Don’t We Already Have That?

I was reading this great article by Jason Tanz on Wired (via Marco Arment) about the Facebook game spoof Cow Clicker, and this paragraph stuck out to me:

Game theorist Jesse Schell took this idea to its Orwellian extreme in a presentation at yet another industry conference. He described a world in which a person’s every action—brushing their teeth, showing up to work on time, tattooing an advertisement for Pop-Tarts onto their forearm—earned points. Schell says he wanted to encourage people to think carefully about which kinds of games and experiences were appropriate to develop.

It seems to me that we already live in just such a world. The “points” are just called “money” and cheating is not only allowed, but seemingly encouraged by the rules.

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Yesterday

So, finally, we had A New Hope. But now it is two years later and the Empire Struck Back. Unfortunately, now all we have to look forward to are the fucking Ewoks.

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If A Sperm Is Wasted, God Gets Quite Irate

Let’s all celebrate Christine O’Donnell’s victory last night, shall we? (Via John Cole, of course.)

Let the heathen spill theirs
On the dusty ground.
God shall make them pay for
Each sperm that can’t be found.

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The Day the Libraries Died

Ars Technica has an article up about the recent ruling of the US Court of Appeals for the Ninth Circuit in the case of Vernor v. Autodesk (PDF). In this ruling, the court upheld common provisions of software EULAs (the license agreement you click through blindly when you install software or download music from iTunes) that restrict resale, lease, and lending rights. The backstory is this:

The case is Vernor v. Autodesk, in which Timothy Vernor made his living from selling items (including software) on eBay. Vernor had picked up some old copies of AutoCAD from an architect’s office sale, complete with their serial numbers, and he put them up on eBay noting that they were not currently installed on any computer. Sounds legal, right?

But there’s a catch. Autodesk, the software’s developer, forced all users to accept an agreement before using AutoCAD. This agreement made clear that AutoCAD was merely licensed, never sold, and that one’s license was non-transferable. Further, a licensee could not rent, lease, or sell the software to anyone else; you couldn’t even physically transfer the discs out of the Western Hemisphere (!). Finally, if you upgraded to a new version, the old version had to be destroyed.

The copies Vernor picked up at the architect’s sale were old copies that had not been destroyed as required. Vernor believed he was in the clear to resell them, as he had not agreed to any license. But after putting them on eBay, Autodesk repeatedly tried to shut down his sales. Vernor, on the verge of getting banned from eBay, sued Autodesk and asked the court to declare his sales legal.

A federal court did so in 2008, but Autodesk appealed, and today the appeals court reversed that earlier decision. In its view, US “first sale” protections don’t apply to Vernor, because he didn’t buy the software from a legitimate “owner.” That, in turn, is because the architecture firm had only “licensed” the software, and that license could indeed allow a software company to prevent resale, lending, and even removal from the Western Hemisphere.

This ruling, if it stands, has massive implications for the future. If you think it doesn’t much matter to you, think again. Have you ever been to a library? Have you ever bought a book or a used DVD at a yardsale or on Amazon? Have you ever borrowed a CD from a friend? All of that starts to end now.

Since the invention of the printing press, there has been some form of the notion of First Sale doctrine, but that idea was officially recognized in 1908 by the Supreme Court. This means, in effect, that once you buy a copy of a book (or a VHS tape or CD or whatever), then that copy of the book is yours to do with what you’d like. Copyright protects the publisher of the book by restricting one and only one activity by the purchaser with their new property. You can’t create additional copies. Copyright is aptly named. It quite literally defines the “right” of the “copyright holder” to be the only ones legally allowed to create new copies. Once those copies are created and sold, though, they become the purchaser’s property. You are free to resell the item, loan it out to friends, or burn it if you’d like. The only thing you are restricted from doing is creating additional copies. It is this doctrine that allows libraries to exist.

We are on the cusp of a major sea-change in content distribution, the likes of which society hasn’t really begun to consider. The issue is, of course, that as we head into the 21st Century, books are no longer books, and records are no longer records. That ebook copy of the latest NYT Bestseller you bought on your Kindle or iPad? That MP3 you downloaded from the Amazon digital music store? That scrabble board game clone you bought on the iTunes App Store? Yeah, that’s all software. And that software has a license, and the court has now ruled that:

[A] software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.

