ARTS & FARCES internet

Censorship

The Electronic Frontier Foundation (EFF) has filed an amicus brief (.pdf; 123KB) in the case of two domain names seized by the US government in a flawed anti-infringement action on behalf of the entertainment cartel. “This misguided intellectual property enforcement effort is causing serious collateral damage to free speech rights,” said Corynne McSherry, EFF intellectual property director. “These domain seizures should cease unless and until the government can fix the First Amendment flaws inherent in the program.”

ESRD

Just when the dialysis providers in the US are no longer allowed to bill for Epogen separately, the US Food and Drug Administration (FDA) announces that there are “no risk-free doses of Epogen, Aranesp, and Procrit.” These drugs are used to treat severe anemia in kidney failure, cancer, and other patients. As I’ve written, repeatedly, I cannot function when my hemoglobin falls below 11 g/dL and I’m feeling pretty craptastic when it falls below 11.5 g/dL. As everyone and their brother, including Gardiner Harris, writing for the New York Times, continually likes to point out, these drugs are expensive; they’ve cost the US government more than US$60 billion since 1989. In my experience of more than 11 years on dialysis, I’ve never been over-prescribed Epogen. I don’t doubt that over-prescription happens—I know it happens; I’ve written about it extensively here—money is involved, so the question is self-answered. What I’m saying is, it’s never happened to me.

Intellectual property

Glenn Fleishman, writing for the Economist, has a remarkable overview of sound recording copyright in the US. “A quirk of the federal copyright law with regard to recordings means that nearly all music, spoken word, and other aural treats produced before the early 1970s are currently protected until the second half of the 21st century,” writes Fleishman. This is a result of two sets of rights for audio recordings; one for the underlying work, and another for reproduction and distribution. This second set of rights is governed by state, not federal, law. In most cases for recordings made before 1972, the rights are perpetual and whoever has physical possession of the masters owns the reproduction rights.

A US federal appeals court has ruled (.pdf; 184KB) to mostly overturn the hot news doctrine recognized by the US Supreme Court in 1918, ruling that a website is within its rights to publish the recommendations of stock analysts in near-real-time. “... a firm’s ability to make news—by issuing a recommendation that is likely to affect the market price of a security—does not give rise to a right for it to control who breaks that news and how,” wrote the judges in their ruling. Joe Mullin, writing for PaidContent, notes that corporate news organizations supported the decision on the grounds that the court didn’t do as Google and Twitter asked, and eliminate the hot news doctrine completely.

Just when you thought the Righthaven case couldn’t get any weirder, it does. US District Judge Philip Pro ruled (.pdf; 373KB) this week that an unauthorized publication of an entire article was allowable under the fair use exception to US copyright law. The copyright infringement lawsuit was brought by Righthaven on behalf of its partner, Stephens Media, against Wayne Hoehn who posted an entire Las Vegas Review-Journal editorial on a website of which he was not an employee. “Righthaven did not present any evidence that the market for the work was harmed by Hoehn’s noncommercial use for the 40 days it appeared on the website. Accordingly, there is no genuine issue of material fact that Hoehn’s use of the work was fair and summary judgment is appropriate,” wrote Pro in his ruling. Pro went on to cite Hoehn’s noncommercial use of the work and found that Righthaven, once again, did not have legal standing to bring the lawsuit.

In yet another illustration of how the US copyright system has jumped the tracks, Andy Baio was threatened with an infringement lawsuit over the cover art for Kind of Bloop, an eight-bit “chiptune” tribute to Miles Davis’s most incredible Kind of Blue. Baio licensed all the music and figured he was in the clear—via the fair use exception to US copyright law—for his cover art which itself was a tribute to Jay Maisel’s iconic photograph of Miles Davis. Maisel wanted US$150,000 for each infringement, attorney’s fees, all of Baio’s profits, and a US$25,000 Digital Millennium Copyright Act (DMCA) violation cherry on top. After seven months, the parties settled and Baio paid Maisel US$32,500. Baio has documented the ordeal and his reasoning in “Kind of Screwed.” Highly recommended.

AT&T, Comcast, and Verizon are preparing to join the entertainment cartel’s antipiracy fight in the US. So reports Greg Sandoval, writing for CNET. Sandoval writes that under the plan, the top three US internet service providers (ISPs) “would adopt a ‘graduated response’” for alleged infringers. “ISPs would first issue written warnings, called Copyright Alerts, to customers accused by content creators of downloading materials illegally via peer-to-peer sites. Should a subscriber fail to heed the warning, an ISP could choose to send numerous follow-up notices. The plan, however, requires ISPs to eventually take more serious action.” The more serious action proposed by the cartel includes throttled bandwidth, access limitations, mandatory re-education participation, and seemingly everything and anything else shy of outright banishment. Even the rumor of this should be sufficient for consensus that internet service providers be regulated under current common carrier law.

