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Sunday, March 24, 2013
So THIS is What Happens When Your Server Goes Down for a Week
So THIS is What Happens When Your Server Goes Down for a Week is a post from: The Smart Passive Income Blog]]>
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SPI 055 : Blog to eBook to Membership Site in Less Than a Year – Starting Smart with Trevor Page
SPI 055 : Blog to eBook to Membership Site in Less Than a Year – Starting Smart with Trevor Page is a post from: The Smart Passive Income Blog]]>
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SPI 057 : What the Music Industry Can Teach Us about Starting and Running an Online Business with David Hooper
SPI 057 : What the Music Industry Can Teach Us about Starting and Running an Online Business with David Hooper is a post from: The Smart Passive Income Blog]]>
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My Monthly Income Report – January 2013
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SPI 058 : Pay What You Want with Anthony Vennare from Hybrid Athlete
SPI 058 : Pay What You Want with Anthony Vennare from Hybrid Athlete is a post from: The Smart Passive Income Blog]]>
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How to Use FREE In Your Business to Get More Traffic, Subscribers and Customers (Pat’s 2013 NMX Presentation)
How to Use FREE In Your Business to Get More Traffic, Subscribers and Customers (Pat’s 2013 NMX Presentation) is a post from: The Smart Passive Income Blog]]>
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What Would Happen to My Online Business if I Died?
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How to avoid Google penalties
Lessons from someone who has been slapped by Google, repeatedly Have you ever been slapped by Google? Take it from me, it’s not pleasant. I was one of many people who, for some reason, used to think ranking well in Google was all about finding some magic formula. Put your main key phrase in the [...]
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SPI 054 : The Click
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SPI 056 : LinkedIn, Likability and Leveraging your Affiliates with Lewis Howes
SPI 056 : LinkedIn, Likability and Leveraging your Affiliates with Lewis Howes is a post from: The Smart Passive Income Blog]]>
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SPI 059 : How Viral Happens – An Interview With Jonah Berger, Author of Contagious
SPI 059 : How Viral Happens – An Interview With Jonah Berger, Author of Contagious is a post from: The Smart Passive Income Blog]]>
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Saturday, March 23, 2013
SPI 058 : Pay What You Want with Anthony Vennare from Hybrid Athlete
SPI 058 : Pay What You Want with Anthony Vennare from Hybrid Athlete is a post from: The Smart Passive Income Blog]]>
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SPI 055 : Blog to eBook to Membership Site in Less Than a Year – Starting Smart with Trevor Page
SPI 055 : Blog to eBook to Membership Site in Less Than a Year – Starting Smart with Trevor Page is a post from: The Smart Passive Income Blog]]>
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SPI 056 : LinkedIn, Likability and Leveraging your Affiliates with Lewis Howes
SPI 056 : LinkedIn, Likability and Leveraging your Affiliates with Lewis Howes is a post from: The Smart Passive Income Blog]]>
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What Would Happen to My Online Business if I Died?
What Would Happen to My Online Business if I Died? is a post from: The Smart Passive Income Blog]]>
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SPI 054 : The Click
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How to Use FREE In Your Business to Get More Traffic, Subscribers and Customers (Pat’s 2013 NMX Presentation)
How to Use FREE In Your Business to Get More Traffic, Subscribers and Customers (Pat’s 2013 NMX Presentation) is a post from: The Smart Passive Income Blog]]>
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So THIS is What Happens When Your Server Goes Down for a Week
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My Monthly Income Report – January 2013
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SPI 057 : What the Music Industry Can Teach Us about Starting and Running an Online Business with David Hooper
SPI 057 : What the Music Industry Can Teach Us about Starting and Running an Online Business with David Hooper is a post from: The Smart Passive Income Blog]]>
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SPI 059 : How Viral Happens – An Interview With Jonah Berger, Author of Contagious
SPI 059 : How Viral Happens – An Interview With Jonah Berger, Author of Contagious is a post from: The Smart Passive Income Blog]]>
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Infographic: Where Your Digital Comic Dollars Go
The following chart crossed my inbox yesterday (via eBookporn), and after I tracked down the original source and read more about the digital comics market I thought this was worth sharing. There’s a larger version of the chart later in the post. As you can see, creators and publishers have to give up two-thirds of [...]
