Tag Archives: United States

Amended Google Books Settlement: analysis & reactions

Yesterday, Brad Stone and Miguel Heft reported at the New York Times that the terms of the digital book deal with Google had been revised.

Danny Sullivan has written an excellent post on the amended Google Books settlement, where he liveblogged the press call and links to many other excellent resources, including the discussion on TechMeme.

The Amended Settlement Agreement (11/13/2009) is embedded below.

Google’s official response contained a link to a summary of the changes made here and includes a FAQ. More information is also available at th Google Books settlement page.

The Open Book Alliance has posted its own response to the Google Book Settlement.

Echoing the dismissal of the amendments by the Open Book Alliance, which called it “sleight of hand, Peter Brantley,  (as quoted in the Financial Times) said that “None of the proposed changes appear to address the fundamental flaws illuminated by the Department of Justice and other critics that impact public interest.” Brantley is director of the Internet Archive, which has been archiving digital content for years and has proposed an alternate vision for e-books, OpenLibrary.org.

I’m still reading through the settlement. The amendments would create a trustee for each one of the so-called “orphan works.” As Stone and Helft reported at the Times, “that trustee, with Congressional approval, can grant licenses to other companies who also want to sell these books, and will oversee the pool of unclaimed funds that they generate. If the money goes unclaimed for 10 years, according to the revised settlement, it will go to philanthropy and to an effort to locate rights holders. In the original settlement, unclaimed funds reverted to known rights holders after five years.”

The settlement also reduces the number of books that Google may proceed to digitize into its catalog at Google Books to books published in the United States, Britain, Australia or Canada.

“The changes will mean that 95 per cent of all foreign works will no longer be included in Google’s digital book archive,” said Richard Sarnoff, chairman of the Association of American Publishers, as quoted by Richard Waters in the Financial Times.

As Waters also pointed out, the settlement “also means that ,illions of out-of-print works that could previously only be found in a handful of university research libraries.” For researchers like Alexis Madrigal of Wired Magazine, who wished earlier for the parties involved to find a way to preserve Google Books, this settlement is one step closer to a successful resolution.

For authors or their trustees, it’s more complex. Whether amendments go far enough in providing other Internet companies with the means to successfully compete in providing an index of digitized books is not immediately clear. There’s going to be scrutiny of the settlement from the Department of Justice over the coming weeks, not to mention Congress. If Google remains as only company able to offer a comprehensive archive of all digital books to online readers, antitrust concerns may force further adjustments by the search giant.

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Supreme Court preview for the 2009-2010 session from ACS

The Supreme Court of the United States

The Supreme Court of the United States

What cases coming before the Supreme Court will be the “most interesting and have the most impact” on the American people? That’s a matter of considerable interest before the Justices hold their opening conference next Monday.

According to the lawyers assembled for the American Constitution Society for Law and Policy yesterday, the court will consider the constitutionality of life sentences for juveniles, free speech, campaign finance and corporations, revisit  elements of Miranda rights, and hear a case on antitrust on the NFL.

Quite a docket.

The Supreme Court will also, in what Michael Carvin called the “most important separation of powers case in 20 years,” take a hard look at the Public Accounting Oversight Board (PCAOB).  Is the PCAOB, established by the Sarbanes-Oxley Act (SOX),  a “5th branch” of government?

Michael Carvin was just one of an estimable collection of legal minds on the panel, moderated by one Thomas C. Goldstein. Goldstein, along with arguing some 21 cases before the Court, is principally responsible for SCOTUSblog. Goldstein and Carvin were joined by Pamela Harris, executive director of the Supreme Court Institute at the Georgetown Law Center, Doug Kendall, founder and president of the Constitutional Accountability Center, Lisa Kung, director of the Southern Center for Human Rights, Deanne Maynard, partner at Morrison & Foerster and Paul Smith, partner at Jenner & Block.