Censorship

The third US Circuit Court of Appeals has ruled that public schools can discipline students for their off-campus, online speech (.pdf; 434KB), but may not go as far as suspending a 14-year-old student. The court also ruled that a Pennsylvania school district violated the First Amendment rights of two students who were disciplined by the school for publishing remarks about their principal, using off-campus computers. The test for suppressing student off-campus speech is the same as a 1969 US Supreme Court ruling: Whether or not the speech will “materially and substantially disrupt the work and discipline of the school.” But in the Supreme Court case, about whether students could wear black armbands to protest the Vietnam War, the decision was about on-campus speech. Now that decision has been extended to students’ off-campus speech.

Apple, bending over even further for the entertainment cartel, has apparently applied for a patent on new technology that disables mobile phone video upon command from external signals in public venues. Tim O’Reilly takes the next logical step: “Now imagine if that same technology were deployed by repressive regimes. Goodbye to one of the greatest tools we’ve yet seen for advancing democracy.” O’Reilly’s wrong to think that the situation would be any different with Google, but he’s absolutely correct in calling the entertainment cartel “one of the most pernicious industries on our planet.” Eric S. Raymond has published an analysis of the risks of computing environments that are not user-controllable “down to the bit level.” Here’s Raymond’s nut graf: “As we become increasingly dependent on computers and the internet to mediate our communications with others, the integrity of our social and political networks requires that we have complete control of those computers. Without that control, not only are we liable to have our communications with others blocked and filtered, the evidence of reality itself can be suppressed. Concerts, police actions, and political demonstrations can be censored from the internet-enabled conversation. These events can, in an increasingly important sense, be made unwitnessable –- deleted from social memory.”

Intellectual property

Last year Righthaven, a copyright holding company, began entering into agreements with newspaper publishers to litigate against website owners excerpting and linking to the newspaper content. More than 200 of these copyright infringement cases have been filed, and about a third of the defendant websites have settled. In April, a federal judge unsealed the agreement between Righthaven and one of its client publishers, revealing the client publisher receives half of the proceeds of the lawsuits and that Righthaven holds only limited rights in the published material, potentially limiting the copyright holding company’s standing in these lawsuits. On 14 June 2011, US District Judge Roger Hunt dismissed one of the infringement cases brought by Righthaven (.pdf; 143KB), characterizing the case as a “sham,” and ruling that Righthaven didn’t have standing because it never owned the copyright on the published material. “Today’s decision shows that Righthaven’s copyright litigation business model is fatally flawed, and we expect the decision to have wide effect on the over 270 other cases Righthaven has brought,” said Kurt Opsahl, Electronic Frontier Foundation (EFF) senior staff attorney in a statement. In the case, the Democratic Underground website published an excerpt from an article, a clear application of the fair use exception to US copyright law. Would that the judge rule on that, the core of the case, instead of a technicality, albeit a big one.

Media

At first glance, the latest French attempt at internet control—no, not Sarkozy’s e-G8 summit plea to “civilize” it; the ruling by the Conseil superieur de l’audiovisuel prohibiting the mention of Facebook or Twitter on broadcast except when discussing either company directly—appears to be the frogs being, well, frogs. Not so fast. John Naughton, writing for the Observer, does an excellent job of unpacking the ruling. Basically, it’s just being consistent with a 1992 ruling that prohibits media organizations from promoting brands during news broadcasts. “What’s going on, in other words, is that our media are treating Twitter and Facebook as if they were public utilities, like the open web,” writes Naughton. He goes on to cite Dave Winer’s earlier explanation: “The Library of Congress, which is part of the government, is subsidizing Twitter, by doing a complete archive of Twitter, before making a serious attempt at archiving the web. This helps cement Twitter as the medium of record, which is ridiculous.”

Censorship

James Glanz and John Markoff, writing for the New York Times, report the Obama administration is supporting an effort to “deploy ‘shadow’ internet and mobile phone systems that dissidents can use to undermine repressive governments that seek to silence them by censoring or shutting down telecommunications networks.” One of the projects, funded by a US$2 million US State Department grant to the Open Technology Initiative at the New America Foundation, is an internet-in-a-suitcase system to provide a wide-area wireless mesh network with internet connectivity. A worthy undertaking, indeed, so long as the systems are available to anyone who needs them, not just those the US chooses to support.

