Kind of Copyrighted

This Week in Law is a fascinating podcast on technology law issues, although I’m way behind on listening. Recently, I was listening to Episode #124, and they had a discussion of Kind of Bloop, “An 8-Bit Tribute to Miles Davis’ Kind of Blue.” There was a lawsuit against artist Andy Baio, which he discusses in “Kind of Screwed.” There’s been a lot of discussion of the fair use elements of the case (for example, see “Kind of Bamboozled: Why ‘Kind of Bloop’ is Not a Fair Use“). But what I’d really like to talk about is (what I understand to be) a clear element of copyright law that is fundamental to this case, and that is compulsory mechanical licensing.

In TWIL podcast, there’s a great deal of discussion of should Baio have approached the photographer for a license or not. He did approach the copyright holders for Kind of Blue, who were “kind” enough to give him a license. They gave him a license for the music, but he didn’t need to approach them. Copyright law gives anyone the right to record a cover, and as a result, there is a flourishing and vibrant world of cover music, including great podcasts like Coverville, and arists like Nouvelle Vague, who do amazing bossa-nova style covers of punk. (Don’t miss their cover of Too Drunk to Fuck.) And you can listen to that because they don’t have to approach the copyright holder for permission. Maybe they would get it, maybe not. But their ability to borrow from other artists and build on their work is a matter of settled law.

I’m surprised this difference didn’t come up in the discussion, because it seems to me to be kind of important.

It’s kind of important because it’s a great example of how apparently minor variations in a law can dramatically change what we see in the world. It’s also a great example of how constraining rules like mechanical licensing can encourage creativity by moving a discussion from “allow/deny” to “under what circumstances can a copyright holder use the courts to forbid a copy.” If we had mechanical licensing for all copyrighted materials, Napster might still be around and successful.

The Pre-K underground?

Not my headline, but the New York Times:

Beyond the effort was the challenge of getting different families to work together. When matters as personal as education, values and children are at stake, intense emotions are sure to follow, whether the issue is snacks (organic or not?), paint (machine washable?) or what religious holidays, if any, to acknowledge. Oh, and in many cases, forming a co-op school is illegal, because getting the required permits and passing background checks can be so prohibitively expensive and time-consuming that most co-ops simply don’t. (“The Pre-K Underground“, The New York Times, December 16)

Read the whole thing, and then give some thought to how effectively those policies, combined with the drug war, are de-legitimizing governments, and convincing people that to live their lives involves avoiding government rules. Eventually, even legitimate and necessary functions of government like courts will fall apart.

Think I’m exaggerating?

“There’s a fairly stringent code and byzantine process for getting certified and code-compliant,” said City Councilman Brad Lander, a Democrat from Brooklyn, whose office held a meeting over the summer for any co-ops interested in pooling their resources and securing permits. “Some are genuinely for the safety of kids, and some are more debatable.”

There’s a city councilman driving doubt over the system. What does that do to the legitimacy? What happens to the social contract?

Will the war on coop kindergardens join the war on drugs?

Slow Thoughts on Occupy Seattle

Corporate ThievesI headed down to Occupy Seattle before a recent vacation, and have been mulling a bit on what I saw, because the lack of a coherent message or leadership or press make it easy to project our own opinions or simply mis-understand what the “Occupy” protests mean, and I wanted to avoid making that mistake. I think I saw two big themes there: an anti-war theme, and a combination of anti-capitalism and anti-corporatism. I think the second is more interesting, because it’s a combination of views, some of which I support, and others I think are somewhat foolish.

I think capitalism is a good thing. I’ve taken a salary from (venture) capitalists who were able to pay me because they captured “surplus value” from startups, and ploughed some of that profit back into more startups. I use the Marixst term of “surplus value” because I understand the Marxist critique, have lived it, and still think it’s a better system than all those others that have been tried from time to time. (I also think that Marx’s critique of capitalism is excellent, and even more so in light of the poorness of his suggested fixes.) The accumulation of capital in private hands greatly expands the range of entrepreneurship, allowing new products and services to emerge. And for those new products to succeed, they need to serve needs better than what preceded them. So we all benefit to a degree from the capital that accumulates in the hands of investors (even with the costs of creative destruction and externalities.)

