complete lack of accountability and the IOC

my sister is boycotting the Olympics. her post is great, and to summarize it wouldn't do it justice, so, please read it in the original. i will take one piece out of it to set up this post, though: Amnesty International has demonstrated that the Chinese government has failed to keep its promises of human rights reform, and from the looks of things, it hasn't even tried. the IOC and the rest of the world had hoped for more when allowing China to play host, and this failure threatens to undermine the spirit of the Olympic Games in a major way. now the issue has hit home a little more directly for me: the Washington Post reports that the IOC is allowing the Chinese government to filter Internet access at the games, even though the IOC and Chinese government had specifically pledged to allow unfettered Internet. according to an IOC official, "The pledge of unrestricted access applied only to sites related to the Olympic competitions."

that's bulls*&t. am i surprised? no, not really, just upset. i'm not surprised that the Chinese government isn't allowing unfettered communications. i'm also not surprised, as my sister notes, that the U.S. government isn't taking much of a stand against it. not only are American athletes still competing in the games, but also President Bush will be attending the opening ceremonies in Beijing. whether we like it or not, China has become a serious power in the world and is not to be trifled with. even my periodic short-term attention span hasn't made me forget the impressive and very scary Chinese anti-terrorism exercises that made the rounds of the Internets not long ago. and for some time now China has been an economic power not to be trifled with.

but, war isn't THAT imminent. as the human rights leaders of the world (well, before the Bush administration), we owe it to the rest to set an example. i'm not sure what the right answer is. at a minimum, President Bush should not be attending the opening ceremonies, and it should be deliberate and overt, as a protest against the broken promises of the Chinese government... but good luck getting that to happen. i don't know that i want to deprive our athletes of the opportunity to compete in the games - it only comes along once every four years, after all. maybe that is what it would take to get worldwide attention to the issue, and to get the Chinese government to feel something resembling shame. but would even that be enough, or is it already too late?

freedom isn't free

Rebecca MacKinnon has a great post today in response to a Silicon Valley conference she attended last week. the main observation of her post seems to me to be that Silicon Valley operates as a tenuous "benevolent dictatorship", and remains largely unaware of the massive legal and political regimes that might restrict their innovations and that many in Washington, D.C. spend sleepless nights worrying about. (she also expresses concern about the "benevolent" nature of the dictatorship - more on that later.) and she's absolutely right about the importance of this aspect of technological innovation. with apologies to Team America: World Police: freedom isn't free, it costs folks like you and me. i also agree with her implicit wish that engineers be aware of the fight that goes on in the policy sector, though i wouldn't say that i feel they should assist in it necessarily. they contribute through technological innovation, and others of us contribute in our own ways.

also, at the moment, the fight to preserve openness and innovation in the Internet is going pretty well. the strategy of private sector deployment of Internet access, checked by reasonable government regulation to protect openness and other consumer values, seems to be rolling along. the Commission is poised to put a check on Comcast's activities (see also here), even as Comcast enjoys tremendous growth. 2009 will (hopefully) show us the deployment of open-access wireless services on the 700 mhz spectrum.

we are starting to have a little breathing room, perhaps, so a few people are asking, what next? where do we go from here? Tim Wu has an op-ed in the New York Times today advocating that we pursue alternative sources of bandwidth just as we are pursuing alternative sources of energy. two of his suggestions are municipal wi-fi and buying/owning your own bandwidth (see, e.g., Derek Slater's post on the latter). i'm skeptical of both of these, though they're great ideas and i'm glad that they are part of the conversation. i have more faith in the third approach, encouraging competition among broadband providers. whether through spectrum (as Wu suggests) or scaling back the monopoly-use rights given to cable and fiber service operators, competition in high-speed Internet service provision has a great deal of potential, but we have to be careful with how we do it. rolling out wires is expensive, after all. and establishing reasonable interconnection charges have plagued the FCC's regulation of the phone network for decades (and have caused worse problems in Japan).

