties on some Walkman sales.

These days, Pavel divides his time between Italy and Brazil, and once again considers himself primarily a philosopher. But he is also using some of his money to develop an invention he calls a dreamkit, which he describes as a "hand-held, personal, multimedia, sense-extension device," and to indulge his unflagging interest in music.

Recently, he has been promoting the career of Altamiro Carrilho, a flutist whom he regards as the greatest living Brazilian musician. He is also financing a project that he describes as the complete discography of every record ever released in Brazil.

Some of his friends have suggested he might have a case against the manufacturers of MP3 players, reasoning that those devices are a direct descendant of the Walkman. Pavel said that while he saw a kinship, he was not eager to take on another long legal battle.

"I have known other inventors in similar predicaments and most of them become that story, which is the most tragic, sad and melancholic thing that can happen," he said. "Somebody becomes a lawsuit, he loses all interest in other things and deals only with the lawsuit. Nobody ever said I was obsessed. I kept my other interests alive, in philosophy and music and literature."

"I didn't have time to pursue them, but now I have reconquered my time," he continued. "So, no, I'm not interested anymore in patents or legal fights or anything like that. I don't want to be reduced to the label of being the inventor of the Walkman."

Study: Wikipedia As Accurate As Britannica
Daniel Terdiman

Wikipedia is about as good a source of accurate information as Britannica, the venerable standard-bearer of facts about the world around us, according to a study published this week in the journal Nature.

Over the last couple of weeks, Wikipedia, the free, open-access encyclopedia, has taken a great deal of flak in the press for problems related to the credibility of its authors and its general accountability.

In particular, Wikipedia has taken hits for its inclusion, for four months, of an anonymously written article linking former journalist John Seigenthaler to the assassinations of Robert Kennedy and John F. Kennedy. At the same time, the blogosphere was buzzing for several days about podcasting pioneer Adam Curry's being accused of anonymously deleting references to others' seminal work on the technology.

In response to situations like these and others in its history, Wikipedia founder Jimmy Wales has always maintained that the service and its community are built around a self-policing and self-cleaning nature that is supposed to ensure its articles are accurate.

Still, many critics have tried to downplay its role as a source of valid information and have often pointed to the Encyclopedia Britannica as an example of an accurate reference.

For its study, Nature chose articles from both sites in a wide range of topics and sent them to what it called "relevant" field experts for peer review. The experts then compared the competing articles--one from each site on a given topic--side by side, but were not told which article came from which site. Nature got back 42 usable reviews from its field of experts.

In the end, the journal found just eight serious errors, such as general misunderstandings of vital concepts, in the articles. Of those, four came from each site. They did, however, discover a series of factual errors, omissions or misleading statements. All told, Wikipedia had 162 such problems, while Britannica had 123.

That averages out to 2.92 mistakes per article for Britannica and 3.86 for Wikipedia.

"An expert-led investigation carried out by Nature--the first to use peer review to compare Wikipedia and Britannica's coverage of science," the journal wrote, "suggests that such high-profile examples (like the Seigenthaler and Curry situations) are the exception rather than the rule."

And to Wales, while Britannica came out looking a little bit more accurate than Wikipedia, the Nature study was validation of his service's fundamental structure.

"I was very pleased, just to see that (the study) was reasonably favorable," Wales told CNET News.com. "I think it provides, for us, a great counterpoint to the press coverage we've gotten recently, because it puts the focus on the broader quality and not just one article."

He also acknowledged that the error rate for each encyclopedia was not insignificant, and added that he thinks such numbers demonstrate that broad review of encyclopedia articles is needed.

He also said that the results belie the notion that Britannica is infallible.

"I have very great respect for Britannica," Wales said. But "I think there is a general view among a lot of people that it has no errors, like, 'I read it in Britannica, it must be true.' It's good that people see that there are a lot of errors everywhere."

To Britannica officials, however, the Nature results showed that Wikipedia still has a way to go.