At the same time, I think that there’s an emergent system of what we might call corporatism that I think is incompatible with a free society, and is in fact incompatible with free markets. By a free market, I mean one in which people contract with each other and with companies, and the court system enforces fair and predictable limits on those contracts. Fair limits might include that the parties came to a genuine meeting of the minds before exchanging value, that contracts are severable (so no indentured servitude or slavery), that interpretation favors the party that received the contract (rather than the drafter), and that neither party engaged in deceit in advertising their services.

Corporatism, at its heart, involves twisting the free market via government intervention in a number of ways:

  • Lobbying for rules that allow the company to exclude competition. See, for example, AT&T’s gradual re-monopolization of the phone system.
  • Manipulations of the contract system in ways which prevent fair redress. These include mandatory binding arbitration, prohibition of class action suits, clauses that allow the contract to remain in force even if the drafter puts in many clauses which shock the conscience of a court.
  • Un-knowable systems (in particular, the American credit system) in which companies work together to ensure that you do what they demand, even if it’s wrong, because if you don’t, they will destroy your ability to contract with anyone else on fair terms.
  • Convincing the government to take all the downside risk and none of the upside of the banking crisis, and then failing to prosecute those who enriched themselves via a game they knew full well was rigged.

Corporatism comes from the discovery that rules and meta-rules (the rules that are used to set the rules) are manipulatable. Of course, this is nothing new:

“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice.” (Smith, “The Wealth of Nations.”

There were a good number of frankly anti-capitalist signs and groups at Occupy Seattle. It’s a free country, they’re entitled to their opinion, and I can disagree.

But they were not the only signs. I saw lots of signs which seemed to take aim at the unaccountable: the bankers, the corporations (“I won’t believe that corporations are people until Texas executes one”). And I think that responses to currently unaccountable corporatism is going to be one of the key outcomes of the Occupy Movement.

Twitter updates

I’ve decided to experiment with pushing my Twitter feed onto the blog. What do you think?

For non-Twitter users, the RT means “re-tweet,” amplifying things that others have said and MT means modified tweet, where the RT plus comment don’t quite fit.

If someone has php code to resolve URLs into real URLs, that would be nice, and the Twitter Tools plugin seems easy to hack on.

Emergent Effects of Restrictions on Teenage Drivers

For more than a decade, California and other states have kept their newest teen drivers on a tight leash, restricting the hours when they can get behind the wheel and whom they can bring along as passengers. Public officials were confident that their get-tough policies were saving lives.

Now, though, a nationwide analysis of crash data suggests that the restrictions may have backfired: While the number of fatal crashes among 16- and 17-year-old drivers has fallen, deadly accidents among 18-to-19-year-olds have risen by an almost equal amount. In effect, experts say, the programs that dole out driving privileges in stages, however well-intentioned, have merely shifted the ranks of inexperienced drivers from younger to older teens.

“The unintended consequences of these laws have not been well-examined,” said Mike Males, a senior researcher at the Center on Juvenile and Criminal Justice in San Francisco, who was not involved in the study, published in Wednesday’s edition of the Journal of the American Medical Assn. “It’s a pretty compelling study.” (“Teen driver restrictions a mixed bag“)

As Princess Leia once said, “The more you tighten your grip, the more teenagers will slip through your fingers.”

Emergent Map: Streets of the US

This is really cool. All Streets is a map of the United States made of nothing but roads. A surprisingly accurate map of the country emerges from the chaos of our roads:

Allstreets poster

All Streets consists of 240 million individual road segments. No other features — no outlines, cities, or types of terrain — are marked, yet canyons and mountains emerge as the roads course around them, and sparser webs of road mark less populated areas. More details can be found here, with additional discussion of the previous version here.

In the discussion page, “Fry” writes:

The result is a map made of 240 million segments of road. It’s very difficult to say exactly how many individual streets are involved — since a winding road might consist of dozens or even hundreds of segments — but I’m sure there’s someone deep inside the Census Bureau who knows the exact number.

