There was a bit of an embarrassment in the ongoing patent dispute between Oracle and Google. Oracle, of course, is claiming that Google's Android violates some of the patents it acquired from Sun concerning Java. Google pointed out that if its use was so problematic, why did Sun celebrate Google's Java usage in Android? They pointed to a blog post from then-Sun CEO Jonathan Schwartz (who was the first Fortune 500 CEO to blog -- and who, unlike many corporate bloggers, actually spoke his mind on the blog), which happily celebrated Google basing Android on Java/Linux: Of course, that looks bad for Oracle... so it's response was to delete Schwartz's entire blog. Poof. That moment of history gone. Except if you have access to the Internet Archive's Wayback Machine. No wonder the Internet Archive has been declared a rogue site dedicated to infringing activities.

I imagine that Oracle also wanted to erase other former Schwartz blog posts, like the one we spoke about years ago, in which he pointed out that suing over patents is a sign of desperation and that real companies innovate, rather than litigate.

Now, many of you who will be quick to point out that none of that matters. Oracle holds the patents now and so it gets to decide. And that's true -- though I do wonder if such promises not to litigate over patents and to celebrate such usages might be seen as a form of a license... But, the larger point I wanted to raise is that this shows the dangers even of defensive patents. Sun held a ton of patents, almost all of which were for defensive reasons (or to just show what a joke the patent system is). And yet... now that Oracle has them, it can and is using them to try to shake down other companies.

A short while ago, we were openly discussing how not to hold an open discussion in the free air of the internet. It was a highly editorial post, stating my (and apparently, others') disagreement with the view that the "high road" is composed of off-hand insults and closed comment threads.

With that in mind, I bring you another blogging faux pas, courtesy of the Copyright Alliance blog. In a post titled "Setting the Record Straight on PROTECT IP," Sandra Aistars takes aim at an article posted elsewhere on the web:

Since the introduction of the PROTECT IP Act we frequently see articles and blog posts that severely mischaracterize and make false assertions about the legislation. For example, today we noticed a piece that claimed that the PROTECT IP bill would be a detriment to entrepreneurship. As an organization that represents individual artists and creators, who are themselves entrepreneurs and small businesses, we share the author's concern for entrepreneurship and economic growth. The creative sector in the United States, which is comprised largely of people you would consider the copyright owner next door, accounts for 11.1 million jobs across the country. Unfortunately his portrayal of the PROTECT IP bill is factually inaccurate in virtually every respect.

This is quoted verbatim. If you haven't noticed by now, there are no links to the original article or any mention of who wrote it. Considering this lack of information, Aistars could be talking about something her neighbor wrote and shoved under her door for all we know. In this day and age, I don't see how you can expect to tackle someone else's arguments without at least mentioning their last name.

It's a shame, too. Aistar's post does a fairly good job laying out her disagreements (even if I don't agree with all of her disagreements) in a very easy-to-follow point-by-point argument. (Although, she does spend more time than is needed pounding home the point about the bill addressing only sites dedicated to infringement, which according to the beneficiaries of this law include archive.org, Vimeo, Soundcloud and 50 Cent's personal website.) The problem is, no one knows who she's arguing with and even worse, nobody can verify whether this mystery person made the claims she's attributing to them.

It would seem that linking to the original article would be second nature... unless you're trying to avoid people actually reading what you're arguing with.

If you're confident in your argument, why wouldn't you link to the article? Techdirt disagrees with pretty much everything and yet, every post links to the source of disagreement. But the more Aistar calls out "the author" as a nameless, linkless being, the less inclined most people are to believe that her piece is even-handed.

If you haven't Googled up the solution to this "mystery writer," I'll go ahead and provide you with the link that the Copyright Alliance apparently couldn't get coded in by presstime:

"Blacklisting Entrepreneurs: PROTECT IP Could Harm Web Startups" by Paul Kedrosky 

Of course, it's no use rushing to the Copyright Alliance blog to ask why this was handled this way. The comments are closed and pingbacks have been politely asked to leave. Ironically enough, Copyright Alliance did take the opportunity to exercise their one-way rights and leave a comment on Kedrosky's post, which takes this whole situation past "obtuse" and into "egregious." Since I told myself that I'd be very even-handed in dealing with this bizarre breach of internet etiquette, I'm ending this post now and opening it up for discussion. Have at it.