Rebecca MacKinnon's post alludes to another possible direction: looking within the Internet, at the application and service providers there. as she implies, many of us trust our current benevolent dictators, particularly Google and Apple. but scare stories are starting to appear - such as Google selectively releasing some versions of the Android SDK, or Apple persisting in holding iPhone developers to its NDA even though this impacts their ability to share information learned in the software development process and thus limits innovation. Richard Bennett has been trying hard to redirect the Net Neutrality debate away from internet service providers and towards Google. i don't know that i'm lying awake at night over Google yet, but, i'm keeping my eye on the blogs at the least.

there's a lot to think about, and a lot of work to do. as to where the 2009 focus will fall? we will have to see.

Blizzard's litigious ways

during my 1L summer (the summer between first and second year of law school), i had the great opportunity and pleasure to be a summer legal intern at the Electronic Frontier Foundation. one of the cases i helped with while i was there was the 8th Circuit Appeal of Davidson v. Universal Associates, better known as Blizzard v. BnetD. the case dealt with a group of amateur software developers who created a rival server to Blizzards -- which they called BnetD -- that allowed them to play the Blizzard game 'World of Warcraft' online, without using the official Blizzard server. their story was that Blizzard's official server was buggy and didn't have some features that they wanted, so they made their own. Blizzard doesn't charge for playing the game on their server, though they get some ad revenue for it, but that wasn't their issue with the developers. unlike Blizzard's official server, the unofficial BnetD server was unable to tell whether a copy of the World of Warcraft game was an official registered copy with a valid CD key, or was an illegal copy of the game. so Blizzard's theory was that the developers had created a server of their own so that they could play (and empower others to play) illegal copies of the games. they brought suit under the DMCA and under contract and copyright law, and they won.

i wrote about this case in one of my papers, a paper about the effects of cognitive framing. the case hinged on the interpretation of a very ambiguous technical term, "interoperability", contained within an ambiguous provision of a complex and largely unlitigated statute. the 8th Circuit's opinion distinguished the one and only relevant precedent, Lexmark v. Static Control Components, on fairly thin reasoning, and ruled (in my opinion, without much in the way of an explanation) that the activities of the developers exceeded the bounds of the DMCA interoperability exception and constituted a copyright violation. i thought the opinion showed signs of undue influence from cognitive framing activity in the briefs, so i wrote the whole thing up as one of my paper's key examples.

apparently Blizzard is active in the courts again - this time, challenging the developer of "WoWglider", a "bot" program that allows users to leave their characters running and continuing to accrue experience and gold even when the user is not at the computer. according to Sherwin Siy over at Public Knowledge, one of the legal theories raised by Blizzard was that the use of the World of Warcraft software in conjunction with the WoWglider program is not a valid use under the license terms for the WoW software, and that in the absence of permission under the license the minimal technical copying activities involved in operating the game constitute copyright infringement. (Ars Technica has a slightly reworded explanation of the same theory.) on motion for summary judgment, the trial court judge agreed with Blizzard in many respects, including Blizzard's copyright liability theory.

i'll leave the detailed analysis to others who are far more qualified, and take up a little bit more of your time to examine the policy issue. what do we, as a society, want to be the outcome of this case? Blizzard has a valid point: the use of the WoWglider software lessens the enjoyment of the system by legitimate game players, by making it harder for them to compete and advance in the game (certainly relatively speaking, but in MMORPGs, that can be an absolute statement as well). but Blizzard has every right to try, through technological means, to shut down the use of bots, or (even better) to try to detect them and identify the human users behind them, and ban them from the system. do they have the right to punish the developer of the software? do we want them to have that kind of control, reaching outside their domain and getting the law on their side? i am extraordinarily uncomfortable with that kind of power. what right do they have to interfere with how others choose to use the open tools of technology which they are given? they have the rights that we give to them through copyright. unfortunately, these rights and the laws that underpin them are being stretched to bizarre and unrecognizable levels to make sure that companies like Blizzard maintain as much control over their products as possible, even when the technology cannot support that control. why? is this in service of some hidden policy goal, one which is incredibly pro-business and anti-openness? is it the product of effective framing and litigation techniques (imposed on judges unfamiliar with the technological concepts at issue) by the well-funded industry lawyers?

i wish we knew. maybe then we could fix it.