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What Corporate Blogs Could Learn from the Success of Personal Blogs
If you look at most company blogs, they’re incredibly boring. They’re often nothing more than stock marketing material and cut/paste press releases. I’ve seen company blogs where every single post is about a new function or feature added to their product. As a result not a single potential customer reads the blog. The blog is [...]
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Mazecore Ads Review : Leading Text Ads Provider
Today I was searching for some new Adsense Alternatives rather than the traditional ones. And surprisingly I found the awesome one. Mazecore is a brand new but effective Text Ads provider. It helps both Advertisers and Publishers to get better results rather than other programs. Mazecore Ads Review : Text Ads Program Mazecore provides Text ...
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Grab 7 Years of Copyblogger Teaching in 20 Emails (No Charge)
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A Real Simple Solution to the Death of Google Reader
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Big benefits to advertise on social media sites
There are many business owners who still do overlook the power of social media advertisement for their business promotion. In fact, this is not new thing; there are many business owners who aren’t convinced about it. But this is simply because they do not know much about the power that dwells over the social media ...
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Understanding the Cost of Living in Thailand – Rent, Food & Entertainment
How would you like to live in a tropical paradise where a meal at a restaurant costs $2, a taxi ride costs $3, and apartments rent for $200 per month? For decades, Thailand has remained one of the most popular destinations for anyone looking for a tropical climate at a low cost. Just 20 years [...]
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Understanding the Cost of Living in Thailand – Rent, Food & Entertainment is a post from the Money Crashers personal finance blog.
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Friday, March 22, 2013
Sell More with Quality Ecommerce Website
eCommerce websites are designed to sell – it’s their main goal, but, sadly in reality, we often see online retailers using the copy of the product manufacturer to describe to the potential customer its characteristics and value; often repeating inadequate copy on every service or product they sell on their website and failing to [...]
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A Few Hours Left to Grab Every WordPress Theme We Make at a Silly Low Price
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B&N Launches New BOGO Sale – Buy a Nook HD+, Get a Free Nook Touch
Remember last year when Barnes & Noble ran a couple BOGO offers for the Nook Color and Nook Touch? This year B&N went one step better. Buy a $269 Nook HD+ any time between 24 March and the end of March and they will throw in a free, new Nook Touch. This offer is good [...]
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Ed Felten on the new freedom to tinker
type="html">Felten's post is worth reading in full. Among other things, those who want the freedom to tinker should oppose the new servitudes, including licenses and the DMCA. I would add that tinkerers come in all flavors; the fans I work with are tinkerers, both with technology (fans as zine publishers, video editors, etc. have always been user-innovators) and with texts. So to Felten's list I'd add media fans: "[T]hose who support different aspects of the freedom to tinker need to recognize themselves as allies. If you’re motivated by phone unlocking, or if you’re passionate about preserving white-hat research, or if you’re trying to protect the legality of a legitimate but disruptive product, what you’re really fighting for is the freedom to tinker. Even if you disagree about other political issues, you can be allies on this issue."
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Getting A Better Understanding Of Hreflang
Many SEOs start off by looking after local clients. I offer my SEO Services to Melbourne (Australia not USA) based businesses with a strong focus on ranking in Melbourne and the SEO strategy for getting them ranked have a strong local flavour to it . But like with any business as they grow they want [...]
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Archos GamePad Now Available in the US for $179
It looks like the many times delayed WkiPad won’t be the first Android gaming tablet on the market. The Archos GamePad is now available on a number of US retail sites, and while this 7? tablet does not have the impressive specs of the WikiPad it does have the benefit of being available. The GamePad [...]
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Indie eBook Distributor Booki.sh to Cease Operations
Australia’s own ebook distributor Booki.sh announced today that they will stop selling ebooks in June 2013. We have been privileged to work with Australia’s best independent booksellers as we all fought for a place in what is a difficult market, and we did not come easily to the decision to end our retail operations. We [...]
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SEJ Attending Affiliate Management Days San Francisco
This year Search Engine Journal will be attending Geno Prussakov’s Affiliate Manager Days in San Francisco on April 16-17. I would love to meetup with any Online Marketing gurus out there in the affiliate world. I had the chance to sit down with the founder of AMDays, Geno. We were able talk about what’s going [...]