Which raises a fascinating question: is there a Platonic definition of “a road”? Is the question answerable in the sort of concrete way that I can say “there are 2 pens in my hand”? We tend to believe that things are countable, but as you try to count them in larger scales, the question of what is a discrete thing grows in importance. We see this when map software tells us to “continue on Foo Street.” Most drivers don’t care about such instructions; the road is the same road, insofar as you can drive in a straight line and be on what seems the same “stretch of pavement.” All that differs is the signs (if there are signs). There’s a story that when Bostonians named Washington Street after our first President, they changed the names of all the streets as they cross Washington Street, to draw attention to the great man. Are those different streets? They are likely different segments, but I think that for someone to know the number of streets in the US requires not an ontological analysis of the nature of street, but rather a purpose-driven one. Who needs to know how many individual streets are in the US? What would they do with that knowledge? Will they count gravel roads? What about new roads, under construction, or roads in the process of being torn up? This weekend of “carmageddeon” closing of 405 in LA, does 405 count as a road?

Only with these questions answered could someone answer the question of “how many streets are there?” People often steam-roller over such issues to get to answers when they need them, and that may be ok, depending on what details are flattened. Me, I’ll stick with “a great many,” since it is accurate enough for all my purposes.

So the takeaway for you? Well, there’s two. First, even with the seemingly most concrete of questions, definitions matter a lot. When someone gives you big numbers and the influence behavior, be sure to understand what they measured and how, and what decisions they made along the way. In information security, a great many people announce seemingly precise and often scary-sounding numbers that, on investigation, mean far different things than they seem to. (Or, more often, far less.)

And second, despite what I wrote above, it’s not the whole country that emerges. It’s the contiguous 48. Again, watch those definitions, especially for what’s not there.

Previously on Emergent Chaos: Steve Coast’s “Map of London” and “Map of Where Tourists Take Pictures.”

MySpace sells for $35 Million, Facebook to follow

So MySpace sold for $35 million, which is nice for a startup, and pretty poor for a company on which Rupert Murdoch spent a billion dollars.

I think this is the way of centralized social network software. The best of them learn from their predecessors, but inevitably end up overcrowded. Social spaces change. You don’t hang out at the same bar you hung out with in college, and you won’t use the same social networks. Specialized networks like LinkedIn will likely fare better, as long as they stay focused on a core mission.

Ezra Klein says “killer app of Google+ is the ability to start your social network over w/benefit of years of Facebook experience.” I hate to say it, but that doesn’t strike me as a killer app like Lotus 1-2-3 did.

Phil Windley says “just realized G+ is using asymmetric follow.” I think this is right and important. “Friend” relationships are rarely perfect mirrors of each other, and the software asymmetric follow pattern is closer to the human patterns of friendship, respect and fandom.

I suspect that Google has gone further, and consciously built on those patterns with friend, family, acquaintance. That’s cool, and it’s a obvious outgrowth of Flickr’s default circles of friends and family, and adds making new circles easily.

So what does this mean for you?

First, it’s time to start thinking about leavingFacebook. Get your social network back in email where it belongs. Start trying to get your data out of Facebook’s databases before everything about you sells for pennies on the dollar.

If you’re a product manager for one of these things, you’re building on the happy dopamine releases we all get when we get positive social feedback. (That’s why Facebook only has a “Like” button.) You need to realize that the dopamine-release cycle requires bigger and bigger hits of wuffie over time. And the grimaces and hesitations add up. People remember the negatives for a long time. So the bad graph builds, and over time the happy graph drops away, and with it your eyeballs, minutes, options and stock options.

So finally, enjoy it while you can, Zuck.

Map of Where Tourists Take Pictures

Eric Fischer is doing work on comparing locals and tourists and where they photograph based on big Flickr data. It’s fascinating to try to identify cities from the thumbnails in his “Locals and Tourists” set. (I admit, I got very few right, either from “one at a time” or by looking for cities I know.)