Cryptography

The International Monetary Fund (IMF) was hacked and suffered what an unnamed “senior official” told David E. Sanger and John Markoff, writing for the New York Times, was “a very major breach.” Apparently the breach was bad enough that Sanger and Markoff report the World Bank severed their direct link to the IMF. The IMF oversees the global financial system with the intent of stabilizing exchange rates between developed nations and loaning money for “economic development” to developing states, the latter almost always problematic. As Joseph Stiglitz said best, “When the IMF arrives in a country, they are interested in only one thing. How do we make sure the banks and financial institutions are paid?... It is the IMF that keeps the [financial] speculators in business. They’re not interested in development, or what helps a country to get out of poverty.” The IMF databases are a potentially lucrative target for financial speculators as they contain sensitive information on bailouts around the globe. Sanger and Markoff report the IMF “declined to say where they believe the attack originated.”

ESRD

Jane Brody’s column in the New York Times this week touches on an important subject but fails to adequately address it. Paying for end-of-life healthcare should matter to all of us. Inordinate amounts of money are wasted extending life at the end. More importantly, these expenditures rarely do anything at all to improve the patient’s quality of life. US politicians are slowly coming around to realizing this and passing legislation like New York’s Palliative Care Information Act. The Medical Society of the State of New York, representing doctors, medical residents, and medical students, oppose the legislation that took effect last February. The law requires doctors to provide information and counseling about palliative care and end-of-life treatment options. Patients, of course, can refuse to discuss the issues, at their option; but the medical professionals are required to bring it up. Brody cites Yashar Hirshaut as writing, “the new law is going to have a direct negative effect on too many cancer patients,” and relaying his negative experience explaining the law’s requirements to a patient (the patient asked if they were trying to kill her). Well, Yashar, your job as a physician isn’t to explain the law’s requirements. Rather it’s to inform your patient of her options.

Business

A day after Groupon chief executive Andrew Mason gave Kara Swisher what’s come to be known as the “death stare,” at the Wall Street Journal‘s D: All Things D conference, Groupon announced (bit didn’t file) its initial public offering (IPO). The two-year-old company hopes to raise US$750 million, making it one of the largest recent IPOs. With 7,000 employees and 83 million subscribers in 43 countries, Groupon remains unprofitable. Groupon uses an accounting trick called adjusted consolidated segment operating income on its S-1 to magically turn a US$413.4 million loss in 2010 into a profit of US$60.6 million. What’s especially troubling is that Groupon raised US$946 million last January, spending all but US$209 million in payouts to the founders and early investors. I suspect Groupon will wish it filed on announcement. But, no worries: Mark Andreessen says there’s no bubble.

It had to happen sooner or later. Combine an untraceable digital currency with onion routing and one of the first things that’s bound to pop up is an anonymous, reputation-based market. That’s just what Silk Road is. Because it’s anonymous and because it’s new, Silk Road is mostly about underground goods that are generally illegal. Adrian Chen, writing for Gawker, explains how Silk Road works (mostly resembling something straight out of a William Gibson novel). The authorities will, of course, crack down on the drugs being bought and sold through Silk Road (because the goods ordered are physical, they have to leave the bitstream; that’s the weak point). And BitCoin isn’t as anonymous as it could/should be—a public log of all transactions is recorded. But those same authorities will almost certainly totally miss the true revolution lurking below the surface of Silk Road: A truly anonymous, untraceable, alternative currency leading not just to anonymous, reputation-based markets, but an entire agora.

In what I hope is a trend, a branch of Bank of America had to cut a check or risk losing its furniture to public auction. A couple from Ohio purchased a home in southwest Florida from Bank of America in 2009. They paid cash, so there was no mortgage or other BoA encumbrance on the property. On 16 February 2010, Bank of America filed for foreclosure on the property, voluntarily dropping the case two months later. The Circuit Court judge on the case ordered Bank of America to pay the couple’s legal fees. Bank of America sniffed twice and ignored the order. Earlier this week the couple, their lawyer, a moving crew, and two Collier County sheriff’s deputies appeared at a Naples, FL branch of Bank of America with a court order for either US$2,534 or furniture to be sold at public auction. Dick Hogan, writing for the Ft. Myers News-Press, quotes Todd Allen, the couple’s attorney just before Allen entered the bank: “I’m leaving the building with either cash, a check, or a whole lot of furniture.” Steven Beardsley, writing for Naples Daily News reports that at about the same time as the court ordered Bank of America to pay the couple’s legal fees, Bank of America’s local attorney, the David J. Stern law firm, was being investigated by the Florida Attorney General for questionable foreclosure practices. Beardsley also notes that the case isn’t over. Todd Allen told him that he’s going after Bank of America to cover his fees. “If Bank of America doesn’t pay it, we’ll be back doing this again,” Allen told the reporter.