In the spirit of legally-inspired disclaimers on accuracy of interpretation, I should note before I go any further that, while I have a parent who is a lawyer and am romantically involved with a law professor, I have no formal legal training and came to panel as a journalist and observer.

Campaign Finance

Up to until now, says Doug Kendall, the rule has been to limit corporate participation. The court upheld election communications rule before hand within 30 days. The case before the Court is one that has attracted gallons of media ink, due in no small part to the involvement of a well-known citizen: Secretary of State Hillary Clinton. Consideration of campaign finance is already underway and received additional attention given that it was the first that newly-sworn in Justice Sotomayor has heard.

Doug Kendall brought up the 1990 precedent of “Austin v Michigan” as way of exploring the issue of free speech by a corporation vs speech by an individual. The argument that he put forward goes back to the language of the U.S. Constitution, which refers to persons and people – but not businesses. Kendall argued that the distinction is consistent with first principles. If Austin is overruled, he said, it would unleash corporate campaign expenditures.

Mike Carvin, in a rebuttal that evidenced his considerable experience in courtroom oratory, brought up the example of corporate media outlets like MSNBC or the Washington  Post endorsing a candidate. He questioned whether that would be any different than corporation buying advertising space endorsing a candidate. “Doesn’t think eliminating core political speech rights is consistent,” he said.

Carvin asserted that  26 states don’t regulate speech in this way and don’t operate any differently.  “It would be one thing if we were eviscerating rights for free speech,” said Carvin. “Are we doing this in the name of preserving McCain-Feingold?” He strongly suggested that free speech rights should not “be sacrificed on such slim evidence.”

Kendall observed that the “First Amendment also includes something about the freedom of the press” –  different than, say, Exxon Mobil. “This case raises fundamental questions about what at its core our constitutional protects,” he said, positing the analogy of  “We the people vs We the corporations.”

After that exchange, the substantive issues of whether video depictions of animal cruelty are protected under the First Amendment or national monuments on private land felt positively quotidian, despite the rigorous analysis of the precedents and relevance of the matters.

Miranda,  separation of powers and revisiting federalism

Harris explained that two different cases will be relevant to revisiting Miranda, one of which will address whether a citizen has the right to counsel during questioning. As she pointed out, these cases are “the first real cuts” for Roberts and Alito at the issue.

Another case will visit the question of whether you “deprive employer of honest services” by using business equipment – like, say a computer – on the job for personal or family business. That’s a serious question, given  both the open language and vagueness of the law in question and the way it could impact millions of people who conduct personal business online daily.

Harris also indicated that the case raised questions regarding the separation of powers – classic federalism issues.

Another case, Melendez v Diaz, will focus upon the 6th Amendment, involving the Confrontation Clause. At issue is whether  lab reports represent testimoniasl, which goes to the question of their introduction in trial. Is it enough for a defendant to call the analyst as his own witness? Or does the state need to do so? It “seems like the question is answered,” said Harris.  “What’s different?” The answer is practical: a new Justice. The practical concerns of bringing in analysts each time lab results are presented are significant – doing so would slow process. Given her self-identification as a legal pragmatist, will Sotomayor be more receptive than Souter was?  Harris doesn’t think so.

Separation of powers is also at issue with regards to the Public Accounting Oversight Board (PCAOB), as referenced above. The PCAOB, said Carvin, is “outside of government and presidential control” – that’s a  separation of powers issue.  The defense of agency is “unprecedented in American history,” he said.  The President can appoint or remove chairmen from institutions within the so-called “4th branch,” like the  SEC, FCC or Federal Reserve. In Carvin’s view, PCAOB is a 5th branch,”  with the SEC holding limited ability to influence regulations coming from it.

Criminal matters

According to Lisa Kung, Troy, Alabama has the highest number of capital convictions in the state. The case  of Hollywood v. Allen has raised issues around a  “cut & paste” judicial process at play there, where decisions are showing up with typos from drafts, like “proposed” making it through or misspellings of judges’ names. The question of the case? “What kind of deference does a federal court pay to this kind of judicial…nonsense,” said Kung, focusing less on the minutiae of mistakes and more on the quality of decisions.