And if you are a licensee and not an owner, the publisher can restrict your use of the product however they’d like. If they want to say that you can only read their content in Utah while standing on one leg and humming “In-A-Gadda-Da-Vida”, then that’s the way it is.

Imagine for a second that this same rule applied to paper books. That means that a publisher could put a page at the beginning of the book (or more likely, 68 pages in 8-point type) where they state that you are a licensee and not an owner, and that you are not allowed to “redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, license or otherwise transfer” the content, and then require that you burn the book right after you finish reading it. The very idea is absurd, and if publishers started doing that, then people would be immediately up in arms and it would be all over the Sunday morning talk shows. But that is exactly what is happening with all of our digital content, and now the courts say it is legal and that First Sale doctrine doesn’t apply.

That means no less than the end of libraries. It means the most massive expansion of copyright the world has ever seen. No longer does the publisher only have the exclusive right to be the sole creators of new copies of their content, but they also have the power to be the only ones who can legally distribute that content. Oh, and thanks to Disney and an aging pop star, copyright lasts effectively forever now (instead of the original 14 years). And the publishers will use this new power. It finally allows them to stamp out the “used sales” market (which they’ve hated for time immortal), and to charge anything they want for their content. If there is no used market, there is no pricing pressure on the publishers, because they’re the only game in town if you need to read that particular book or hear that particular song.

Right now, buying books and music and other similar products digitally is an option. You can choose to do so for convenience, but if you want to, you can still run out to Borders and buy a good old dead-tree edition (and most people still do). But that isn’t going to last. Just like digital cameras destroyed the film camera market and made film a tiny niche product; digital music, movies, and books are going to decimate the physical media market over the next decade or two. Sure, there will probably still be low-volume production of certain books and music on physical media for some time to come, just like you can still buy certain records on vinyl brand new even today. Those publishers will fulfill a niche market , but as the population that grew up holding physical dead-tree books in their hands ages and dies off, that will surely fade away. When the kids who are in Elementary School now have children of their own and they’re writing their first “book report”, the book in question will almost certainly be a digital copy. The change has already happened with music, and you can see it coming to video and books as well.

And if you don’t have the right to lend that content out, or resell it at a yard sale, then the libraries don’t have that right either. And that means that one day, a child is going to ask their parents: “Mommy, what were libraries like?”

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The Hazy Recollection of Being Seduced By Some Kind of Cruel Samoan

As usual, mistermix brings up a fantastic point about the ongoing dustup over Craigslist shuttering the Adult Services portion of their site.

First, a little background: Craigslist has been facing a number of cases and subpoenas brought against them in various states accusing them of various forms of “enabling prostitution”. The argument goes that, even though they actively cooperate with all police investigations, the very fact that they allow people to post “Adult Services” ads for things like erotic massages and escorts makes them, by default, enablers of prostitution, sex slave trafficking, and child exploitation. As Jacqui Cheng aptly described over at Ars Technica:

In the past, the site’s “erotic services” section was the target—prostitutes were known to advertise their services there among the strippers, masseuses, and other perfectly legal offerings.

However, critics have zeroed in on the possibility for human trafficking and child exploitation—a concern that was apparently (from the AGs’ point of view) not sufficiently addressed when Craigslist entered into an agreement with the National Center for Missing and Exploited Children (NCMEC) and the attorneys general of 40 states back in 2008. At that time, the site agreed to take additional screening measures to ensure all ads in the erotic services section were legal, including the implementation of a phone verification system and a blacklist for those who posted inappropriate ads.

Eventually, lawmakers pushed hard enough that Craigslist decided to shut down the erotic services section altogether in 2009, replacing it with adult services, a seemingly trivial switch. In the new section, “service providers” are required to go through a manual review process by moderators and pay $10 per post (posts in erotic services were free). This was meant to keep people using their real names and IDs, and Craigslist donated the revenues to charity.

The subject came up once again this year when Connecticut and 38 other states subpoenaed Craigslist over its “brothel business.” The states demanded to see how much money the adult services section was making and what steps Craigslist was taking to fight prostitution. Craigslist’s Buckmaster responded sharply by saying that the attorneys general were “indulging in self-serving publicity at the expense of the truth,” and that Craigslist had “gone beyond” its legal obligations to deal with prostitution.

