November 1, 2007
A Different Look at the Google/Microsoft Book Projects
There is a thoughtful and provocative essay by Anthony Grafton in the most recent New Yorker on the digitization projects by Google and Microsoft. He places these attempts to create a universal library in the context of how these projects are limited in comparison to their goals. Well worth reading. You can find it here.
As a side note, this is the 1,000th post on this blog. Happy milestone (or millstone, or whatever).
Petition Filed With the FCC Over Comcast Net Traffic
Comcast is now the subject of a formal petition before the FCC concerning its alleged blocking/delaying of BitTorrent transmissions. The SavetheInternet web site filed the document along with academics from several universities. They basically call on the FCC to enforce their pledge regarding the implementation of wireline services. They quote from Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 F.C.C.R. 14853, 14904:
Some commenters request that we impose certain content-related requirements on wireline broadband Internet access service providers that would prohibit them from blocking or otherwise denying access to any lawful Internet content, applications, or services a consumer wishes to access. While we agree that actively interfering with consumer access to any lawful Internet information, products, or services would be inconsistent with the statutory goals of encouraging broadband deployment and preserving and promoting the open and interconnected nature of the public Internet, we do not find sufficient evidence in the record before us that such interference by facilities-based wireline broadband Internet access service providers or others is currently occurring. Nonetheless, we articulate principles recognizing the importance of consumer choice and competition in regard to accessing and using the Internet: the Internet Policy Statement that we adopt today adopts such principles. We intend to incorporate these principles into our ongoing policymaking activities. Should we see evidence that providers of telecommunications for Internet access or IP-enabled services are violating these principles, we will not hesitate to take action to address that conduct.
The petitioners note three ways where Comcast violates the FCC rules. The first is that users cannot run applications of choice. Reported evidence shows that Comcast affirmatively cancels transmissions between torrent nodes, but even degrading service means that users can't effectively run P2P services. While illegal content may be transmitted via P2P, there is a lot of legal uses for it. Licensed video content distributed by legal sources uses P2P as one example. Lotus Notes is a completely legal application hindered by Comcast.
The second alleged violation is that Comcast's actions prevent users from accessing the lawful content of their choice. This relates to Comcast customers being unable to provide content to lawful downloaders.
The third claimed violation is that degrading service limits competition which hurts consumers. This has to do with services on the Internet rather than competition between ISPs. As a side note, I wonder if competition issues are part of the motivation for Comcast to denigrate P2P services. After all, they are a cable company that provides broadband. Could some of the video over IP cut into their ability to sell their own video product? The petition suggests as much.
It's going to be interesting to see the FCC handle this one. Comcast has yet to weigh in with a response to the petition. That should also be interesting in light of third party tests of the Comcast network. You can bet that other carriers such as AT&T, Verizon, and others will take a deep interest in this case as well. There's no evidence that they degrade services as well, but watch for them to start shaping network traffic if this goes for Comcast. Congress will likely weigh in on this as well depending on the FCC's response.
October 31, 2007
Federal Court Says Bloggers Can Be Journalists
While Congress and the administration argue over whether bloggers should be part of a federal reporter's privilege (or even if there should be one at all) a federal court has defined a blogger as a journalist. Ars Technica is reporting on a case out of South Carolina where a blogger was sued by a party on defamation and trademark issues. Philip Smith was sued by his former boss, Daniel Schmidt, over negative statements Smith made on his blog concerning his former employer. Smith did three things that prompted the action. He used a copy of the company logo in the posting; he called Schmidt a "yes" man; and he linked to a picture of Schmidt and his wife. The Court addressed each of the issues raised by the complaint. However, the most interesting part of the opinion covered Smith's status as a writer.
The Court analyzed the content of the article Smith wrote on his blog and concluded that some bloggers, indeed, can be journalists.
From the Court's opinion:
However, in determining whether Smith was engaged in news reporting or news commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs in their memorandum in support of a preliminary injunction, which examines the content of the material, not the format, to determine whether it is journalism. See David L. Hudson, Jr., Blogging, http:// www.firstamendmentcen ter.org//press/topic.aspx?topic=blogging; (Pls.' Mem. Supp. Preliminary Injunction Ex. 34 (Hudson on Blogging).). In addition, the court has considered the intent of Smith in writing the article. The court agrees that not all bloggers are journalists. However, some bloggers are without question journalists. See CNN BLOGS: YOUR SAY, http:// www.cnn.com/exchange/blogs/.