Seattle Photographers

This reminds me a lot of Steve Coast’s work on Open Street Map, which I blogged about in “Map of London.” It’s fascinating to watch the implicit maps and the differences emerge from the location data in photos.

Via Data Mining blog and

The Future of Education is Chaotic, Fun and Unevenly Distributed

After I wrote “The future of education is chaotic and fun“, I came across “The Montessori Mafia” about the unusual levels of successfulness that Montessori produces.

In my post, I opened discussing how our current system of funding education in the US is to force everything through a government department. That department is constrained by a number of things, including “regulatory” capture by those parents with the time, inclination and skills to engage with the bureaucratic system. It’s also constrained by federal, state and probably municipal laws about what it can teach.

It’s also constrained by an instinctual conservativeness in parents, who think that they turned out ok, and so what worked for them will work for their kids.

But as the Montessori research demonstrates, all of those levels of conservativeness add up to a remarkable degree of sclerosis for the educational system. Now it may be that there’s good reasons to not adopt Montessori ideas for the general schools, just like there may be good reasons to not adopt Khan’s idea’s. But we’ve had a long time to study Montessori, and it seems to produce students who do well in life.

It’s not financial; the methods are old enough that anyone can use them, even if the early writings are probably still copyrighted.

So why aren’t its methods better distributed?

The future of education is chaotic and fun

Lately, I’ve seen three interesting bits on the future of education, and I wanted to share some thoughts on what they mean. The first is a quickie by Don Boudreaux at Cafe Hayek, titled “Grocery School.” It starts “Suppose that we were supplied with groceries in same way that we are supplied with K-12 education.” It’s a fun thought experiment. The second is this video, which is worth watching through:

What Khan says about why his cousins prefer him on Youtube rings true. But “rings true” to Adam doesn’t matter here. By deploying the system online, it becomes a testable proposition. That will feed a level of experimentation and improvement that we haven’t seen in education. Before I get to what that all means, one more data point, which is this press release from the Gates Foundation, which covers how they’re spending 7.5 million on games for education.

To bring all of this together, what we’re seeing is recognition of the failure of the “Taylorist” system of education, where we think of education as a mechanistic transfer of information from teacher to student that happens at a constant rate, and the realization that we need systems that handle the amazing diversity of students. To do that, we’re going to need not just experiments followed by reform, but a constant process of experiment and adjustment. If you think the home-schooling movement and the early college movement have transformed school, just wait. Those are like Martin Luther’s theses, and they’re going to kick off layers of transformation. And with that transformation and chaos all sorts of things will emerge. A lot of them are good, but before we get there, there are several risks that we can foresee.

The first is that learning becomes but a set of discrete activities, rather than a lifelong process. That “hierarchy” that Khan discusses is not just a breakdown of learning, it’s inherently an exclusion of something that doesn’t make the chart. For example, research methods for young students will likely be a combination of search engines and critical thinking about web sites, with an ever-diminishing value placed on going to the library. You know, “reflecting the modern world.” Going to the library and really digging for an old book won’t help you stay at the top, and even a great teacher will only be allowed to award a few discretionary points. Another way to think about that is with the addition of game mechanics (the “leaderboard and badges” that Khan discusses) and games for learning that Gates is funding elsewhere, we’ll see a distinct quantization of learning. That the goal is to hit the badge, or top the board. When things become easy to measure, the hard to measure gets ignored.

Another risk is what will happen when teachers can see every moment of goofing off? Will that be used to drive diagnoses of ADHD even higher for normal boys? Will “not living up to potential” be a new and ‘data-driven’ part of the report card?

Yet another risky area is privacy and commercialization. Will digitization lead to marketing of new tutoring systems? Will report cards and transcripts convert from an A-F summary to a computer-readable XML-encapsulated explanation of every problem set that little Robert and Jane have been through? (And note that that the process of making the transcript computer-readable will further drive out non-standardized activities. If there’s no code for “went to the rare book room,” there’s no credit for it, and if there’s no credit for it, why bother in today’s hyper-competitive world of college admissions?)