Kung also discussed the case of Sullivan vs Ford, where the Supreme Court will decide on the issue of juvenile life without parole. The young man in question was sentenced at 13 years old to life in prison with no chance of parole. “Will it extend Roper?” Kung asked. That care is relevant  to the application of the death penalty under 18. Will Kennedy’s reasoning apply?

Kung brought up a case in which prosecutors were caught acting badly in Iowa by fabricating evidence. The relevant question is how much immunity should the law give to a prosecutor?

Business Docket

A case involved the NFL and antitrust law is coming up, specifically the use of the NFL’s intellectual property by others. The decision and  reasoning behind it could apply to any sort of joint venture down the road.

There’s also a patent case, examining what represents an eligible process. At issue in the Bilsky case is a business method, specifically a theory of hedge fund risk management.

Merck is also on the docket. That’s “part of trend where court taking cases cutting back on plaintiff’s bar,” said Deanne Maynard. “At what point does the plaintiff know enough that it should file?” In this case, the issue is over the troubled pain reliever, Vioxx.

Finally, there’s an issue over property, a case of “classic takings mode,” says Carvin. In Florida, if you own a beach house, the law says that you own the sand down to the high water mark. Like many coastal communities, Florida’s beach homes have been losing land due to erosion. Local governments have tried shoreline replenishment on the beaches in the state, which added 75 feet.  That’s the crux of the issue; the state then asserted that land is public. Home owners disagree.

Carvin, who argued  Bush v. Gore in front of the Florida Supreme Court, pointed out that this case may be memorable, in terms of how that court might change the law.  In essence, he said the court seems to have changed property rights by reinterpretation.

Parting thoughts: SupremeCourt.gov and finding information on cases

I was lucky to hear this preview of the cases coming up. I’m hopeful that the ACS will be releasing video of the session to the public. My observation after some searching online is that, despite SCOTUSblog and other watchers, resources that enable citizens to easily find out what cases are being heard aren’t easy to come by. The court’s website, SupremeCourtus.gov, provides information on recent decisions but the docket page is out of date and relies on the visitor knowing case numbers. Hearing lists are blank. The calendar page is a PDF that doesn’t indicate when individual cases are being heard.

I’m far from the first person to feel some angst over this issue. According to Fast Company, the court’s staffers know the site can use a redesign. The Sunlight Foundation’s Daniel Schuman confirms that in a post on redesigning the Supreme Court: “The Justices appear to agree. They’ve recently asked Congress for money to move control of the site in-house, taking over responsibility from the GPO.”

You can see the Sunlight Foundation’s mockup of what such a redesign might look like, below. The Foundation’s other suggestions, if implemented, would go a long way to making the Court’s cases, decisions and operations more transparent to the American people. I hope they are taken up, along with the long list of cases above.

The Sunlight Foundation's mockup of a new Supreme Court website

The Sunlight Foundation's mockup of a new Supreme Court website

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“Massachusetts Senate seeks to amend, weaken data protection law” [new article]

We had to respond to a bit of a curveball this morning on the Mass. data protection law. A MA Senate Bill significantly alters certain provisions. I reported on it today and will be reviewing it further tomorrow.

Massachusetts Senate seeks to amend, weaken, data protection law
13 May 2009 | SearchCompliance.com

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dana boyd on social media evolution and digital ethnography

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Image by .Andy Chang. via Flickr

dana boyd kicked off a discussion on the ROI of social media in Cambridge with a rapid-fire, necessarily abridged keynote on the history of social networks and their associated digital ethnographies in the United States. dana boyd presented on her research (available at zephoria.org/thoughts). A longer version of her presentation. “Living and Learning with Social Media,” is available online, though without the pretty pictures.