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Why You Should Fire Yourself
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There’s Still Time to Join Us at SOBCon this May and Save $100
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Bloomberg Agrees With Me – Samsung Wants to Sell Liquavista …
And Amazon wants to buy it. Bloomberg is reporting this morning that Samsung is looking to sell Liquavista, their Netherlands-based screen tech research firm. According to Bloomberg’s unnamed source the rumored asking price is under $100 million. Amazon is also rumored to be interested in buying Liquavista. I told you so. Way back in January [...]
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Can Facebook Graph Make You Money?
Facebook’s latest innovation – Graph Search, went live in January. Currently it covers four basic searches but it is expected to expand over the coming years. Graph Search uses the one trillion or so social connections on Facebook to provide relevant and professionalized search results. The name itself is derived from a sociogram which Facebook [...]
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Free Shirt Friday – KJRocker.com
Happy Friday everyone, this weeks FSF come from KJRocker.com. This is an affiliate marketing blog run by a loyal fan! If you would like to see your website or company featured on Free Shirt Friday click here.
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DMCA conference: rulemaking
type="html">Panel 2: 1201 Rulemaking
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Moderator: Marcia Hofmann, Electronic Frontier Foundation
Rob Kasunic, U.S. Copyright Office
Concern over the effect of the prohibition on noninfringinguses, given the newness of 1201. Congress didn’t prohibit direct circumvention of rights controls—where therewas legal access, under the law they’d be free to circumvent a TPM protecting a§106 right if they had the wherewithal to do so. Statutory exemptions also exist. Triennial rulemaking was a failsafe forunforeseen consequences. Originally designed to be “on the record” rulemaking,which would have been much more formal. Subsequentlychanged to be less formal. Exemptions can be made for a class of works; withconsultation with NTIA, the Register would make a recommendation to theLibrarian of Congress. The idea was thateach three years would be a de novo review of the evidence.
2000 was particularly difficult because the prohibition hadn’tgone into effect, so anticipating its problems was a challenge. Lolly Gasaway: if it would be nice iflegislation could be understood by the public, but short of that it would benice if copyright lawyers could understand it. There were challenges ininterpreting the statute! Looked at thelegislative history. Congress didn’tdefine key terms such as “a particular class of works.” Much of our history hasbeen developing that interpretation. Also challenging because Congress createdan access/rights control dichotomy.
Hoffman: having been involved in every rulemaking, what arethe characteristics of a successful campaign for an exemption?
Kasunic: there are written documents—Seth Finkelstein,obtained a few exemptions, published a piece that really went through the stepsof what he did in 2000 and 2003 on censorware. Look at the people who’ve been successful; don’t have to be alawyer/sophisticated firm; some people like Finkelstein or Joe Montoro—the dongleman—who received an exemption 3-4 times were individuals. They presented a verystrong factual case. We get a lot of legal argument but the most importantthing is the identification of facts in the marketplace. Coming to the hearinghelps too.
Rebecca Tushnet, Organization for TransformativeWorks/Georgetown Law
Our exemption: noncommercial remix video. Alice in Wonderland quality to many of thearguments: big copyright owners argue that circumvention tools are so widelyavailable, that screen capture software is also so widely available, and thatthey would never go after a remix that wasn’t fair use even though the remixerwas breaking the law, so no exemption is necessary.
[My thoughts on representing a group that by its nature isfluid, not organized, highly diverse, and not able to hire lobbyists; that isculturally disadvantaged; that is made up primarily of women and entirely ofnoncommercial artists, with all that entails for perceptions of the worthinessof our endeavors; the barriers are many and yet this is a group that isrequired to go to policymakers and argue its legitimacy and will be required todo so in perpetuity unless there is a change.] [Do works have to begood/intelligible to outsiders to look worthy of protection? Who gets to say what tools an artist can use? Discussion of opponents about how we didn’treally need high quality footage, and that if we were really good at digitaltechnology we could use screen capture to get good results, so obviously it wasthe artists’ problem and not the problem of anticircumvention]
Many have agreed with Ed Felten about the process: documentariansand people with perceptual disabilities, who continue to show up, have still notedover time, people have been discouraged from proposing new exemptions in lightof how the system has been set up: the Copyright Office's overall stinginess incutting down proposals and ignoring ones that don’t have live people come to DCor to San Francisco to testify for them. The process just keeps getting more extensive—I participated in 3comment rounds, hearings, technical hearings, letter correspondence, and remainedready to answer more questions from the Copyright Office. The Copyright Office’scharacterization of the burden of proof and the standards the Office hasimposed are, in my opinion, higher than what the statute requires—to show "substantial"adverse effects to the Office’s standard often requires breaking the law todemonstrate what you want to do and thenconvincing the Office that there are a bunch more of you out there. The Office otherwise says the proposed use isjust hypothetical—but of course in many cases it is hypothetical because peopledon’t want to break the law. As Ed Feltensaid, many legitimate security researchers now just stay away from DRM becausegoing back every eighteen months—for a triennial exemption—is just tooburdensome. In the first two roundsthere were many proposals, and many denials; the number has gone down notbecause DRM isn’t used to do things that suppress lawful uses but because peoplestopped applying.
