COPYCENSE

This week provides a double dose of Clippings, as other obligations kept us from posting last week’s edition. This week’s edition features an editorial on the H-P leak investigation scandal.

Article of the Week

In lieu of an AoTW, we’ve decided to comment on the H-P leak investigation scandal.

One thing you may notice about this edition of Clippings is the relatively light coverage of the H-P leak investigation. To briefly summarize, H-P (formerly Hewlett Packard, a name virtually synonymous with computing and Silicon Valley) has been fighting back the proverbial S storm of bad publicity after reporting has revealed that company executives authorized a rogue operation designed to identify the source of press leaks that occurred shortly before the company’s board fired former chief executive officer Carly Fiorina. The business press has been “shocked, shocked” that one of the most venerable names in American business, which also is one of the world’s largest technology companies, would authorize spying and possible “pretexting” in order to find identify the leaker.

(“Pretexting” essentially is pretending you’re someone else as a means of acquiring or getting access to data. It’s a technique used by hackers all the time.)

Of course, we have a theory about why this has become a significant story at all. The business press has made this a story because it involves the business press, and reporters can rant about how they’ve been wronged. As reporters have unearthed more details about the operation, they have discovered that in the process of getting this information, H-P essentially was investigating the press as much as it was investigating the leak. Reporters get very uppity when they are being investigated, instead of doing the investigating.

Here’s something obvious about leaks that few confess: for a leak to be effective, someone with private, often confidential information has to be willing to spill the beans, and a member of the press has to willingly and knowingly agree to divulge that information to the public. In other words, reporters are as integral to the leak as the person with knowledge of private, often confidential information.

Again, this seems obvious, but why is it we rarely hear about reporter and media outlet complicity in unearthing private information? Isn’t the act of making private information public as problematic (perhaps immoral) as divulging that information in the first place? Something that continues to amaze is is the halo of credibility and (dare we say) moral righteousness that follow San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada. Williams and Fainaru-Wada are the reporters that published leaked grand jury testimony in the Chronicle and in the book Game of Shadows. According to federal law, it is illegal for most people associated with the federal grand jury process to divulge the contents of grand jury testimony.

In other words, Congress has decided that grand jury testimony in a federal trial or investigation is supposed to remain secret. Now, we’re loathe to blindly follow our Congress, but this rule seems to be in place for a good reason. And it is a rule that has worked relatively well. If this is the case, then how is it that two reporters who published (and likely solicited disclosure of) secret federal grand jury testimony are hailed as great reporters — patriots, even — for unearthing a story that is the best interests of the American public? No, Williams and Fainaru-Wada were accessories to a federal crime and should go to jail.

The reporters in the H-P investigation seem to want to imbue themselves with the same halo of righteous credibility that has illuminated the acts and reputations of Williams, Fainara-Wada, former New York Times reporter Judith Miller, and a host of other reporters who break law or ethics in the name of trailblazing journalism. Again, there are two sides to a leak: the leaker, and the person who decides to leak. And inordinately, the person who decides to leak does so primarily — if not exclusively — because of self-interest, not because there is a story that is critically important to the country and its citizens.

The business press corps has made this H-P incident into a “big story” as much because H-P executives dared to investigate the press as it is because of what H-P did. We just wish the corps would stop whining. If you’re in the leak reportage game, what’s good for the goose should be good for the gander.

Quote of the Week

Tom Espiner. British Library Calls for Digital Copyright Action. News.com. Sept. 25, 2006. “Unless there is a serious updating of copyright law to recognize the changing technological environment, the law becomes an ass,” so says Lynne Brindley, CEO of the British Library. We couldn’t agree more, but the way the American copyright law currently is updated skews so much toward privatization that one could reasonably wonder whether no updates are better than the industry-sponsored updates.