Her first point is that social media isn’t new, either as a concept or platform. It’s just part of a broader part of Web 2.0. She framed Web 2.0 for different audiences in the following ways:

  • For the tech crowd, Web 2.0 is “about a change in development and deployment; constant innovation; perpetual beta; open source/real time”
  • For the business crowd, “it’s about hope. Emerged from bust. Bubble 2.0 followed.”
  • For users: “It’s about organizing communication around friends, communities of interest. Boundaries became blurred.”

One clear distinction boyd made was between social network websites and social networking sites. The former are distinctly not about finding jobs; they’re about finding communities of interest. When rhetorically discussing how social network sites gained traction in the US, boyd cited the network effects created by these self-organizing communities of interest.

When she looked back at the history of these communities, she started with Friendster. (Paul Gillin noted Classmates.com as the first in “Why people love social networks“earlier this week). Friendster, as boyd noted, was designed to be online dating. The three original demographics that populated it were gay men, the “digerati,” and 20-something hipsters that cycle around the playa — aka “burners” at Burning Man.

The trouble Friendster’s leadership found is that “Fakesters started popping up.” These fake profiles, of bands, places or really anything that wasn’t an authentic person with a personal profile, were seen as polluting the community — at least by Friendster’s leadership. They tried to stop it and were faced by a  rebellion. The infusion of Fakesters was followed by another wave: indie rock bands that wanted to connect with fan. Both, in boyd’s words,’ fueled the ire of Friendster and were encouraged to leave. And, in quick order, the early adopters left, moving to Tribe.net or, in the case of those musicians, to Myspace.

Facebook’s introduction followed soon there after, growing meteorically since then, alongside of MySpace. As Boyd noted, however, along with that growth came a series of “digital panics” over culture and risk as embodied in these social networks.

The assumption tended to be that MySpace was about social deviance and sexual meetups, an image that was fueled by sensational reports of sexual predators and exploited teends in the media. Part of this was a division of between Facebook and MySpace in the US that boyd had famously written about in “Viewing American class divisions through Facebook and MySpace” and her subsequent response. Boyd’s dissertation, “Taken out of context,” deals with precisely this issue.

The castes and tribes called out aesthetic differences between the two massive social networks but, as boyd pointed out this was about class. As played out in media, this lens shaped how we understood them, though the websites were functionally and practically quite similar.

For those look for ways looking for ways, to measure the utility or effectives of social networks, Zephoria suggests measuring network density. Look at the activity of clusters. Look at stickiness. If someone is using it but none of his or her friends are, they aren’t likely to stick around. Look for way to measure the health of the community – not just individuals.

When discussing the differences betwen adults and teens, boyd sees fundamentally different cultural, socioeconomic and power structures in play. Teen conversations can look inane from the outside — at best. boyd suggests thinking of them as hallway conversations, part of the process of “digital social grooming.” As she notes, you can have isolated kids in the corner offline too. Wall posts on Facebook are, in her eyes, simply forms of ritualistic hallway talk.

As knowledge workers joined Facebook, they started hanging out with friends — but what they did there was fundamentally different than the teens. Adult are much more likely to create status messages that broadcast outwards, while their “About me” sections are basically resumes, rarely offering up to date bits. Teens are more likely to include what they want friends to know about now.

boyd also noted they way that social media is shifting, including the relevant demographic. The median age of Twitter, for instance, is 31 and shifting higher. Teens aren’t engaging with the site at all. As boyd wryly noted, “for some reason, it’s more the Demi Moore” crowd.

Why? It may be an issue of power, which teens generally don’t have with respect to US society, especially with respect to building digital tools themselves. All of us care about how searchable we are, particularly with respect to the about people who have power searching for data, like law enforcement, potential bosses or academic institutions. We haven’t always been searchable, a reality that boyd put a geeky spin on when she noted that “Mom would have loved to be able to write “grep” or “find” to track me down as a kid.”