Bruce Lehman told us about the process of enacting the DMCA:the people who make the next generation of creative works and technologies don’thave lobbyists on K Street. The peoplewho will be innovating 10 years from now generally don’t even have driver’slicenses right now! The law should be open to technologies that surprise us.
Christian Genetski, Entertainment Software Association(successfully opposed a request to allow videogame console jailbreaking)
In the past, represented companies to protect TPMs thatprotect the game experience by using 1201. Didn’t have much awareness of rulemaking. Actively practicing; not part of hisconsciousness until he became general counsel of a trade association.
His experience was that it was a fair process. Came in with a proposed exemption that lookedanalogous to an exemption that had been granted in the prior proceeding. Neededto marshal facts to show differences. Didn’t have difficulty marshalling resources. There was substantial evidence on EFF’s side,but we tried to demonstrate that the record was different for mobile phones—functionalityand competition issues dressed up in DMCA/fears of overreaching. By contrast,we made the case that game consoles: closed ecosystem to protect 3d partyworks, at the core of the works the DMCA was designed to protect.Homebrew/independent games—we didn’t try to contest their legitimacy, but rathershow that manufacturers were well on the way to accommodate those consistentwith the need to protect investment in other works that made themarket/platform viable. The results of the process validated that not everyissue is the same. With us, our evidenceshowed that circumvention used for homebrew opened the doors to the entireplatform and the tools were mostly being used to promote infringement, and thatwe were making a real accommodation of the noninfringing uses. Our exemptionwas denied, while the mobile phone exemption was granted.
The process can work. Doesn’t think the DMCA is necessarily broken. Flaws & imperfections, sure. With anystatute, edge, aggressive uses of the statute by creative litigators whoseclients want an activity stopped aren’t unique to the DMCA. You wouldn’t find 1-count DMCA complaints—contracts,torts also pursued (ed. note: with very different risks/remedies). Adjust to abuses versus faithful applciation. A fresh look every 18 months at themarketplace seems like a better, more flexible idea than going to Congress fora legislative fix with meetings on K Street. Congress moves slowly and then you have to go back. There’s an executionissue and maybe a burden-shifting, but every 3 years might not a bad idea.
Hoffman: burden properly allocated on requesters?
Kasunic: we’ve thought that this should be considered w/r/texisting exemptions, to allocate the burden to opponents. One thing to keep inmind is that rulemaking isn’t necessarily and can’t by design be the answer toall these interests. Adjunct to thestatute.
What we’re looking for is how to improve the design, not therulemaking itself—but for the rulemaking, vidders would have been left out inthe cold.
Copyright Office isn’t assessing good quality/legitimateart. Looking for noninfringing use. Not raising the bar beyond what the statute:when we use the term “substantial” we aren’t using it in the APA sense of a higherburden of proof, but rather that the evidence can’t be mere inconvenience oranecdotal evidence, but rather must show there’s substance to the problem. With vidding, it was questionable whether theunderlying use was noninfringing, but there were enough examples that it wasreasonably probable that they were noninfringing. Sufficient evidence. Might still be appropriate for Congress tostep in, or to shift the burden to opponents on an existing exemption. Two exemptions in 2006 and 2009 related tosecurity testing, one related to the Sony rootkit and another related tovideogames. When Congress crafted the statutory exemption, it didn’t foreseethese situations when TPMs themselves would be the source of the problems. Brewster Kahle’s preservation exemption: alsonot something that would change every 3 years so wouldn’t need revisiting—Congresscould look at that.