Interestingly, one of the few broad privacy laws in the US, the COPPA protects those under 13 to some extent, but I don’t think it considers educators as much as commercial web sites, and when Harvard demands the XML file, well, you can opt-in to their admissions process or not.

So even recognizing those risks, we’ll likely get an educational system that will stay with students who are having trouble without holding back those who want to move faster. We’ll learn to give students skills and approaches faster and faster. We’ll have to figure out now to ensure students learn cooperation, project management and other harder to quantify sorts of things. But I do think that we can give kids more skills and knowledge faster and better than we do today. If we do that, the world will have more smarter people than ever before, and even more interesting chaos will emerge.

I suspect there’s other things that will predictably go wrong, and other outcomes that I’m not seeing. What do you think?

Microsoft Backs Laws Forbidding Windows Use By Foreigners

According to Groklaw, Microsoft is backing laws that forbid the use of Windows outside of the US. Groklaw doesn’t say that directly. Actually, they pose charmingly with the back of the hand to the forehead, bending backwards dramatically and asking, “ Why Is Microsoft Seeking New State Laws That Allow it to Sue Competitors For Piracy by Overseas Suppliers? ” Why, why, why, o why, they ask.

The headline of this article is the obvious reason. Microsoft might not know they’re doing it for that reason. Usually, people with the need to do something, dammit because they fear they might be headed to irrelevancy think of something and follow the old Aristotelian syllogism:

Something must be done.
This is something.
Therefore, it must be done.

It’s pure logic, you know. This is exactly how Britney Spears ended up with Laurie Anderson’s haircut and the US got into policing China’s borders. It’s logical, and as an old colleague used to say with a sigh, “There’s no arguing with logic like that.”

Come on, let’s look at what happens. I run a business, and there’s a law that says that if my overseas partners aren’t paying for their Microsoft software, then Microsoft can sue me, what do I do?

Exactly right. I put a clause in the contract that says that they agree not to use any Microsoft software. Duh. That way, if they haven’t paid their Microsoft licenses, I can say, “O, you bad, naughty business partner. You are in breach of our contract! I demand that you immediately stop using Microsoft stuff, or I shall move you from being paid net 30 to net 45 at contract renegotiation time!” End of problem.

And hey, some of my partners will actually use something other than Windows. At least for a few days, until they realize how badly Open Office sucks.

What should a printer print?

Over at their blog, i.Materialise (a 3D printing shop) brags about not taking an order. The post is “ATTENTION: ATM skimming device.” It opens:

There is no doubt that 3D printing is a versatile tool for materializing your 3D ideas. Unfortunately, those who wish to break the law can also try to use our technology. We recently received an order which bore a strong resemblance to an ATM skimming device. Basically, the customer placed a 3D print order for a device similar to the one below which is inserted in an ATM machine.

The plastic part can be attached to an ATM machine and with the appropriate hardware and tapped keyboard can scan cards and get personal data. In most cases, such a device does not prevent the cardholder from withdrawing funds from their account, but as their card has been scanned, it can later be reproduced and funds can be stolen from their account.

Fortunately, our engineers were quick to react, and after communication with the customer, the decision was made to decline the order. We do not support criminal activity and will do everything in our power to prevent possible crimes.

The choice that i.Materialise has made is their business. And I appreciate the impulse to protect people from the potentially negative side effects of their awesome business. At the same time, I think it’s a thought provoking and questionable decision for a whole slew of reasons:

