John Palfrey

During our weekly fellows’ discussion at the Berkman Center, the conversation turned to a series of issues related to information quality. (This turn of events is not surprising, given who was in the room.) Wikipedia, not surprisingly, cropped up as a topic early and often. One of the examples (good, bad, indifferent?) that David Weinberger raised was the controversy over how Alexander Hamilton’s disputed birthdate is presented (now, accurately in my view, the entry notes that there are two possible dates, one in 1757 which Hamilton himself claimed and an earlier date in 1755 which current scholars seem to prefer).

Which led me to check out the rest of the entry on Hammy. It’s really quite good overall. I’m a huge fan of Wikipedia and am so grateful that it exists. That said: my critique of this entry is that it is spotty. It is neither consistently strong nor consistently brief. Some topics are covered nicely and others not at all. Missing, in particular: discussion of Hamilton’s most famous report to Congress, the 1791 Report on Manufactures, the fourth major report he sent along to the legislature while he was Secretary of the Treasury in the Washington administration. It was this Report that led to the implementation by Congress of a large range of policies supportive of the American industrial state, and it is a classic now in political economic circles. Economists are interested in it for loads of reasons, not least Hamilton’s proposal of “bounties”. (I tried to add in some of this info, but couldn’t get through on the wiki to edit it; perhaps someone else can try at a better time.)

And then I tried to find a link to the full text of the Report itself elsewhere on the Web. Ten minutes of — perhaps clumsy — web surfing, mostly using Google and also Google Scholar and a few other similar resources, led me to plenty of excerpted versions, but no complete text. How hard would it be to load up the complete version of such a seminal work? This could be a wonderful job for Google Scholar or the like: make available a reliable, complete version of Hamilton’s Report on Manufactures and thousands of other documents that have changed history. I’m sure someone out there has it online, but it’s way too hard for someone, even someone who knows what he’s looking for and spends a lot of time on line, to find.

Aside: are you a Hamilton person or a Jefferson person? I am Hamilton.

Here’s Jim Moore, reflecting on the Iraq/Dean/Sudan campaigns he’s been involved in for the past few years:

“My hypothesis today is that we succeeded at establishing new memes and
new meme-based worldwide communities–and that to the extent our memes
were picked up and ‘established’ as topics in the major worldwide
media, as well as continuously supported in the blogosphere, we
actually made successful social change.

We did not make social change to the extent we hoped, but we did establish important beachheads that can now be built upon.

Perhaps change takes at least these stages:  1.  create
shared awareness of the problem, and pressure for action, 2.
demonstrate the lack of responsiveness in established institutions,
3.  create such shared awareness of the lack of responsiveness in
established institutions that there is pressure for institutional
change, 4.  support true reform movements, as well as creative
competition, and start to change the status quo, 5.  build shared
support–super buzz–for the new developments planted in #4, such that
these become realities on the world stage.

Perhaps a major value of the blog campaigns for Iraq, Dean, and Sudan
was to put problems on the table  The stop-the-invasion-of-Iraq
campaign, the Dean for America campaign, and the stop the Sudanese
Genocide campaign all took issues that had a constituency but little
voice, and created a larger, activated at-critical-mass-constituency,
and lots of VOICE.”

I look forward to testing out this and other hypotheses at the Internet & Society conference in a few weeks.

Susan Crawford has a wonderful, long-plane-flight inspired post
about two books coming together.  “So, add the two together: 
what’s the best way to govern a complex network that is
self-organizing, emergent, subject to power laws, and living on its
own?  The Santa Fe [Institute] founders would say, ‘Watch it with
care, but don’t pretend that you can predict its course or channel its
development.’”  This reminds me of the Berkman Center on its best
days, too (though I’m not sure the power law thing applies exactly).

We are nearly settled on our final schedule for the Internet &
Society ‘04: Votes, Bits and Bytes.  The final, inevitable changes
are still happening at the margins, and we’re still collecting speaker
bios and the like, but check out the near-final schedule and the near-final speakers line-up. 
Each day has something a bit different: Thursday night in the Kennedy
School’s glorious Forum, Friday is the full-day plenary
panels-and-keynotes, and Saturday is in the un-conference style of the
first three BloggerCons.  I am extremely excited about how things
are coming together.  If you have not registered and plan to come,
please do so
– it’s free, but it’s also first-come, first-served and we’re within
striking distance of cutting off registrations.  At the pace of
registrations we’ve been at, we’ll be moving to a waiting list early
next week.  See you in December, I hope!

A pornography publisher, Perfect 10 – I’m sure you could find it if even I don’t link to it! —  filed suit in federal district court in California against Google and 100 does yesterday on Friday, November 19, 2004, according to the complaint (I have redacted the complaint to remove pages 36 - 54, which include graphic images).  Perfect 10’s 12 claims listed in the complaint include alleged infringements of copyright, trademark, and right of publicity as well as unfair competition.