You have to have adequate authority to actually deal withthe problem that you’re addressing. One thing is that the exemptions onlyaffect 1201(a)(1)—if you obtain exemption, you need the personal wherewithal tocircumvent—you end up needing a tool to do the circumventing. In a bizarre twist, there are so many toolsthat do enable decryption, and since copyright owners haven’t wiped those offthe internet, when an exemption issued for DVDs it made it possible to purchaseunlawfully distributed tools to lawfully accomplish exempted purposes. This isbizarre.
RT: I well understand that vidders would’ve been left out inthe cold absent the rulemaking—which was my point about the inflexibility of thelegislation.
The Copyright Office is in general committed tonondiscrimination against artists; of this I have no doubt. However, the exemption for remix requires usto show that we couldn’t have used source of lesser quality, which is a judgmentabout artistic merit and need, made by someone other than the artist.
Kasunic: there are certain situations where it’s a hardercall where we talk about artistic versus educational use. Less need for quality for educational use.(Which is my point about content judgments.)
Q: has this been used in court?
Genetski: we used rulemaking as precedent in some cases,recognizing that it had limited value as precedent was still helpful.
Granick: Tracfone still sued bulk unlockers under theargument that the exemption was “solely” for purposes of connecting to network,and unlocking for purposes of resale wasn’t qualified—Tracfone has won thosecases. How a recycler would fare incourt is unclear.
Q: what in 1201 makes you think Congress is needed onburden-shifting? Why not reform the proceeding?
Kasunic: there’s very little in the legislation about therulemaking process. But the legislative history was clear that every year was aclean slate and the default would be that 1201 would stay in place. Congressdidn’t necessarily believe there’d be a need for exemptions, but created thisas a failsafe. Turns out, it does playmore of a role than Congress anticipated, and we’d be happy to have Congressgive us more information—we’ve asked a couple of times, beginning in 2000. We’ve tried to keep it flexible. But sometimes we’ve seen evidence that themarket has changed and we’ve responded to it, for example on the definition of “classof works” considering the nature of the users or the use.
Q: Copyright protects against copying and the creation ofderivative works. Preventing actual copying is important, derivative works isnot. If you narrowed copyright down to an anticopying rule, would that becost-justified.
Kasunic: I don’t know you can go that far—there arecertainly situations where derivative rights are important—translation, movies.But it’s worth thinking about especially with the line between derivativenessand transformativeness for fair use being a fine one.
Genetski: you’d quickly run into similar and familiarlinedrawing problems when talking about what level of reproduction is necessary.Longrunning and successful franchises and expansion packs, new iterations ofgreat stories in games: there’s real value in certain contexts to derivativeworks.
RT: people have been thinking about good definitions ofderivative works, like ChristinaBohannon, and I wrote anarticle about why we should get rid of “substantial similarity.”
Lehman: Pallante didn’t mention revisiting the DMCA in herproposals; is it time for a significant overall review of copyright law?
Kasunic: the speech Pallante gave at Columbia was anabbreviated version of a longer written work, and part of what needs to occuris reconsideration of DMCA; could think about Title I and Title II both, as a delicatecompromise. In particular, the Register’srecommendation to the Librarian has singled out 1201 issues for Congress torevisit.
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DMCA conference: judicial perspective on 512
type="html">512 Cases: A Judge’s Perspective
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Facilitator: Judge Ronald Whyte, Senior United StatesDistrict Judge, Northern District of California
Judge A. Howard Matz, Senior United States District Judge,Central District of California
What lawyers should do to make disputes more meaningful tothe judge. The process of achieving anappellate decision is radically different from the trial level. Not just the benefit of 3 minds; the recordis frozen; no preliminary injunctions/other matters making the trial judge’sjob challenging. On any given day he wasworking on a copyright case, it’s highly likely that at some point that day hewas also imposing a sentence in a criminal case or doing other criminalproceedings; dealing with a copyright case in a quick manner fairly andimpartially when the stakes/status of the litigants is so different—David andGoliath; we get a lot of subpoenas when the user turns out to be a teenagerseeking music noncommercially. We have a flood in the Central District who aren’trepresented by lawyers. