In June, we wrote about a troubling ruling from a magistrate judge, ordering an ISP, Skybeam, to identify an anonymous Wikipedia editor, who wrote stuff that the company Faconable objected to. While Skybeam was fighting this order, Faconable was able to work out a "settlement" with the anonymous John Doe and filed a notice of voluntary dismissal. In response, Skybeam still wanted the original order to identify users vacated, noting that even if it didn't have to do so, just having that ruling out there could represent a competitive disadvantage for the firm. Thankfully, the court did vacate the order, noting that "through no fault of its own, Skybeam has been denied review of the Magistrate Judge’s Order. Because Skybeam had nothing to do with causing its objections to become moot, it “ought not in fairness be forced to acquiesce” in the Magistrate Judge’s Order." This is good, because without that, such an order would have remained on the books...

NFL player Rashard Mendenhall is suing Hanes for dropping his sponsorship deal, after he said some controversial things on Twitter about the Osama bin Laden killing. Hanes points to a "moral clause" that was in its contract with Mendenhall. In response Mendenhall says that he should have a right to express his opinions. I can't see this going very far. Mendenhall certainly has a right to express his opinions, but none of that means that Hanes has to continue working with him. There's some argument that the morals clause is "broad and ambiguous," making it unenforceable, but that seems like a stretch.

Meek Barbarian informed us that veteran blogger Anil Dash wrote a piece recently discussing websites having open and anonymous commenting on their sites. I'll preface this with a quick anecdote. I discovered Techdirt some three years back when my boss informed me that, as a technology consultant, it would be useful to follow a couple of technology related blogs to keep up on what is occurring in the industry. I came across Techdirt, found an article I was interested in, and dove in. I was immediately drawn in by the comments section and the community. There were anonymous cowards bravely trolling the threads. There were other anonymous cowards offering up valuable statistics, links, and points of view. There were folks using funny names and cartoon pictures as their avatars, while others used what were apparently their real names and real pictures. Even the author of the article was diving into the comments and responding to some.

I saw information. I saw jokes. I saw supporting views and dissenting opinions. I saw trolls, academics, lawyers, techs, etc. etc. etc. It was true chaos theory at work, with the article setting up a comments section sensitive to the conditions discussed but open to the topological mixing of the wide open world. More than anything else, I think I was most amazed at how this tumultuous soup of free communication provided surprising and useful information, laughter, and references. I was hooked. This was the place for me to offer my view on stories I cared about, read responses from others, get opposing views, and most of all, make more phallic-related jokes than an Adam Carolla on meth.

So that was the background I brought when I read Anil's piece, which he conservatively and open-mindedly titled, "If Your Website's Full Of Assholes, It's Your Fault." Let's dive in:

"The examples are already part of pop culture mythology: We can post a harmless video of a child's birthday party and be treated to profoundly racist non-sequiturs in the comments. We can read about a minor local traffic accident on a newspaper's website and see vicious personal attacks on the parties involved. A popular blog can write about harmless topics like real estate, restaurants or sports and see dozens of vitriolic, hate-filled spewings within just a few hours."

I'll thank Anil here, because we immediately get to my baseline issue with this viewpoint. I read all of the above, hear all about how rudeboy knuckle-draggers will show up on the most innocuous article and scream racist nonsense, spout uninformed conspiracy theories, and call you the kind of names that would make Sam Kinison do that screaming thing he did, and all I can think to myself is so what? Words don't hurt unless you let them. I, as someone with an Irish background, can be called a dumb potato-farming mick, and I can ignore it. More importantly, the idiot that calls me that loses all credibility in the formed community. Even if he's anonymous, all such behavior does is provide a reason for the community to couch their faith in comments provided by ACs in skepticism. The community provides a reason to identify yourself, in the hopes that you'll be taken more seriously. In other words, from the chaos emerges order. And not an unnatural kind of order provided by head-in-the-sand policing and moderation. Assholes exist, both online and in real life. So what?

In any case, Anil prescribes us his wisdom-medication on how everyone should run their website:

"You should have real humans dedicated to monitoring and responding to your community."