This came to a head in August as election season started to gear up, when a group of 17 states’ Attorneys General sent a joint “open letter” to Craigslist founder Craig Newmark and CEO Jim Buckmaster that effectively demanded that they shut down the Adult Services section of Craigslist altogether. Then, a few days ago, Craigslist suddenly complied and shut the whole thing down. Now, of course, this doesn’t mean that the adult ads will disappear from Craigslist completely. They’ll just move into other sections of the site and pollute the regular listings, and now no one will have to buy the ads with traceable money and go through any sort of verification. So, in the end, an effective police tool for combating real trafficking (browsing Craigslist for the “worst of the worst” out there and then going after those people with the help of Craigslist and the data collected by their system) will be stymied. Oh, and it’ll be a lot harder to make money as a stripper too, which just might push some of those girls into prostitution.

And, of course, some of the powers-that-be are using this ginned up controversy to, yet again, go after section 230 of the 1996 Telecommunications Act. For those of you who don’t know (and why would you) Section 230 represented a “deal” of sorts in an effort to curb the spread of completely unregulated filth in early “social” sites like usenet, web forums, and places like Facebook Geocities. The idea was this: Before this law was passed, sites consisting primarily of user-generated content were in a tight spot. If your users posted terrible and illegal things like child porn or classified documents, you were often actually prevented by law from pulling that content down. The problem was that the law recognized you as liable for that content if you exercised any editorial control over those contents whatsoever. The orignal idea was to protect newspapers and magazines from liability possibly illegal things offered by the public in venues like classified ads, but to prevent the sex industry (and other nefarious industries) from covering themselves by making sham publications filled with child-sex ads and pornography by calling them classified ad “magazines”.

The solution was that if you edited any of the ads for content, you could be considered liable for that content. But if it was a pure “public forum”, then the users were liable and not you. This was all fine and good in the era of print ads and magazines, but in the age of the Internet and the rise of social media, it served to have the opposite effect. If someone posted a horrible thing on your “public forum” site, and you moderated by removing the content, then you could be held liable for anything left behind (which might be things that fell through the cracks in a massive site with thousands or hundreds of thousands of posts). So companies protected themselves by refusing to moderate anything, even clearly offensive and possibly illegal posts.

So, we came up with a deal. If service providers complied with certain rules about providing parental controls and cooperating with police investigations, they would not be held liable for user-generated content on their website, even if they did some “Good Samaritan” blocking of objectionable content they did manage to find on their sites. As Declan McCullagh says aptly in his article on CNet:

Translated, that means Craigslist isn’t generally liable for what its users do.

But the law that immunizes Craigslist from lawsuit also protects Facebook, Blogspot, Flickr, and innumerable other Web sites. It lets news organizations, including CNET publisher CBS Interactive, permit readers to post comments without prior approval by an editor. It’s probably no exaggeration to say that one sentence–inserted as part of negotiations over antiporn legislation–gave birth to Web 2.0 and modern social networks.

Ever since that provision was passed, there has been a constant drumbeat from some more authoritarian corners of the country to push it further and to outright ban all obscene content online, and to regulate the Internet like we regulate our airwaves. These efforts are lead by people who are, by and large, zealots who would be happy to see the publishers of Playboy and Penthouse and the producers of Vivid Entertainment charged and put in jail. It would be comical if it weren’t so scary. How long before telling a dirty joke online, or typing out an erotic short story, or saying “fuck” online is called obscene? How long before they go after Google and Facebook and Amazon? How long before they turn that massive Internet filtering and data mining system they built “for terrorism” on us, and start scouring our Internet activities looking for “unclean minds” and “future potential predators”?

But it is also comical, of course, because it quite obviously would never work. The Internet is a global interconnected network designed on-purpose to be able to route around problems. A puritanical campaign to purge the Internet of porn would, like the Drug War, never end and never succeed. Well, not quite. It would succeed in pushing that content offshore, removing any controls we have over it altogether. And just like the “Great Firewall of China” does much more to block the Internet activities of visitors to China than it does for its own people, any attempt to “block it at our shores” would be doomed to failure. The only people who think this really could work, fundamentally misunderstand what the Internet is and how it works. They are also almost certainly the same people who don’t get how evolution works, but that’s a different story for a different day.