  • There are legitimate uses for an ATM skimmer part. For example, as a security expert, I might want such a thing to wave around at conferences. Bank employees might want some for training people on what to look out for. (This is somewhat mitigated by their reaching out, but do I want a business that makes judgement calls about what I print? Maybe I’ll take my adult toy business elsewhere, rather than thinking about what it means for their engineers to be “quick to react.”)
  • The public needs to start to understand that physical objects like this are coming. As 3D printing becomes common, many things will become easier to spoof and fake. Caveat emptor will return. I expect we’ll see a race between high and low volume manufacturers where the high volume folks will specialize in things that are hard to make at home, perhaps using things translucent plastics, toxic ingredients and/or aluminum and titanium, both of which require high temperatures.
  • The banking industry needs to understand that skimmers are getting insanely realistic, and they would be fools to rely on the good graces of 3d printing firms. Skimmers are already so realistic that they’re being installed on in-bank ATMs. Banks are going to need to figure out what to do about that. I figure they can go seamless curvy metal, settle on a single card slot design and roll it out, or start hiring mural painters to customize each ATM machine. Banks will also find it increasingly expensive to stay with magstripe + PIN.
  • This may set a precedent for i.Materialize to not be a “common printer” but a co-conspirator in production. (I believe the company is in Belgium, so their mileage will vary.) In the US, we have a concept of a common carrier, that is, one that will take all customers who can pay. You can choose to discriminate, but if you do, you’re answerable for it. If i.Materialise produces a part that’s used in a future crime, they’ve set a precedent that their engineers should have prevented it. I certainly wouldn’t want to have to answer in court for the statement that we’d “do everything in our power to prevent possible crimes.”

But, it’s their business, and their choice to make. It’s important to understand that 3D printing is getting faster, cheaper and more exciting every year, and that’s going to lead to a lot of chaos emerging.

I’m not aware of anything that makes it unlikely that there will be commercial, inexpensive home 3d printers in 5-10 years. Many of those will be based on open source software like RepRap, just as many inexpensive home routers either ship with or advertise support for dd-wrt. Those home devices will print ATM skimmer covers because it will be easy to remove code that tries to censor what can be printed. They’ll also print bomb parts, “drug paraphernalia,” and print-at-home Star Wars toys. Sorry, Kenner! And Pottery Barn, your days of selling glazed clay may be coming to an end. Later on, we’ll be able to print with easily worked metals like copper, silver or zinc, and those patented cables will be conspicuous consumption.

What’s happening to music and books will happen to physical things. The experience (the concert, the cruise with the band) becomes part of the artist’s revenue stream. Etsy will replace WalMart, because it will be cheaper to print plastics at home than to print them in China, ship them and warehouse them. And you’ll be able to buy plastic and clay that you know are BPA-free, or whatever the latest fad is. You’ll get your circuits or other harder things at shops like Metrix:Create Space. What you’ll pay for, and what Etsy is set up to deliver, is artistry and uniqueness.

Most of us in what’s left of the first world will be able to print the things we want, in the colors, designs and customizations we want. We’ll be better off for it. GDP will likely go down while our standard of living goes up.

Whichever way all this goes, lots of chaos is going to emerge, and we’re going to live in interesting times.

(Thanks to Boing Boing for catching the story.)

Egypt and Information Security

Yesterday, I said on Twitter that “If you work in information security, what’s happening in Egypt is a trove of metaphors and lessons for your work. Please pay attention.” My goal is not to say that what’s happening in Egypt is about information security, but rather to say that we can be both professional and engaged with the historic events going on there. Further, I think it’s important to be engaged.

A number of folks challenged me, for example, “Care to enumerate some of those lessons? The big ones I see are risks of centralized bandwidth control, lack of redundant connections.”

There’s a number of ways that information security professionals can engage with what’s happening.

A first is to use what’s happening to engage on security issues with their co-workers and management on issues like employee safety, disaster recovery and communications redundancy and security. This level of engagement is easy, it’s not political, but it uses a story in the news to open important discussions.

A second way is to use Egypt as a source of what-if scenarios to test those sorts of plans and issues. This gives strong work justification to tracking and understanding what’s happening in Egypt in detail.

A third way is to use Egypt as a way to open discussions of how our technologies can be used in ways which we don’t intend. Often times, security technologies overlap with the ability to impose control on communications. Sometimes, for example with Tor, they can be used to protect people. Other times, they can be used to cut off communications. These are difficult conversations, fraught with emotion and exposing our deep values. But they are difficult because they are important and meaningful. Oftentimes, we as technologists want to focus in on the technology, and leave the societal impact to others. I think Egypt offers us an opportunity to which we can rise, and a lens for us to engage with these questions in the technologies we build or operate.

There’s probably other ways as well, and I’d love to hear how others are engaging.