I happen to agree. As does Techdirt, actually. You know who is dedicated to monitoring and responding to our community? Our community! As long as we aren't working from a supposition of "words can hurt," we see our community policing itself just fine. Trolls get called trolls, true. But I've seen dissenters stick up for Techdirt supporters. I've seen Techdirt contributors and those with like-minds stick up for dissenters and their opinions (I know this one in particular, because I make a point to do this, though I'm not the only one). ACs have a tougher road in the realm of credibility because of the way the community polices itself. Those with accounts and names have a tougher road because we have a comment history we have to own up to. It's as simplistic as it is beautiful. And it's all emergent behavior, meaning it's natural and not forced or faked. That's what open comments do: they create fertile ground for emerged behavior. And it's amazing how productive that is.

"You should have community policies about what is and isn't acceptable behavior."

Bullshit. And here's why: one man's asshole is another man's prophet. Who am I, or Mike, or anyone else to say what is acceptable and what isn't? Are there things that most can agree suck? Sure. Racism is just plain stupid and ignorant. What does a policy against racism do? Really? "Don't be racist, Techdirt community." Did I just end racism? Did I somehow change the minds of anyone who would read a racist comment and think of it as anything other than pure stupidity to be rebuked or ignored? No, I didn't. So why bother? Remember, words don't have any power unless we give it to them.

"Your site should have accountable identities."

No, it shouldn't. It should certainly offer that option. But I've seen value from both sides of the debate on this site coming from Anonymous Cowards. And I know that some of the folks that contribute anonymously here do so because they're afraid of real repercussions in having their names associated with their words. Does that make their words any less valuable? No, it doesn't. And would making some racist, trolling, or ignorant jackwad sign in with a name make his/her words any different? No, it wouldn't. So why bother with this at all? What's the upside?

"You should have the technology to easily identify and stop bad behaviors."

Again, unless it's just flatout illegal or automated annoyance, what's the point of this? I think we can all agree that a relatively intelligent spam filtering system makes sense, but that isn't the kind of "bad behavior" Anil appears to be discussing. He's talking about controversial speech. Who is getting hurt when someone exhibits "bad behavior"? And how do you define that? If the site is community driven, shouldn't they be the ones to decide what is "bad behavior" and respond accordingly?

"You should make a budget that supports having a good community, or you should find another line of work."

It isn't a matter of cost, it's a matter of reason. What's the point? You're killing off all the good you get from the anonymous and semi-anonymous chaos, and what are you getting in return? People don't have to hear certain words that make them itchy?

I apologize for repeating myself, but I can't say this enough: words do not hurt. They never do. When someone says something designed to inflict pain, you get to choose how to react and respond. If an anonymous coward calls me an idiot and my response is, "Nice argument there, captain logic", then what has that person accomplished? I'm not hurt, they've put themselves on display being a jerk, and the community at large will react accordingly.

Don't lock down your comments. Don't kill off anonymity. Don't pretend the trolls and jerks don't exist. Do the opposite. Open it all up and trust in your community to be smart enough to react accordingly. I know that's largely what occurs here at Techdirt and elsewhere.

And I can't tell you how thankful I am for it and for everyone here, from those that generally agree with us to those that don't. You're welcome here. Forever and always.

Paul Alan Levy has nicely summarized two stories about Texas moving to better protect free speech. The first involves the Texas Supreme Court overturning a lower court's ruling to deny a motion from a couple of anonymous bloggers whose identity was being sought in a lawsuit. There's a bit of confusion concerning Google's role in this, but the company seeking the identity of the bloggers claimed that Google had agreed to cough up their names (Google suggests a slightly different story), and the court said that since the discovery was between Google and this other company (PRK Enterprises), the motion to quash from the bloggers could be denied. Thankfully, the Texas Supreme Court felt otherwise.

The second story may be even bigger news. We've covered anti-SLAPP laws many times, including the effort for a federal law, somewhat modeled on California's anti-SLAPP law, which is considered one of the most comprehensive. However, it appears that a bill is moving forward with plenty of support in Texas to create an anti-SLAPP law there that isn't just modeled on California's law, but may go even further in protecting speech. I guess it's true that they really do everything bigger in Texas...

Rick Falkvinge points out that Sweden's Minister for Foreign Affairs, Carl Bildt, is defending internet censorship in a recent editorial responding to the concerns of some internet activists (Google translation of the original Swedish), who he says just don't "understand" the internet.

Bildt's point is that you have to ban the "bad flows" online, or else you have "anarchy." He claims that there are limits to free speech everywhere around the world, and it's perfectly acceptable to block certain forms of "bad" speech. The problem here is that it's not as easy as Bildt makes it out to be to distinguish "good flows" from "bad flows." And it's the sort of thing that is regularly abused by governments in promoting censorship. The Chinese government, for example, regularly claims that its Great Firewall is merely protecting citizens from bad or dangerous information. The problem that many people have is that governments given the power to dictate what is a "good flow" and what is a "bad flow," usually can't resist the temptation to take things that they just don't like or which weakens their own power, and designate them as "bad flows."

