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Saturday, July 13, 2002

Rare Loss

Ed Heafey raised great kids, was a friend and mentor to my father for nearly forty years, at the top of an unforgiving professional discipline, a voracious intellect, and a master of the well-placed, sardonic, conversational shotgun shell. One of the most harrowing things for Ed about his battle with cancer, lost this week, must have been the unfamiliar experience of confronting an adversary that no amount of hard work, cleverness and sheer force of will could give him the tools to dismantle. Jahna Berry writes more in the Recorder. [Via] "A man is a summons and challenge." --Walt Whitman, Song of the Answerer We'll remember.

Friday, July 12, 2002

Google! DayPop! This is my blogchalk: English, United States, California, Newport Beach, Denise, Female, 36-40!


The art of medicine consists of amusing the patient while nature cures the disease. -- Voltaire Marek and Daniel: speedy recoveries.

Thursday, July 11, 2002

Tarnishing The Goods

Martin Schwimmer has this fascinating observation about record companies serving fake songs on file sharing networks in order to discourage downloads:
If the record companies are in fact spoofing, then the practice, from a trademark point of view, is unique (to me at least). The owner (or licensee) of the artist's trademark is intentionally distributing an inferior or defective version of the product associated with that trademark, deceiving the user (albeit a non-paying one), in the hopes that the experience will tarnish not the trademark owner but the means of distribution. While it seems metaphysically impossible for the trademark owner to counterfeit or infringe itself, self-tarnishment seems possible (to say the least). Also of interest is whether the free services will respond by filtering out spoofs and advertise that they offer only real unauthorized copies. The question then arises whether spoofing can be extended to the real world in order to disrupt counterfeit operations. An intractable problem fighting counterfeits is that consumers knowingly buy low-quality fakes, i.e. $30 Rolexes. It seems that the insertion of not low-quality but no-quality fakes is one of the few ways of disrupting this market. However it seems like playing with dynamite if it becomes known that the trademark owner is responsible for the fakes.

The B.(lawg) P.(atrol) Files

The top brass didn't believe me, but I knew those midyear performance bonuses to the field unit would galvanize the troops. Sure, we blew the budget, but the agents are bringing 'em in: Agent Bashman nabs law student Nikki Furrer, a hardened offender with twenty days of weblogging under her belt, and a template Timothy Leary would love. Agent Bradley collars (heh) First Amendment/religious cause lawyer and writer David French, plus an embryonic meme: "TheoBlawgs are blogs written by lawyers with a religious edge." Agent Bradley, not long out of the Academy, also is learning from Agent Bashman one of the realities of the profession: "print is dead." (Sorry if those direct links don't work; Agent Bradley may need to republish his archives.) These blawging fugitives harbor in all facets of society.

Wednesday, July 10, 2002

"Billionaires Producing Damaged Goods"

I'm frustrated. Why? Because Cory Doctorow was on The Screen Savers tonight, and provided a concise, eloquent run-down on Consensus At Lawyerpoint -- and why you really ought to pay attention to what they're talking about over there. Great, so why am I frustrated? You need to see the video if you have not had the chance, and there's no link I can point you to. *sigh* Maybe Cory can talk to them and get the clip posted on BoingBoing or Consensus At Lawyerpoint. (Hey, stop thinking what you're thinking. I've had plenty of trying to take things down accurately today, so I'm not going to be transcribing from the TiVo, thanks just the same.) In the meantime, there's a mini BPDG -- see the title of this post for the handy mnemonic mentioned by Cory -- FAQ that goes with the segment and is posted here. Be warned though -- at the time of this writing the FAQ contains an error which hopefully will be corrected by the time you read it, namely: Billy Tauzin is a Republican congressman from Louisiana, not a Democratic congressman from Los Angeles (which has not yet attained statehood). Also interesting from Cory's segment, following up on the show's Question Of The Day ("Do you have the right to share your Internet connection?," which stems from this c | net News.Com story), is the fact the EFF plans to publish a list, by tomorrow or Friday, of ISPs known not to prohibit the sharing of paid-for bandwidth. (If you're into things Wi-Fi, by the way, you might also enjoy this, from Fresh Gear.)