my future cause

i ran across a couple great links dealing with my soon-to-be employer. one is a commentary on the Republican party and the Internet. it has three distinct pieces to it: the first discusses the Democratic party's fundraising success using small donors organized over the Internet, and advocates a Republican adoption of a similar model; the second is an argument for why Republicans should support net neutrality; and the third is an observation that rural Americans, who are disproportionately Republican, also have disproportionately less access to broadband Internet, and perhaps the Republican party should care more about that. the authors are taking a neat angle by acknowledging that the market for internet services isn't a functioning free market at all, and asking what can be done, under that assumption, to promote core Republican values: "freedom, independence and empowering the majority of Americans who want to be protected from abuses of power, be they from Big Government or Big Business." good stuff...

GOP should get serious about cyberspace - Politico.com

the second article is from the other side of the political spectrum - it is a terrific, very liberal piece about media and democracy and the Internet. it emphasizes the value of information, complete and unrestricted, and it expresses concern that an overly concentrated, overly corporate media landscape does not promote the value of information above the value of a share of stock. it weaves this with talk about "new media", the Internet, and how the ideal media landscape that it presents is under attack by the same forces as those driving concentration of ownership of TV stations and newspapers across the country. the rhetoric is a tad heavy handed (complete with obligatory George Orwell reference) and the article degenerates into a mini-rant against the Iraq war partway through, but the first part of it is a spectacular description of the what and the why for many of the things i stand for. [also, if anybody else is curious, Wikipedia describes the "fifth column" concept.]

Is the Fourth Estate a Fifth Column? - In These Times

the inflated importance of "customer service"

http://dcist.com/2008/07/15/murky_coffee_vs_teh_internet.php

i've been thinking a lot about this story, and for a while, i was of two minds. i'm a dedicated coffee snob - i have a double espresso every morning - and while i enjoy iced lattes on occasion, i can't imagine pouring hot espresso over ice and serving it. it would dilute it. at the same time, if that's how a customer likes espresso, that's fine... it's not like the coffee is REALLY ruined in any serious way.

but, at the same time, Murky Coffee has a menu of drinks. that's what they serve. if you want something that they don't serve, don't complain about it and get angry, just go somewhere else. Starbucks will certainly pour your espresso over ice if you want it. if you like your espresso poured in a glass of OJ, your taste preference doesn't mean Murky Coffee should be required by law, custom, policy, the tenets of "customer service", or anything else to pour a shot of espresso into a glass of OJ and serve it to you. it's enough that that idea is repulsive to them, that they feel that will reflect badly on the quality of their product, even if it's no trouble at all for them to do it.

i won't deny that Murky went a little too far here... i think that their attitude was unwarranted, at the very least. you can be polite about everything, saying that you don't serve your espresso over ice, that you're sorry, and that it's store policy. don't be demeaning as if the customer is stupid or wrong for having the preference they have. be polite but firm that it's not something you recommend, but leave it at that. and if you have to, suggest that you will give them a cup of ice and an espresso (which is what the store did), or remind them that they can go to Starbucks down the street if they want to.

so, i support Murky in principle... just not in execution.

suspended, indeed

well, it has been... 13 months. i briefly created a beer-themed blog (beerjd, as i called it) in the interim, but that was abandoned rapidly, for several reasons, mostly a growing interest in learning about wine. i'll probably always find most of my motivation in technology law and policy, though, and in everyday observances of the world.

a very brief recap of events since June 1, 2007, to be followed by a more substantive post (or two). the bar studying process was one of the worst periods of my life, but the exam itself wasn't the end of the world (even though i barely slept during those nights out of anxiety), and i passed on the first try, so all's well that ends well? i worked for 10 months as a government honors attorney in DC and i was very happy with it. but then i got a great opportunity to do a "dream job", at least for my background and interests, so i chased it and got it, and will be starting soon. i have a steady and serious girlfriend, which makes everything else in life better. i'm blogging from a black 13" Macbook, having shelved my long-beloved (and 4 year old!) Dell X300 to escape from the Microsoft hegemony. [and, yes, to substitute instead the Apple one... but, what can you do...] i think that's about it.