As we recently noted in discussing how infrastructure for freedom often looks exactly like infrastructure for piracy, distinguishing between these two things is not so easy, and almost any attempt to stop "bad flows" runs a serious risk of massively stifling important "good" flows as well. Separately, Falkvinge highlights that Bildt and others may be confusing freedom of expression and freedom of information:

As Niklas Dougherty writes, the key problem with Mr. Bildt's reasoning is that he is unable (or unwilling) to distinguish freedom of expression from freedom of information. Freedom of expression can indeed have some limits, though always post facto. The most famous example is that you can't shout Fire! in a crowded theater, but there are plenty of other examples: you can't distribute military secrets, people's medical records, et cetera.

However, the freedom of information is a different beast. This is the freedom to seek, fetch and research information and the expressions of other human beings unfettered, and has nothing to do with sending a message to any other human being. The freedom of information must be absolutely unhindered, with no exceptions. None. Not one. If you are cracking down on this, you are interfering with private correspondence and the right to partake of the ideas of others. Such behavior would also in sharp violation of the European Convention on Human Rights (article 8).

This is an important distinction, that I don't think that many people think about or consider when discussing these ideas. So, even if you are going to segment "good" information from "bad" information, you also need to distinguish expression from information itself.

We were just discussing how the DMCA interferes with political speech, and the EFF brings up another example. Apparently, John Kasich, who's running for governor in Ohio, put out a commercial that purported to show a local steelworker talking about how unhappy he was with the current governor, Ted Strickland. Strickland's campaign folks apparently realized that the "steelworker" was really an actor, and put together the following video, mixing in clips of some of the actor's other work: The video was put up on YouTube... and then it was taken down via a DMCA notice. Now, it wasn't by Kasich's campaign. Instead, it was by Arginate Studios, one of the studios that had used the actor in a film. That particular clip is exceptionally brief in the ad. As the EFF notes, this is so blatantly a case of fair use as to be ridiculous. Beyond the fact that it's a tiny snippet, for political speech, used in a way that doesn't compete with the original movie (at all), apparently the film in question is already available for free online, as it was a part of a film festival, where the entries are viewable online.

What's troubling, yet again, is that this form of political speech has been removed from YouTube in the heat of an election battle. Even if the takedown was not political, it's clearly a case of copyright law being used to stifle political speech. The EFF asks Arginate to withdraw the takedown and asks YouTube to put the video back up (without waiting for the whole 10 to 14 day period in the DMCA).

We've talked for years about the blurring of the "work-life" balance thanks to our always connected world. These days, it's not uncommon for people to do some "life" aspects at work (online shopping, banking, etc.) while also doing plenty of "work" things while at home (checking email, creating presentations, etc.). While there are still occasional stories (almost always put forth by companies selling filters) about the "evils" of workers doing personal things on work time, enough studies have shown that people more than make up for such uses by working from home or being more productive when they actually work.

But there are other issues beyond just the productivity question when professional and personal "selves" begin to blend. I've definitely noticed this on things like Twitter, where some people use their Twitter accounts for personal things, others for work things -- and many for both. Some companies have rules about that kind of thing, though it leads to awkward declarations, such as telling employees they can only use their Twitter accounts for work related issues. But that takes away much of the power of Twitter, which gives people -- even in work settings -- a chance to better connect with others.

And, one of these days, you just know there's going to be some sort of legal fight over who actually "owns" a Twitter account: the employee who uses it... or the employer. In cases where an employee builds up a huge following, and tweets mostly about work, sooner or later some company will claim to own that profile (especially if the employee tries to leave).

But, this blurring of work and life boundaries can create other issues as well. Andrew F alerts us to a story which he calls (and I agree) a "little inane," concerning the fact that White House Press Secretary Robert Gibbs is upsetting some because he tweeted about his local bike shop. In this case, Gibbs did a "#FF" tweet, which is a pretty common usage of Twitter, where, on Friday's you do a "Friday Follow" (#FF) tweet that highlights someone else on Twitter that your own followers might be interested in following. It's sort of a neighborly use of Twitter. So Gibbs did exactly what millions of people on Twitter do and gave a shout out to his local bike store:

#FF @CraigatFEMA so you know the latest @RevCycles a great bike store & special thanks to Ken and others there for helping me with my bike

Perfectly normal, and another example of Twitter being used to make famous people more human, right? Well, except in the politicized world of Washington D.C., where suddenly there's concern that what if this is an "official White House endorsement" and an "abuse of power."