Creative Commons: What's Ahead, With Glenn Brown

Well, I certainly have a more healthy appreciation for Donna, Dan, Doc and anyone else who decides to blog a presentation or discussion. A course in court reporting would be a big help! Failing that, I've fleshed out and added some links to my realtime notes on Creative Commons Assistant Executive Director [thanks Kevin] Glenn Brown's presentation this afternoon here at Crosby, as follows. Preliminarily, I should note Glenn ran his PowerPoint from his Mac laptop (could not tell from my videoconferenced view whether an iBook or PowerBook), and the Mac made itself right at home here after a little projector-futzing. Additionally, although we had initially thought Glenn might touch on Eldred v. Ashcroft, there must have been some miscommunication there. Creative Commons ("CC") is a separate, nonprofit entity with its own mission and no direct involvement in the Eldred case. Glenn's comments focused on Creative Commons: what it is, how it will work, and what are its more long term goals and strategies. First slide, the traditional copyright notice: ©. This is a "brand" known worldwide, but copyright is undergoing a brand crisis, partly as the result of the shift in the U.S. (late 70's, early 80's) away from a scheme where creative works automatically went into the public domain unless affirmative steps were taken to protect. The automatic copyright scheme now in place began to cause confusion. Then came the Internet. Massive creation of works, all automatically copyrighted. Most people, most 'net users, don't know that. Brand dilution: the © notice has lost some meaning now by being attached to what actually are noncopyrightable works. The CC logo, CC, is a take-off on the immediately recognizable copyright symbol. Well, they assumed people would make that connection, but at least one person has thought the logo stood for "Cape Cod." (Big laugh.) So no one is immune from brand dilution problems. The idea for CC has been kicking around for a couple of years. CC received a startup grant from The Center For The Public Domain, in Jan. 2002. Wilson Sonsini and Cooley Godward have been assisting with pro bono legal services. One of the first hurdles CC faces is propagating the CC brand on the 'net. The default rule is automatic copyright protection, and this is hard and expensive to change; it's also unclear in the Internet context what is required to change it. This means creative works are going under-used. CC strives to make it easier for people to identify works in the public domain and increase the amount of materials people can use for free. The primary CC project is its Web application, which will look and feel like most Web applications (think airline ticket purchase). The Web application will generate the CC license, logo and metadata that will help with searchability - both from the CC site, and from third party search engines. A common question Glenn and CC get is: Who is interested? Mostly scholars, authors, photographers, and owners of online collections now, but CC expects broader use too. Also, Why do owners want to share their works using CC, especially when open licensing and GPL already exist? CC will provide a simple way to relinquish some use and distribution rights while maintaining control, and many people would like to be able to do this. Public domain is ill-defined in the case law and not at all in the statutes. CC seeks to marry public domain dedication to a metadata translation of the dedication. A CC custom license will allow an artist to turn over various aspects of the work while still maintaining the copyright. CC intends at least at first to leave the software arena to the GPL scheme. (GPL and Copyleft briefly explained; uncertainties about how Copyleft applies and how far it extends touched upon.) Another slide showed an example of a CC custom license (see here and here): this will specify the kind of use permitted, whether derivative works are ok (whether the work can be changed), whether public or nonpublic use is authorized (nonpublic = personal use, no distribution). A Copyleft provision is also available: specifies that derivative works (example: sample of musical work incorporated into another song) must also be freely useable - chain effect. The CC Web application will generate a CC logo in HTML and other forms to be embedded in a Web page or file. It also will generate a license, in triplicate: human readable form (Commons Deed), machine readable form (browsers), and lawyer readable version (full license). CC is in the process of working out the precise language of the Commons Deed, and seeks to keep it simple and plain english. End users and copyright holders will be able to link through the Commons Deed - most important aspect of this application - to the other versions/layers (machine readable and lawyer readable). On the machine readable/metadata side of things, CC's guru is Aaron Swartz; see also his CC bio sketch. Aaron is 15 years old, an RDF expert, involved in W3C and a heckuva lotta other stuff that impacts how the Web works and will work. [Aside from DMH: You've probably been pointed to his weblog many times.] Glenn fears for his job, as Aaron is bound to take over the whole CC enterprise - ha ha. CC's primary use will be in identifying and searching for useable works. It is very close to finishing a first draft of the full ("lawyer readable") license. There will be an open peer-review-type process from the CC site, but prior to then Glenn invites feedback from lawyers in the copyright field. Email him if you are interested,; he plans limited circulation of the draft and a sheet of related questions before publishing the proposed license for further review on the CC site. [Aside