 

Last year, we wrote about the FBI threatening Wikipedia for having the FBI logo on its site. Wikipedia, thanks to its General Counsel Mike Godwin (of Godwin's Law fame), responded with a wonderful snarky reply. While the FBI backed down, it does not appear that the administration got the message that there are situations in which a website might post federal logos and not break the law. The latest involves the White House, who apparently got upset that blogger Keith Cowing (of SpaceRef.com -- a blog about science/space policy) included the White House logo in his post about a meeting of the President's Council of Advisors on Science and Technology. In response, the White House actually called Cowing and demanded he take down the logo. In case you're wondering, this is the logo: Now, this is a perfectly reasonable use of the logo. We're discussing it, and it's relevant to the news story. It was also relevant to Cowing's post. The issue that the White House has is with 18 U.S.C. sec. 701, which is designed to prevent someone from falsely passing themselves off as working for the government by misusing such a badge. Posting the badge on a website where it makes sense clearly does not qualify. No one was reading that blog post thinking he represented the White House. The White House also mentioned the "proximity to advertising," suggesting they were afraid that it would be seen as being associated with the White House. However, as the EFF notes in the link above, that's a pretty ridiculous interpretation:

Cowing's use isn't deceptive either. The seal is plainly used in conjunction with the news article and the advertisement is no closer on this blog than ads are on news websites and in most newspapers and magazines for that matter. In fact, the seal of the Executive Office of the President of the United States is used extensively all over the internet, sometimes even in promixity to advertising. Threatening phone calls from the White House only serve to chill free speech. Indeed, Cowing has replaced the image of the seal with a pixelated version and the words “OSTP Logo Pixelated Due to a Phone Call Complaint from the White House.”

Finally, we agree with the EFF in noting: "surely the White House has better things to do than to threaten bloggers engaged in legitimate free speech."

Denial of service attacks are a pain, but they happen. In many ways they're becoming one way that people protest against powerful people and organizations -- and some have discussed how many are effectively the equivalent of a digital sit-in. Of course, it's no fun to be on the receiving end of a DoS attack, and if you're in a position of power, it isn't surprising to react angrily to such an attack. But it does seem a little out of proportion for Russian President Dmitry Medvedev to demand that Russian law enforcement officials look into the reason why his LiveJournal blog was taken offline for a whole hour due to a denial of service attack.

"I have received many appeals in connection with the ... attacks on LiveJournal. As an active user of (LiveJournal) I consider these actions revolting and illegal.... What has occurred should be examined by LiveJournal's administration and law enforcement agencies."

Of course, it does seem a bit strange that he's only concerned about denial of service attacks when they impact him personally. Also, LiveJournal? Isn't that kinda like if President Obama had a blog on Blogspot? It's not that hard these days to have a blog on your own domain...

The Groove Tiger alerts us to the news coming out of Peru, of a blogger, Jose Alejandro Godoy, who has been sentenced to three years in jail and fined over $100,000 (Google translation of the original Spanish) for writing a blog post about a Peruvian politician, Jorge Mufarech. The post linked to various news reports of criminal charges made against Mufarech in the past, and Mufarech claimed that such links were defamatory. Godoy pointed out that the information he wrote about was well-sourced and came from others, and also that he had offered Mufarech a right to reply, if he wanted it. Yet, the court still found him guilty of criminal defamation, leading to the jailtime. Godoy is appealing, but just the fact that the case has gone this far should be seen as quite troubling.

Eric Goldman points us to a new lawsuit filed by a law student against Google over allegedly defamatory blog posts. The student also sues the individual who made the posts, but the inclusion of Google in the lawsuit is the odd part: As Goldman (who teaches cyberlaw) notes, perhaps this student should take a cyberlaw class, in order to better understand liability and safe harbors, such as Section 230 when it comes to defamation claims.

We've seen all sorts of arguments by folks who felt defamed to get around Section 230 safe harbors that say a service provider isn't liable for the content created by a user -- but this is a first: a woman is suing Google, claiming that the safe harbors don't apply, because the allegedly defamatory content comes from a blogger who is now deceased, and thus she cannot go after him to get him to remove the content. Thus, she claims, her only choice is to sue Google. As Eric Goldman points out in the link above, it's not clear this is true at all. The guy's assets clearly passed on to someone -- so someone must own the rights to the blogpost, whether they know it or not. It's difficult to see how a court would find Google liable, no matter what. However, as Goldman also notes, it would seem that there would be many more effective ways to have this content disappear if it was really an issue.

We've been pointing out that just because journalism is moving away from print newspapers, it doesn't take away from investigative journalism, at all. In fact, we've seen how there are a number of new online investigative journalism operations that are moving in to pick up the slack. In fact, in the sports realm, it's been pointed out before that the best sports journalists are getting snapped up left and right (for much higher salaries) by the various online entities, and they're still doing tremendous investigative reporting work. Just last week, Dan Wetzel and Adrian Wojnarowski, both well-respected sports writers with pretty long resumes in the field, broke a story about how UConn had violated recruiting rules.

It had everything that a typical investigative report should include. It involved a six-month investigation, and the amount of background and detail is quite impressive. It's exactly what an investigative report should be, even if it was published only online and there were no subscribers who had to "pay" to make it happen. It seems to pretty clearly disprove the idea that the only way to fund investigative journalism is to have it paid for by subscribers. That's never actually been true in the past, but it's even clearer with this story.