Clippings

• Jon Healey. What’s Holding Up Movie Downloads. LATimes.com. Oct. 1, 2006. This is repeat of Rob Pegoraro’s column, which was our AoTW two weeks ago. Again, the L.A. Times shows it is unafraid to skewer Hollywood over its lazy business practices.
• Damon Darlin. H.P., Red-Faced but Still Selling. The New York Times. Oct. 1, 2006. See our commentary above.
• Siva Vaidhyanathan. Copyright Jungle. Columbia Journalism Review. September/October 2006. Vaidhyanathan writes about media coverage of the copyright wars, a theme K. Matthew Dames also covers in “Framing the Copyright Debate,” which is published in the September 2006 issue of Information Today.
• Victoria Shannon. U.S. Loosens Its Control Over Web Address Manager. The New York Times. Sept. 30, 2006. On the surface, it seems proper that the American government begin to cede control over the domain name system. Even though much of the development of the Internet has U.S. origins, the Internet is — and always should be — an international network that is beyond the actual or de facto control of a single nation. Perhaps the only thing worse than the Internet being controlled by American government, though, is for the Internet to be controlled by private corporations. According to a companion WashingtonPost.com story, corporate control over the domain name system is likely to succeed the end of the most recent renewal of the cooperative agreement between the Commerce Department and the Internet Corporation for Assigned Names and Numbers (ICANN).
• Saul Hansell. YouTube’s Video Poker. The New York Times. Sept. 30, 2006. You know you matter in media when you get the invite to Allen & Company’s annual Sun Valley retreat. YouTube’s Chad Hurley just got his first invite.
• Steve Friess. Pod People Ponder Litigation. Wired News. Sept. 29, 2006. Underneath all of Apple’s outward manifestations of cooperation and sharing lies a tremendously competitive (and one might add slightly paranoid) company. Apple sagely identified the move toward consumer-generated content, but unfortunately several of its business moves over the past year — remember the leak lawsuits — suggests it will engage in typically corporate behavior in order to preserve its competitive advantage. What an irony: the company that champions DIY media is also the company that seeks to control the direction in and pace at which the DIY media movement evolves.
• Kate Norton. Google in Tussle for Digital Rights. CIO Today. Sept. 28, 2006. It should be no surprise that news outlets are fighting Google tooth and nail over alleged unauthorized reproduction of its content. (Google also is fighting Agence France Presse over a similar issue.) While Google issued its own spin on content, what is interesting about this ruling is that it reminds us that not everyone is enamored of Google (especially, it seems, Europeans), and that copyright is not a strictly American concept.
• Ars Technica. Royalty Agreement Reached for U.K. Digital Music Downloads. Sept. 28, 2006. “Those who remember the shift from cassette tapes to CDs will recall that during that transition, packaging cost savings were not passed on to the artists (or indeed, to the consumer) either. The music industry has shown itself to be slow to change, but will the transition from CDs to digital downloads prove to be any different from previous shifts? So far, it is looking like more of the same.”
• The Patry Copyright Blog. Grokster Remand Opinion. Sept. 27, 2006. William Patry, expectedly, weighs in with insightful analysis about the appellate court’s fact-dependent decision. (.pdf) What’s special about Patry’s commentary, however, is his confirmation that inducement now is an official liability standard, and his opening comments that refer to the economics of copyright litigation.
• Marie Jackson. Virtual School “Beats Real Thing.” BBC News. Sept. 27, 2006. With advances in technology and a generation of increasingly technology literate students and instructors, virtual education will become standardized instead of an anomaly. What will be interesting is how the law follows, particularly amendments to legislation such as the TEACH Act. 43(b)log. Kozinski on Fair Use and Injunctions. Sept. 27, 2006. Rebecca Tushnet’s reportage of “Fair Use Revisited,” as speech by Ninth Circuit judge Alex Kozinski. American University’s Washington College of Law has a Webcast available for viewing.
• Bit Player. The Current Shifts Against StreamCast. Sept. 27, 2006. The federal case against StreamCast, the parent of file-sharing program Morpheus, applies (.pdf) the inducement standard the Supreme Court articulated in last year’s MGM v. Grokster decision. This is not news. What is noteworthy, however, is that this post comes from a Los Angeles Times-sponsored blog that chronicles “Hollywood’s love-hate relationship with technology.
• Ars Technica. Congress Looks at P2P in Academia. Sept. 27, 2006. With all due respect to Ars, which is a wonderful publication, this article really should be entitled “The RIAA Looks at P2P in Academia, And Congress Complies, Since Either It Doesn’t Know How to Challenge Big Music’s ‘Studies’ or Intentionally Avoids Doing So.” Perhaps more than anything, consumers, librarians, and educators need some person or entity with the skills to analyze Big Content’s methodology, and, preferably, put that methodology into context. (Fortunately, Ars itself took issue with Big Music’s latest piracy numbers.)
• Michael Hickins. IBM Pushes New Patent Policies. InternetNews.com. Sept. 27, 2006. At its core, this seems like an interesting way for the world’s most prolific patent filer improve the process. We see, however, at least one possible ulterior motive. This could be a way for IBM to control the pace of innovation.
• Eric Lach. Copyright Check: Students Required To Comply. The Wesleyan Argus. Sept. 26, 2006. This story proves that Big Music officially has gotten higher education to do its bidding on the copyright front. One would think that universities would figure out a way to stare down the content industry to come to an equitable truce.
• Jim Abrams. Congress Moves to Protect Trademarks. SeattlePI.com. September 25, 2006. Congress passes the Trademark Dilution Revision Act of 2006 (H.R. 683), which effectively overturns the Supreme Court’s 2003 ruling against Victoria’s Secret, which filed trade infringement and dilution claims against an Elizabethtown, Ky., adult novelty shop originally named Victor’s Secret.
• Cornell University. Cornell University and Publishers Announce New Copyright Guidelines Governing Use of Digital Course Materials. Sept. 19, 2006. We assiduously avoid reporting on press releases because they don’t constitute news, but this release from Cornell is important because we believe it signals Big Publishing’s attempt to circumvent both the Section 108 and Section 110 exceptions. The press release notes that the new guidelines “govern the use of electronic course materials on the library’s electronic course reserves system, on faculty and departmental web pages, and through the various ‘course management’ web sites used at Cornell” and “affirm that the use of such content is governed by the same legal principles that apply to printed materials.” Like the broadcasters’ attempt to ram Webcasting protections through the treaty process, we believe this an attempt to bypass federal copyright law thorough a private agreement between private actors. The American Association of Publishers has been clanging swords over e-reserves for at least a year, and now it gets a major Ivy League institution to sign off on this sort of agreement. And if the “guidelines” are consistent with copyright law, why are they necessary at all? This seems extraordinarily fishy.
• SiliconValley.com. Gonzales Calls for Law to Require ISPs to Preserve Customer Data. Sept. 19, 2006. We’ve discussed this before, but what’s notable about this story is the following quote from Attorney General Gonzalez: “We respect civil liberties, but we have to harmonize this so we can get more information,” he said in the story. It seems that even the country’s top legal officer has adopted copyright doublespeak.
• Ryan Blitstein. YouTube Inks Deal With Warner. MercuryNews.com. Sept. 19, 2006. This is the first of many deals you can expect YouTube to ink with media companies as it tries to avoid getting sued into oblivion. The question is how will YouTube preserve itself despite the deals?
• Ars Technica. From Vinyl to Silicon. Sept. 12, 2006. Ars publishes a great review of contemporary DJ software. Had we not gotten on our soapbox over the H-P issue, this likely would have been our AoTW.

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