"The (Nature) article is saying that Wikipedia has a third more errors" than Britannica, said Jorge Cauz, president of Encyclopedia Britannica.

But Cauz and editor in chief Dale Hoiberg also said they were concerned that Nature had not specified the problems that it had found in Britannica.

"We've asked them a number of questions about the process they used," Hoiberg said. "They said in (their article) that the inaccuracies included errors, omissions and misleading statements. But there's no indication of how many of each. So we're very eager to look at that and explore it because we take it very seriously."

The Bane Of File Sharing
François Joseph de Kermadec

I have worked with many flavors of Mac OS and Windows, from System 7 and Windows 95 to Tiger and XP, fooled around with some distributions of Linux and read plenty of stuff about a slew of embedded operating systems I couldn't even boot by myself with an instruction manual. All these operating systems have one thing in common: they all include, in some way or the other, the ability for users to share files over a local network, by dragging and dropping a couple files here and there, checking a couple boxes and sitting back. And of course, over the years, all these operating systems have seen security updates because of privilege escalation issues, because of information leaks, denial of service attacks, etc... all of these revolving around that one ability to share files.

Now, sharing files is a laudable goal but who on earth really uses File Sharing for good? After having worked in different offices, from independent places to large corporations, I have witnessed it in use just about everywhere, on every platform, but never in the right way. One of my former bosses used to share his confidential documents over the network (unknowingly, of course), some of my colleagues were hosting malware on their machines (again, not on purpose) and a couple servers I know were hacked through that very medium. In that mess, was anyone able to share files? Hardly, as most computer users are much more comfortable committing the ultimate heresy that is using email to send large files.

Solutions abound today to quickly and easily share files between users and computers, be it by setting up a dedicated server, renting some online space, transferring the file through IM... In fact, there is no other excuse I can see for File Sharing than the replacement of a real server in an office space that does not wish to invest in one. This, of course, is the first step towards a security nightmare as no file sharing system has really been designed to seriously share anything -- a few files, tops, all belonging to the same security group.

Today, operating systems would be much more attractive if they came bundled with an online service (think .Mac without the outages and included in the price tag) than by including some of these features whose meaning has long been lost. Through force of habit, though, and because they know users still go ahead and enable file sharing first thing, computing companies are reluctant to make that feature evolve. Apple, by actually shipping server-grade tools under the cover of "Personal" sharing in Mac OS X, has made the first step in that direction but lots of work still needs to be done to ensure users only share what they should.

Copyright Infringement Does Not Equal Theft
Russell McOrmond

Online there's a relatively well known concept called Godwin's Law which suggests once a comparison to Nazis or Hitler is made, a conversation should be declared to be over. Once these analogies are made, any ability to have a rational conversation is dead and all focus will be on the analogy.

I believe a similar problem exists with the terms "theft" and "property" in conversations about copyright. I simply see nothing in common between the concept of "theft" of tangible property and the concept of infringement of intangible exclusive rights, such as copyright and patents.

This hasn't yet stopped me from trying to engage in conversation with people who think that infringing copyright is a form of "theft", but it isn't a conversation that tends to be very fruitful and I often call it the Jefferson debate, as this has been a debate waged for hundreds of years with no resolution. On August 13, 1813, Thomas Jefferson wrote a letter to Isaac McPherson which included part of this debate.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

The full letter explains in a very eloquent way the fact that intangibles such as ideas are entirely different from physical/tangible things.

I believe there are more accurate analogies to copyright infringement than "theft". If I own a home, and a brothel moves in next door, their actions have reduced the value of my property. Since running a brothel is not legal in Canada, the activity that reduced my property value is handled under the law. If I instead had a neighbour that simply never kept up their home, this could reduce the value of my property, but in a perfectly legal way. There are even calls to municipal governments to pass by-laws about such activities which reduce property values.