ESRD

As Medicare begins tracking spending on individuals it will be able to reward hospitals that keep costs lower and provide qualitatively better care to patients in relation to competitors that don’t. Hospitals, of course, are not real happy with this new performance measure, citing that the new initiative—“value-based purchasing”—includes the 90 days after a patient is discharged from the hospital. Performance tracking begins next month and the reward-punishment based on the tracking begins in October 2012. Charles N. Kahn III, president of the Federation of American Hospitals, told Robert Pear, writing for the New York Times, that his organization supports performance based pay for hospitals, but holding hospitals accountable for patients three months after discharge is “unrealistic, beyond the pale.” Some percentage of Kahn’s member hospitals will be punished for poor performance under the new initiative, so of course he’s going to see it as unworkable. Medicare has had qualitative data on hospitals for quite some time but has never made it public. Finally, patients will be able to make an informed decision about hospitalization.

“Do you want to live in a country where a poor person who wants health insurance has to give up a kidney?” That’s the question Gabriel Danovitch, a transplant surgeon at UCLA poses to Michael Booth, writing for the Denver Post in an article about compensating organ donors. It’s no secret that organ waiting lists have grown. A generation ago, cadaver organs could be procured in about a year; now waiting lists on either coast are approaching 10 years. Some in the medical community, like Arthur Matas at the University of Minnesota, are outspoken in their support for compensating organ donors through a variety of means including paid health insurance. Others, like Danovitch believe any system of compensation for organ donation will devolve into the rich exploiting the poor. What will likely tip the balance for the US Congress, at least in the realm of kidney failure, is the fact that organ transplants are very expensive but significantly cheaper than dialysis. Booth has been doing a generally excellent job covering dialysis issues since DaVita moved its corporate home to Denver, but he makes the mistake of conflating liver and kidney failure in this article. A person with liver failure will die without a transplant; a person with kidney failure can live indefinitely on dialysis without a transplant.

Business

Square demoed the two missing pieces—an iPad-based cash register and an iPhone-based app, Card Case—from its ecommerce system at TechCrunch Disrupt. The cash register is an iPad app complete with analytics. The Card Case iPhone app is configured with the user’s credit card information. Upon entering a coffee shop, for example, the user will be able to browse a menu and place an order from her iPhone, giving the cashier only her name.

I’ve been getting asked a lot about my MinneBar shirt. MinneBar is Minnesota’s (mostly) internet/web/design BarCamp. But it’s also for business startups and it’s now the largest BarCamp in North America. This year’s MinneBar was held at Best Buy’s world headquarters on 7 May 2011 and was sold out. I learned a good bit and made contact with a lot of folks that I haven’t seen for quite some time. Here, watch this. Chuck Olsen does a much better job of letting MinneBar attendees explain MinneBar than I ever could. See you at MinneBar 7 next year (and at UnSummit 5 on 18 June 2011). In case you were wondering, I haven’t been to a traditional conference in more than 10 years. Dave Winer explains why. The last conference I attended was one at which I spoke and was probably either Interop or Macworld Expo. I’ve never paid to speak, but I can’t speak for my publishers who generally arranged the gigs.

ESRD

Medical professionals aren’t happy about reviews by their patients. A trend is emerging whereby doctors are asking patients to sign over ownership of any public commentary via a “mutual privacy agreement.” Medical professionals are already bound to privacy by federal law—the HIPAA Privacy Rule in the US—so it’s clear this is a move to censor patients. Timothy B. Lee, writing for Ars Technica, reports on his brush with this on a recent visit to a new dentist.

Intellectual property

Talking Points Memo ran an image of the New York Stock Exchange trading floor accompanying an article about an insider trading case. That was last November. This week, the online publication received a takedown request from the exchange’s lawyers. Presumably this would be a Digital Millennium Copyright Act (DMCA) takedown request, but it’s peculiar in that in references “trademarks.” So maybe not. Talking Points Memo’s founder, Josh Marshall’s response was swift, calling the action “yet another example of how many large corporations have given way to IP-mania, trying to bully smaller companies into submission with inane and legally specious claims of intellectual property rights.” He then published the image again. Hey trigger-happy lawyers: Fair use in the US is real, study up on it.

US Senator Ron Wyden (D-Oregon), the only intellectual property realist in the US Senate, has promised to put a hold on the PROTECT IP Act (S. 968) that passed out of the Senate Judiciary Committee with unanimous support this week. Nate Anderson, writing for Ars Technica, reports receiving an email from Wyden’s office saying, “Senator Wyden plans to hold the bill. We will have a longer statement shortly.” Last year Wyden placed a hold on a similar bill.