Still, perhaps the most ridiculous part of the story, as pointed out by one of our readers, Dave, is that the basketball coach who was implicated for recruiting violations in the story, Jim Calhoun, decided that, rather than respond to the allegations, he could dismiss them entirely because they appeared online only:

It was a newspaper story that ... it wasn't a newspaper, I'm sorry. It was a blog story that appeared, I guess, in something I probably can't get a hold of, which is Yahoo! And very simply my comments are what I said.

So, this guy thinks that since the publishing of an in-depth investigative report happened in an online only source (a) it's obviously "a blog story" (even though it wasn't) and (b) it can be waved off. Of course, now that the story isn't just appearing on "a blog" -- it's appearing in the NY Times and the NY Daily News and the Boston Globe, among many other print newspapers -- maybe he'll admit that perhaps it's an issue?

Investigative reporting is investigative reporting, whether it happens online or in a newspaper. Journalists (and investigation subjects) who ignore that do so at their own peril.

It's quite common these days for people to "live blog" or "live Twitter" different conferences or events they're attending, filling in others what's happening in near real time. However, what happens when someone does that in a college class? Already, there are some professors struggling with the fact that students use the internet during class, but they're not at all happy about the idea that they might not just be using the internet to surf around -- but to report to others what's happening inside the classroom. The issue is discussed in detail by Mark Glaser in his latest MediaShift column after an NYU professor told her students to stop blogging or Twittering things about her class.

The controversy apparently began when a student in the class actually wrote a guest "embedded" column for MediaShift a few weeks ago, complaining that NYU's journalism school wasn't up-to-date on teaching students about social media and the new tools of journalism. The professor in the class she talked about wasn't particularly happy about the article, which was then discussed in the class itself (very meta). According to students in the class (and the author of the original piece), the professor made it clear that they were no longer to blog, text or Twitter about the class, or to quote the professor without permission. Considering the class itself is called “Reporting Gen Y," that seemed like an odd restriction.

The professor differs on what she told the students, saying that she only meant they couldn't blog or Twitter during the class, but were free to afterwards. However, she stood by the comment that she shouldn't be quoted without permission. Glaser investigates the legality of this, and how it fits with NYU's journalism standards. That said, it is a little odd that it's perfectly fine to quote or blog about conferences or other events, but once you're in the classroom, a cloak of silence is expected. To some extent, this sounds like it may just be a generational issue. Perhaps it's the actual Gen Y'ers who should be teaching the class on Reporting Gen Y.

It was really disappointing, if entirely understandable, earlier this year when the until-then-anonymous "Patent Troll Tracker" had to shut down his blog. Prior to that, it had been one of the only sources (and in some cases the only source) to report on some important cases and trends in the patent world. Unfortunately, it appears the same thing is now happening in the copyright world. William Patry, recognized around the world as an expert on copyright, has shut down his blog. Tragically, he didn't just stop writing it, he's deleted the entire archive -- so even posts of his that we pointed to just last week no longer are live. This is really unfortunate -- and there seems to be no reason he couldn't have allowed the archives to live on.

As for the reasons for shutting it down, his first is that he was sick of people taking the word on his personal blog as the position of Google, since he works there. When he started the blog, he did not work there, and since he joined the company he was quite explicit about that fact and never commented on cases or stories that involved Google or even other cases involving companies involved in lawsuits against Google. However, too many people would take what he said as the "word of Google," unfortunately.

Much more importantly, however, he notes that writing about the state of copyright these days has become "too depressing." This should really open some eyes. Patry has always been a supporter of the copyright system. But he's become depressed with how the system has been changing, such that he finds himself constantly writing about changes or abuses of the system. Even (as he puts it) being a "centrist" on copyright issues, he's seen how far in one direction certain interests are trying to pull copyright, and it means he's constantly pulling hard in the other direction, making him seem less like a centrist and making him depressed for having to write so negatively about things happening in the copyright world.

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent. I have tried various ways to leaven this state of affairs with positive postings, much like television news shows that experiment with "happy features." I have blogged about great articles others have written, or highlighted scholars who have not gotten the attention they deserve; I tried to find cases, even inconsequential ones, that I can fawn over. But after awhile, this wore thin, because the most important stories are too often ones that involve initiatives that are, in my opinion, seriously harmful to the public interest. I cannot continue to be so negative, so often. Being so negative, while deserved on the merits, gives a distorted perspective of my centrist views, and is emotionally a downer.

This should be a huge downer for everyone else as well. While Patry and I disagreed about the extent of reform needed in copyright, he is one of the sharpest minds on any issue having to do with copyright, and having him silence himself means that the forces he was sick of fighting -- those who are constantly stretching and abusing copyright -- have just won yet another battle. That makes it that much harder for the rest of us to stop certain industries from continuing to stretch, twist and abuse copyright, not for good reasons, but merely to prop up their own obsolete business models. One hopes that others in the field will step up and help prove to Patry and others that this isn't too depressing -- and that this is a battle that can be won -- but no one will be able to fully replace his regular insightful opinions on the subject.