Upon review of the content of the article, the court finds that Smith's use of the BidZirk mark in the article was in the context of news reporting or news commentary. The article posted by Smith concerning the Plaintiffs is written for the purpose of conveying information to the public. In the four installments of the article, Smith describes his experience with BidZirk in great detail. (Pls.' Mem. Opp'n Summ. J. Ex. 2 (Article).) In addition, Smith addresses the positive and negative aspects, in his opinion, of dealing with a an eBay listing company, such as BidZirk. ( Id.) Further, Smith provides a checklist for using an eBay listing company and tips for selling items on eBay. ( Id.) Smith felt that what he learned from his experience with BidZirk would be helpful to others in dealing with an eBay listing company. The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article's function or intent was not news reporting or news commentary.
In a side note, the Court also sanctioned the plaintiff's attorney for filing a lis pendens against the defendant's condominium, ostensibly to make sure the defendant could pay damages in the event he lost. The Court said that the action was out of place as this was not a real estate case. File that one under some attorneys can be jerks. The opinion is on Westlaw at 2007 WL 3119445.
First GPL Lawsuit is Settled
The drama of the first lawsuit under the GPL license sort of fizzled because the parties settled their suit. BusyBox sued Monsoon over GPL licensed technology included in Monsoon products because Monsoon would not disclose the source code of the modified product as the license required. The suit would have been the first test of the GPL license in a U.S. court if it had gone to trial. The parties, however, settled. Everybody gets what they want. Monsoon gets to ship its products with BusyBox codes and they will disclose their source code. BusyBox also gets some money.
October 29, 2007
Third Option for Libraries Interested in Scanning Projects
Computerworld has a good story on the efforts of Google and Microsoft to scan books into digital libraries. While the efforts are all worthy, libraries pay prices for working with both companies. The fee is not cash, but restrictions on how the scanned output is distributed. Google has a restrictive policy regarding what happens once a book is scanned. Google covers the complete cost of scanning a title. The digital file is given back to the library for it to use with its faculty, staff, and students. It cannot be shared with other search engines and cannot be distributed to other universities. In essence, Google controls the destiny of the digitized book. Microsoft is more forthcoming. They only restrict the file from use by other commercial competitors, not other academic institutions.
For these reasons, a number of libraries aren't going with either company to scan content. Some see the restrictions as not in keeping with the purpose of a library when it comes to sharing content. That's why they are willing to pay to have content scanned by the Open Content Alliance. The OCA has some pretty hefty collections as contributors, including the British Library, Columbia University, the University of Chicago, the University of Texas, the University of North Carolina at Chapel Hill, the University of Illinois at Urbana-Champaign, and a host of other heavyweights. The complete list of participating libraries is here.
The OCA says that it respects copyright and wants to work with copyright holders in determining what rights the public should have to a particular work. The public domain material would be free for anyone to use. One of the problems with any of the book scanning projects is the lack of government authored material which is essentially in the public domain. There are commercial efforts to scan the back content of the United States Serial Set. Congressional reports and documents since 1994 are available on the GPO Access web site in text and PDF formats. There really isn't much question about the status of these texts. Oddly, though, Google and Microsoft both treat them as copyrighted.
Take, for example, a House hearing held in 2005. The House Ways and Means Committee held a hearing entitled "Long Term Health Care" on April 19, 2005. GPO Access offers free download of the item. Google Books puts it in Full View without a download option. Microsoft doesn't offer the text at all as a result of obvious searches. Older federal government documents show up in snippet view or without a preview at all in Google. Microsoft has extremely old government documents available for view and download, but little to nothing of any substance for more modern materials. A whole class of documents that would be the easiest to make completely available to the public are missing or with limited access through the major library digitization projects. It makes no sense.
It's true that some congressional materials reprint copyrighted materials in appendices on occasion. These kinds of documents may be worth restricting by the search engines for legal reasons. There are, however, totally government authored materials that are restricted for no apparent reason. Again, it makes no sense. Google and Microsoft may be responding to the efforts by Lexis and others to digitize the complete United States Serial Set. A free version would seriously diminish the needs for a pay database. But that's the risk when someone wants to place a value on a collection of public domain materials. Some day there will be an organized open access database of government materials. The OCA may be the best bet so far for making that happen.