So, Craigslist is protected by law. But they have been enduring a constant stream of harassment and lawsuits by groups like the FAIR Fund (an unabashedly anti-Craigslist group) and as many as 36 different states at one time or another. Craigslist isn’t a huge mega-corporation worth billions like Facebook or Google. They have literally 30-something employees total, and no army of corporate lawyers to defend themselves against these constant attacks. So they caved, and the cracks in the protections afforded by this law grew a lot wider. And the free-market powered self-filtering that we’ve been enjoying because of it for 14 years may just take a step back. Since then, the story has been going back and forth throughout the “tech punditocracy”. Was the pressure exerted on Craigslist to get them to cave fair? Should Craigslist have continued to fight the “good fight” to defend the rest of the little guys on the Internet? Does this mean you can use legal harassment to bully site operators into doing what you want? Much has been written about it, from a somewhat surprising defense of Craigslist over at the National Review Online based on a strange call for special small business “rights” to an explanation of how, even though these “scumbags” are terrible people, that censoring Craigslist actually will eventually “help them” from Danah Boyd at Huffington Post.

So, what did mistermix bring up? Just the fact that, as usual, we are fighting the wrong fight:

In other words, Salam, who writes at the National Review, thinks Craigslist deserves special treatment because of its entrepreneurial spirit and the value created by a small business. Boyd, who contributes to Huffington Post, says Craigslist should be treated differently because they are on the side of the oppressed sex worker enslaved by an uncaring industry. It’s different bait for different fish, but both cases just amount to special pleading.

What’s needed here isn’t an exception for the right sort of people—we need to change the laws that govern prostitutes. The legalization of small-scale independent sex work will free up police resources to go after the sex-power industry, and it will get cops off the back of a hard-working small businessman. I imagine that Salam didn’t make that argument because his audience at the National Review can’t stomach the immorality of prostitution, just as Boyd’s audience can’t abide the exploitation of women which they believe is at the heart of sex work.

So many pixels are wasted in the pundit business arguing that good people shouldn’t have to follow the law of the land, when what ought to be argued is that the law of the land needs to change so good people can get on with their lives free of state interference.

If prostitution were legal and regulated, rather than pushed into the same netherworld that brings us child sex slave trafficking and forced prostitution, then tons of police resources would be freed up to fight against those serious problems. Instead of trying to fight a hopeless and religious war against the oldest profession “For The Children”, maybe we should, you know… Rationally try to save the children and leave everyone else alone.

But, you know, that’ll never happen because it makes sense. And our country still hasn’t figured out a way to stand up for our freedoms against the easy puritanical soundbite proclaiming that they are doing God’s Work. And because, you know, fuck it… It’s an election year.

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All’s Well That Ends

Can’t sleep. Stephen Colbert’s Returnification of the Ameri-can-Do Troopscape was brilliant and well done (and good job to Biden for participating). Watch it:

The Colbert Report	Mon – Thurs 11:30pm / 10:30c
Been There Won That – Joe Biden & Yogi Berra<a>
www.colbertnation.com
Colbert Report Full Episodes 2010 Election Fox News

That’s just a clip, but you should watch the whole thing. I have to agree, most of us don’t say it entirely enough. So, for now anyway, here it is from me: Thank you, to all who have served, past and especially present. I can’t comprehend the sacrifices you’ve made, and I am immensely in your debt.

(Though let me tell you, the no-ad blog making millions thing isn’t really going quite according to plan.)

Oh, and while you’re at it, watch this clip too:

The Daily Show With Jon Stewart	Mon – Thurs 11p / 10c
Are You Ready for Some Midterms? – MSNBC’s Political Narrative
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

Have you learned nothing from Fox? You pick your narrative and you stick with it. And if the news doesn’t fit your narrative, change your fucking news.

Oh, and lastly, the commenters on that Colbert episode over on Colbert Nation really are giving the Xbox vs PS3 fanboy douchebag flamewars of years gone by a run for their money over there. I didn’t know whether to laugh or cry.

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