No matter how frustrated I may be about the legal or illegal ways in which other people may reduce the value of my property, it's not rational to use the term "theft" to describe it. Even if the value of my property is reduced to nothing, I still posses the property and thus nothing can be claimed to be stolen.

When someone infringes copyright, they're reducing the value of the copyright in an illegal way, but it is equally inappropriate to use the term "theft".

Just because I entirely reject the concept of "theft" as applied to copyright doesn't mean I feel there's no problem with infringement. The reason I disagree with the word relates to how it closes the minds of those who use it to more modern ways to produce, distribute and fund creativity.

If people believe holding a copyright is like owning a car, it greatly narrows in their mind the ways in which they can possibly make money while at the same time reducing the incentives for people to infringe.

This narrow thinking is also dangerous when in the minds of policy makers who enact laws which, while intended to help creative people, end up greatly harming the majority of us.

For the software I create, I use a business model that couldn't exist if I were making and selling birdhouses or anything that's tangible. I call it the 95% solution: 95% of what a customer wants their computer to do is already solved within the public pool of software licensed under FLOSS licenses. I then get paid a one-time fee to author the missing 5% which I not only deliver to the customer, but also put back into that public pool to enhance that commons.

My business model relies on the fact that for intangibles such as software, the marginal cost of reproduction and distribution is zero. When I make a copy of some existing FLOSS software it didn't cost the author anything, and when people make copies of the software I authored, it doesn't cost me anything.

My work isn't put into the public domain, but publicly licensed. This is an important distinction as I do want my creative rights to be protected against a different form of copyright infringement.

Traditional copyright holders want to get paid royalties for any copies made of their work. I not only do not want to get paid royalties for my work, but the "Share and Share Alike" style license I use demands that those who make derivatives of my work also make their work available royalty-free. While I'm not asking for a monetary per-copy payment, I am asking that those who build on my work pay me by making their work available in the same way. Since my business model relies on the fact that most of a customer's problem is solved in this public pool of software, it's obvious why I want to use any leverage I can to ensure that this pool constantly grows.

Nothing of what I'm doing in my commercial software business makes sense to those whose minds have been narrowed by the concept of copyright "theft". Those who believe that making an unauthorized copy is theft also tend to believe the way to get paid is to charge royalties on authorized copies.

It's not only software where this confusion exists for them. When musicians take their recorded music and make non-commercial distribution royalty-free using one of the non-commercial Creative Commons licenses, they're not "giving away" their music. What these modern musicians have done is realized that by licensing their music this way they can turn something that isn't money making for them anyway into something that works as very inexpensive advertising.

Rather than paying expensive promoter of music they turn their fans into promoters, they take a smaller and less expensive risk by authorizing non-commercial distribution. They make money the way they always had: commercial distribution and use of their music.

Those whose minds are closed by the concept of "theft" won't understand how this can make musicians more money. To them, any royalty-free distribution is a loss of money, and they can't see how the theoretical loss of royalties from non-commercial distribution is most likely going to cost far less than an equivalently effective paid marketing campaign. While music promoters won't like being replaced by Internet peer-to-peer advertising, the positive outcome for the musicians themselves can be far greater.

We need to look more closely at those who are the loudest in the copyright debate.

Are these people who represent musicians, or are they people who represent legacy middle-men who are actually fearful of being made redundant ("right sized") by modern business models?

In Canada the most vocal groups are the US and the European major labels represented by the CRIA (Canadian Recording Industry Associatioin) that are the most vocal, followed by the United States government, and then pay-per-copy royalty collection agencies such as Access Copyright. These groups don't represent creativity or creators, but they do represent legacy middle-men or legacy business models that are being "right sized" or "transformed" in a new economy.

Until next week,

- js.

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Old 24-12-05, 11:03 PM   #4
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Jack.....you are so good......mindboggling......thanks.
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Old 25-12-05, 11:10 AM   #5
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Merry Christmas Belle!
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Old 25-12-05, 08:09 PM   #6
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And to you too.......
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