from DMH: several Crosby folks, me too, are taking part.] CC's other big focus will be helping users locate "featured content." There will be a featured content registry, linking to trusted third party sites. CC also plans to partner with third party search engines to ensure smooth operation of the machine readable part of the license. Brief discussion of Semantic Web concept - search engine turns Web into database built on the fly. CC works also will be findable through everyday Web browsing: locate work, click logo, takes you to the Commons Deed (which links through to the full license for more detail). By fall, 2002, CC hopes to have the Web application functional, and plans an incremental release. Looking ahead: Global commons? Working on jurisdictional issues. [Aside from DMH: see my initial discussion here; Glenn got my email on this way back when, and says they're devoting much gray matter to the jurisdiction and fraud questions.] CC also is thinking about forming/providing an Intellectual Property Conservancy - this would be a means for CC to actually own and host some content, including software and other kinds of media. Similar to a land trust: you have a public good, and responsibilities incumbent upon owner. Sun and Java analogy: strategy was to offer Java free to the world and have products developed around it. Dilemmas for the owner included wholesale, unauthorized appropriation; dilemmas for the developers/users included trust (if copyright retained by Sun, no guarantee charges wouldn't apply down the road). With the Intellectual Property Conservancy, CC would ensure widespread availability of works in the conservancy/trust, while still being able to maintain their integrity. Another analogy: like a park. Q&A: How would CC work on non-Internet based material? It's anticipated CC will apply almost entirely to Web based material, but consider books or paintings: you could have a Web page for the item which would have the CC logo and link to Commons Deed/license. The Cathedral And The Bazaar example (Eric Raymond) given. Open publication license used for a print book. How will the logo work? The public face of the CC structure will be the "CC" logo, with more symbols delineating use specifics on the Commons Deed. A "CCPD" logo for works entirely in public domain is anticipated. What about these thorny issues of the international scope of the CC license? These are thorny issues. For example, there are moral rights questions in Germany and France; some terms of the license-in-progress may face enforcement issues in those countries. [Aside from DMH: see here and here.] CC is being cautious not to be U.S. centric. Does CC plan to track the location/jurisdiction of its users? This is an open question, but CC is not in this to track users or certainly to collect detailed user data; its primary focus is to simplify license issuance and put creative works together with those seeking them. What will the legal representation of the CC license be? It will be the logo on the work and/or on the Web page related to the work. Linking is anticipated as the significant legal act, but all this is pretty wide open. What about fraud? What warranties and representations of authorship and ownership will be provided by those registering works? Registrants have to say they are who they say they are. Spoofing is a big issue that CC is working on addressing. Glenn thinks the license-in-progress has an indemnity clause to protect the user in case the registrant manages to register something to which he/she does not have the actual rights. Note that the software and online world is different and more insular than some other contexts - norms play a bigger role and may aid this issue. Concerning photos, how do you see the interplay between CC and groups like Corbis and Getty Images? Glenn doesn't know if those organizations have a similar metadata component and/or are issuing a court enforceable license. Audience member suggests Tom McCarthy with Getty would make a good CC advisor. What about the music aspect of CC? Expected to be most popular; will work like all other aspects. What will the "featured content" consist of? Still in negotiations with several anticipated providers, but expect online libraries with thousands of photographs, archived articles and Web pages, and works offered by progressive book publishers. What is your funding situation? Funding comes from grants and foundations; CC is doing well here, Glenn is comfortable they'll be in business for awhile; might even find a way of generating revenue. Are you getting any resistance to the overall concept? Initially, CC fielded questions from the EFF and various free software camps, and assured them CC is not doing digital rights management or intruding on the turf of other licensing strategies. The biggest question CC gets is "where's the demand for this?" Is CC politically active? CC can't lobby for legislation given its 501(c)(3) nonprofit status. Nor does it really see the need to try to change the current legal framework for CC to work. Instead, it seeks to strike a balance between total control of works, on the one hand, and anarchy, on the other, under the current legal structure. It doesn't need to change the laws to accomplish this. This was the end of the formal presentation, but Glenn and I talked briefly afterwards about the fraud/spoofing question, and my other (previously emailed) question about whether CC anticipates playing any role in any disputes that may arise between registrants and the users of works. He told me CC sees itself primarily as a facilitator, and that redress for any wrongdoing probably will be left to conventional means of policing fraud on the Internet and the available civil remedies.