Virtual worlds didn’t escape notice. When asked about how social network mixed, boyd first refined the question: “anything that allows us to create social space w/avatars” vs 3D immersive online environments. She noted that teenagers aren’t using Second Life but are using console or online gaming environments to escape and have fun. Such world necessarily require real-time synchronous interaction, which is quite powerful for those who can get online at the same time to play, say, World of Warcraft.

Given that mobile phones are still the number one way to get online, however, there are inherent limits. (That could change if WoW really does work well on the iPhone). Virtual worlds therefore require “dumbing down” or different access patterns. And, in fact, boyd said that “70% of teenagers share the password for their social networking sites with their friends” so that their virtual identities could be curated by others. For the security-minded, this is of course anathema, but for a teenage member of a digital tribe, this is apparently close to the norm.

boyd talked about other cultural differences that vary by country and platform.  Cyworld, for instance, a social network in Asia, is shared family experience. She notes that micropayments are working in Cyworld, sometimes in unexpected ways. “You can buy poop on a friend’s profile, which they then have to pay to clean up.” When she noted that she would “like to see that on LinkedIn,” the audience enjoyed a chuckle. More seriously, however, she observed that as long as teenagers are part of an “oppressed demographic” in the US, our social networks won’t be like Asia. The US market is just beginning to get “all you can eat text messaging plans.” She suggested that the audience “consider the weirdness of someone else having to PAY to receive your message” and the worst cases where cyberbullies blasts someone w/txts, incurring costs.

In closing, boyd noted that social networks and social media in general are here to stay.

As we all create our digital identities, teens and adults alike are aware of the reality of “invisible audiences” that require us to adjust our projections to those who might see us. Once of the central challenges of social media use is how we adjust in the absence of social cues when the rules are still a moving target. The numerous firings that have now occurred after poorly-considered status updates bear witness to this reality. Firing is relatively minor compared to consequences elsewhere, as boyd noted in the the example of journalists in China. They write at two different levels to escape the censors to convey information.

There is now a massive blurring of public and private spheres. boyd doesn’t see privacy as dead — “it’s just very, very, very confused right now.”

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“The challenges of a state CIO” [New podcast]

I was happy to find the podcast  I recorded with Anne Marguiles at the top of SearchCIO.com tonight. The conversation I had with the Commonwealth’s CIO is captured in two portions at “The challenges of a state CIO.” Marguiles was an engaging interview and offered insight on a wide variety of technological challenges and opportunities that exist in 2009 for government agencies and their leaders.

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First scoop: “ICE Act would restructure cybersecurity rule, create White House post”

Image by Boyce Duprey via Flickr

After I caught wind of a bill that was going to be introduced by Senator Karper this week during RSA, I followed up on the information I saw presented there by Erik Hopkins and Alan Paller. I reported on its introduction Monday night, posting “ICE Act would restructure cybersecurity rule, create White House post” before any other news organization had covered the story.

In short order, Jolie O’Dell blogged about it at ReadWriteWeb (Proposed Act Would Create National Cyber Security Office).

Half an hour after that, Brian Krebs picked it up at the Washington Post (Proposal Would Shore Up Govt. Cyber Defenses).

He wrote a great story — but I had it first, which in of itself is a first.

It’s good to get a scoop. Terrific day.

IT Business Edge picked up the story from RWW (Legislation Proposes National Cyber Security Office) and quoted me.

Dennis Fisher blogged about it at Threatpost: (New ICE bill would overhaul federal cybersecurity).

As he noted, there was a hearing today morning on the bill in the Senate Committee on Homeland Security and Government Affairs. You can watch the archived webcast here.

This draft of the Ice Bill (PDF) is now available for download and review from Govexec.com.

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Improving cyberfenses through cyberwarfare simulation

SearchSecurity.com ran cyberattack mapping could alter security defense strategy today,  my new article on how cyberwarfare simulations may be key to the national strategic interest. I’m quite pleased at how the piece came together.

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