On a quick read, I’m not sure how the plaintiffs will distinguish their complaint regarding direct infringements with respect to the thumbnails of Perfect 10’s copyrighted images rendered by Google from the way that the Kelly v. Arriba Soft court handled it.  The Kelly court found that the search engine made by Arriba Soft (now called Ditto.com) did not infringe the copyrights of a photographer whose works were included in the visual search engine results so long as the works were rendered by the search engine as “thumbnails,” rather than as full-size and full-resolution images.  (To be exact: “We hold that Arriba’s reproduction of Kelly’s [the photographer’s] images for use as thumbnails in Arriba’s search engine is a fair use under the Copyright Act.  We also hold that Arriba’s display of Kelly’s full-sized images is not a fair use and thus violates Kelly’s exclusive right to publicly display his copyrighted works.”)

In general, the trademark claims and the right of publicity claim seem similarly hard to make out as against previous challenges to search engines.  Courts have generally seen search engines as serving a public interest and have tended to afford them certain leeway as a result, at least whenever a balancing test is involved, as it is in the fair use analysis on most of the relevant copyright claims.

What’s intriguing about Perfect 10’s claims, and I suspect their best shot at differentiating their claims from previous assaults on search engines, is the way they’re trying to hook nearly the entire set of claims on (in a general sense) the notion that Google gets adwords revenue thanks to the porn company’s content that’s been copied and distributed on “stolen content websites” who in turn pay Google (so one would presume from the complaint, anyway) for click-throughs — see paragraphs 27 - 34, then claims 2 (contributory infringement of copyright) and 3 (vicarious infringement of copyright) and the subsequent trademark, unfair competition, and right of publicity claims. 

In short, Perfect 10 says: Google is profiting — a lot — from the bad acts of others and they should stop doing it and pay us for what they’ve done.  Unpack the logic and it gets tortured pretty quickly (I’m sure Perfect 10 has *never* gotten any of its purported 100,000 unique visitors per month from Google nor have any of them paid the $25.50 per month for access), but the gist of their argument is plain.  I suspect that Perfect 10 will not be the last to go after Google’s riches with such a series of claims.

It might turn out to be interesting to see how the district court — if the case ever gets to trial — will think about the 4th factor in the fair use defense in terms of the definition of the “potential market.”   Consider what the Kelly court said about Ditto.com’s thumbnails: “Arriba’s use of Kelly’s images in its thumbnails does not harm the market for Kelly’s images or the value of his images. By showing the thumbnails on its results page when users entered terms related to Kelly’s images, the search engine would guide users to Kelly’s web site rather than away from it.” While the fair use analysis in the Perfect 10 case might be the same or substantially similar on the question of how transformative the use is of the copyrighted work, the analysis of its effect on the “market” — depending on how that’s defined — might be different.  Or so it would seem the Perfect 10 lawyers would like you to believe.

Jonathan Zittrain, in e-mail conversation, raised the issue of how the DMCA safe harbor, and even CDA Section 230’s safe harbor, might fit into the mix, especially with relation to the pendant state claims.  JZ points also to Utah Lighthouse as relevant to Perfect 10’s claim.

I expect that there will be lawyers lining up to represent Google, if they choose to fight back.  And no small numbers of us interested in filing amicus briefs, should it get so far as that.

P.S.: One small irony (or perhaps not so ironic): all the chatter about this case and newly created links to Perfect 10 might raise its Google PageRank.  And no doubt add to the *terrible* dilution about which Perfect 10 complains.

RedHerring, the LA Times, Copyfight, ThreadWatch.org, SearchEngineWatch, and Platinax Internet have more.

Ernest Miller’s interview of Jeff Jarvis at Copyfight (first in a series, it appears) is an instant classic. 
I like it most because it is extensive enough to connect up a series of
issues that are obviously related but which are often discussed in
isolation: digital media (often discussed just as music and movies);
the movement from consumers to creators; the effect of these changes on
journalism, politics, advertising, and ourselves; and what those in
traditional industries can in turn teach the blogger and other citizen
creators.  As a bonus, from the academic corner: without trying
too hard, he answers the question: “so what is semiotic democracy
anyway?”  Jarvis’s responses, woven together, are a synthetic (in
the best sense), compelling look into our near-future together.

A (positive) step forward today in establishing a rational regulatory scheme related to Voice-over Internet Protocol.  As the FCC’s news release makes plain, the 5-0 decision means that Vonage’s Digital Voice service will not be subject to state public utility regulation.  The FCC will consider its own regulations, of course, presumably related to 911 services among other things.  The Merc has more.

Congratulations to the organizers of a successful BC III.  We’re looking forward to a follow-up conversation about what was learned at BC III at the upcoming Internet & Society 2004: Votes, Bits and Bytes conference in a Saturday session with Dave Winer, in conversation with Mary Hodder and Doc Searls (invited).  We want to be sure to keep the conversation moving ahead.  (The conference is free, and registration is now open.)

Dave Tressler reacts to cybercrime, spam, and IP recent news.  He argues: “As technology advances and provides opportunities for people to take advantage of digital entertainment and email, the law is playing catchup, either as criminal prosecution of spammers (which won’t stop spam) or civil lawsuits against a relatively small number of those illegally sharing copyrighted movies or music.”

It will be intriguing to see who keeps blogging and who doesn’t after the election.  Sounds as though Mr. Soros intends to keep at it, at least in some form.