And suddenly we're back to the whole blurry border of work and life. The tweet was quite clearly a personal tweet, but with the blurring borders and questions about whether or not any random statement a person makes is now in "an official capacity" or just as a personal statement. The nice thing about Twitter is that it's quite conversational, so people say things as if they're just talking to friends they ran into on the street. But the difference is that it's also broadcast and recorded for everyone.

I think it's pretty ridiculous to worry too much about the White House press secretary expressing his happiness with the local bike shop that fixed his bike, but it might be a precursor to other issues that are definitely going to come up with services like Twitter as people begin to recognize the new and changing boundaries between their personal lives and their work lives.

There is a growing number of scholars questioning how to align the First Amendment's rule that "Congress shall make no law... abridging the freedom of speech...." with intellectual property law that often does, in fact, abridge freedoms of speech. I'm in the middle of reading an entire book on the subject -- which I'll be reviewing here shortly. And, just recently, we saw a court (for the first time) note that parts of copyright law were unconstitutional due to the First Amendment. Law professor Peter Friedman points us to the latest of many recent treatises on the subject, by Christina Bohannan, entitled Copyright Harm and the First Amendment, which questions why copyright law does not require any showing of "harm" to get around the First Amendment issue.

Other laws -- such as defamation -- require that in order to adbridge the freedom of speech, harm needs to be shown. And that seems like a reasonable condition. Bohanan agrees and suggests, not just that copyright law should be changed to include a burden on those declaring infringement to show that actual harm has been done, but that the First Amendment requires this. In fact, she finds it troubling that rather than putting the burden on the accuser to show harm, it's often flipped around, and the burden is placed on the defendant to prove a lack of harm -- which creates the chilling effects so many people warn about. It is these "chilling effects" that seem to go entirely against the First Amendment.

This article argues that copyright law, at least as it is applied in many cases, is unconstitutional. When there is no harm to the copyright holder's incentives, copyright law burdens speech without serving any countervailing governmental interest. Thus, the First Amendment requires proof of harm in copyright infringement cases. Consistent with the government interest in encouraging innovation, the harm requirement would allow a finding of infringement only where the copyright holder can show that the defendant's use is likely to cause real harm to the copyright holder's incentives to create or distribute copyrighted works. As such, the harm requirement would allow restrictions on speech only when necessary to keep the "engine of free expression" running. Although the harm requirement is no panacea for all speech issues in copyright law, it would help courts to identify and eliminate cases involving false conflicts between the First Amendment and copyright -- that is, cases in which there is arguably a speech interest in allowing the defendant's use and no speech interest in prohibiting it.

It's definitely a worthwhile read. Combined with some other recent scholarship, it seems likely that these issues are likely to get tested in court in the relatively near future. It would be great to see the courts recognize that copyright law has expanded so far as to violate the First Amendment in more and more situations.

Last summer, we wrote about a very questionable DMCA lawsuit filed by Coupons.com. The company lets people download coupons using its own software. The software is designed to limit how many copies of a coupon people can make. The company accused John Stottlemire of violating the anti-circumvention part of the DMCA by offering up some software that would help people get around the copy limit. However, he didn't just offer up software to do it, elsewhere he explained how you could do it manually, just by deleting a couple of files on your computer. That's hardly a "hack." There was no encryption to defeat, just some files to delete. Basically, Coupons.com couldn't be bothered to come up with a system that was actually secure and put in only the weakest of "protections."

Yet, Coupons.com claims that telling people to delete some files is circumventing their copy protection. The EFF (along with the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley) have now filed an amicus brief with the court pointing out the numerous problems with the charges. As the filing notes, the DMCA is focused on people providing a "technology, product, service, device, component, or part thereof," and comments on a website hardly seem to qualify. It also notes that even if the court interprets written comments to be included, the DMCA is specific that it does not diminish any free speech rights. The filing also looks at other problems with the Coupons.com filing, including the company mixing up the difference between access controls and rights controls. Hopefully the judge realizes that this is (yet another) abuse of the DMCA and tosses the case out quickly.