I'll Take That To Go, Please

Summing Up ILaw: From Donna Wentworth, who also provides all the links to Dan Gillmor's, Drew Clark's, Frank Field's and Cedar Pruitt's notes/thoughts/etc. Huge thanks, some Tiger Balm and a bottle of Aleve to these writers (for aching finger joints and harried heads).


Dorothea Salo's interview with Frank has swamped my synapses. Beautifully written, subject matter rich and wide ranging. Dorothea's merely 30; see also "Things Other People Accomplished When They Were Your Age [Or Younger, You Slouch]" [via The Screen Savers].

Bugs, Morals And Sock Puppets

After that tease, here are a couple of things to check in the current Wired: The Bugs in the Machine (by Brendan I. Koerner): on how code could be cleaner and products liability law may concur. --Not mentioned, but relevant: transparency. [Via The Linux Journal and Doc] The Moral Minority (by Denise Caruso): on an "open house" approach to bioethics. There are more good pieces but those caught my eye. Also (not in Wired), did you see where the Sock Puppet has gotten himself a second chance? [Via E-commerce Times] With a car loan group and a new tag line: "Who says pets can't drive?"

Tuesday, July 09, 2002

Mailbox Revelation

Come home from work, pick up the mail: bills, bills, junk, Wired Magazine - which I suddenly realize I now view as their way of telling me the magazine part of the Web site has been updated. (Duhn-duhn-duhn; dissolve to black.)

Tomorrow: Glenn Otis Brown of Creative Commons

Don't forget, tomorrow afternoon Bag and Baggage will share Creative Commons Assistant Director Glenn Otis Brown's thoughts on "The Future Of Copyright In The 21st Century," courtesy of our intellectual property practice group (my second, along with appellate). I can still get you in if you ask nicely (more here); otherwise, check here a little after 1:00 p.m. PDT.

Turn Yourselves In, Or You Will Be Apprehended...

Sometimes, justifiably in awe of the perilous tactics of the Blawg Patrol field unit, blawgers just remand themselves to my custody, and turn in their cohorts to boot. Such was the case with Jason Rylander, who practices appellate and land use law in Washington, D.C.:
In my 30 years, I've been an election lawyer, an environmental journalist, a freelance writer, an expert chess player, and a classical tenor. I live in the Washington, D.C. area, but I'm a native New Yorker who can't understand why there's no good Chinese food and pizza by the slice around here. I'm also an opera freak, audiophile, and chowhound who likes Bach, Puccini, Sapphire martinis, fine food, and sleeping late.
Jason also ratted out the indefatigable Pejman Yousefzadeh. I had come across Pejman's site awhile ago and didn't register he was a lawyer. Some force must have been trying to clue me in, as the phrase "PejmanPundit" has since gone through my head several times during yoga class like a mantra. Meanwhile, the field unit remains fully deployed and operational. Agent Will Cox reports, "blawgspotting: almost as fun as trainspotting, but without the toilet-diving," and has nabbed our first Canadian blawg: Michael Girard's e-Lawg. Michael is a bona fide Barrister and Solicitor in Toronto, who reckons e-Lawg will reflect his interests in professional liability (legal and accounting), technology, privacy, Conflict of Laws, insurance, litigation, management and KM.

License To Blog

Anyone who plans to click the publish button with regularity should read Rebecca Blood's book, The Weblog Handbook. Dr. Weinberger captures it in his jacket quote: "[N]ot just a How-to but also a What-to, Why-to and a So-what..." I started reading last night, and now Chapter 1's poor pages are all folded down and marked up so I can come back to the many pearls. Here are some:
The very best weblogs, in my opinion, are designed to accommodate unexpected turns, to allow for a little experimentation. ...
When a weblogger and his readers share a point of view, a weblog constantly points its readers to items they didn't know they wanted to see. ...
Though he knows his audience will read and make their own evaluation, the weblogger will discover that he conveys his point of view in even the few words of his description. With each choice, the weblogger learns the power of a single word to affect the perception of his readers. ...
Sure, you can swerve onto the freeway without driver's training, but it's not the greatest idea - you could do unnecessary harm to yourself and others. From the little I've read of Rebecca's book (and I can't wait to finish it), an alternate title could be "Blogger's Ed."

Monday, July 08, 2002

You Can Take It With You

Technology + law + convenience = good: Larry Sullivan writes: "Starting today, the law office is offering scanned copies of your legal documents (such as wills, living wills, power of attorney, etc.) on a specially prepared business-card-sized CD. ... It is our belief that we are the first law firm to offer such a service, and the cost is negligible." Given the frequency with which wallets, keys, cars, etc. can go missing, security seems important here too. How about strong encryption/password protection - or a tiny destructive charge that could be remotely triggered in the event of loss or theft? Pity the poor culprit who totes your cd in a jeans pocket... --Later: Larry answers the less tongue in cheek part of my security question in his comments, here.

Toward Sensible Solutions

"mediAgora defines a fair, workable market model that works with the new realities of digital media, instead of fighting them." Wow, Kevin, I'm impressed, and hope this project generates ideas that might tame the hornet's nest touched on in the articles below.

P2P Morning

Three stories on the fate of the music industry and P2P networks greeted me before I could even pour a cup of coffee:
  • Declan McCullagh on Rep Howard Berman's bill to permit attacks against file swapping networks: Much Ado About Nothing. [Via c | net News.Com and Politech] As the title suggests, the article surveys technology related legislation proposed this year and examines why it's not going anywhere.
  • Chuck Philips on the sluggish market for Vivendi Universal: Industry Woes Hit Vivendi's Music Unit. [Via the L.A. Times] This piece looks at how buyers for the company responsible for 40% of all cd sales are scarce, in light of fears about the future of the music business as it currently operates.
  • John Healey on dissension among record companies about the value of P2P networks: Labels See Perks In File Sharing. [Via the L.A. Times] Healey points out how independent record labes could undermine the major labels' argument that P2P networks have "no significant legitimate use," because the indies and their artists see the value in exposure gained from file swapping.
  • Stow your tray tables, there's turbulence ahead.

    Sunday, July 07, 2002

    Reports From The Field

    Ernie, head of the highly trained, fiercely committed Blawg Patrol field unit, has nabbed another one: Peter Sean Bradley, who quips that Howard "scoops me on Fresno appellate decisions." (Spooky, isn't it?) The home office did its bit earlier today with Ann, just to keep current on the old tradecraft, and also appreciates Howard's preemptive efforts to keep us from enthusiastically blogrolling fictional, blog-deprived cartoon lawyers (soon's Harvey gets a blog, we'll talk).

    Lecture Notes

    Hylton Jolliffe's Corante On Blogging reminds me of UCLA's lecture notes: missing a day of class isn't the end of the world because Hylton will help you catch up.

    Between The Lines

    One Bucket, Two Tears

    Ann Salisbury has been hiding under my nose here in Newport Beach. Her blog's great fun. Political commentary, PowerPuff Girls, pointers to posts considering the travails of "decent mammary support," and the Newport Pier Surf Cam. Unrelated novelty: Mike Kania designed my BlogSkin.

    Thought You Should Know

    I've been enjoying ...thisisforever^net..., including its crunchy photos.

    Creative Commons LicenseUnless otherwise expressly stated, all original material of whatever nature created by Denise M. Howell and included in the Bag and Baggage weblog and any related pages, including the weblog's archives, is licensed under a Creative Commons License.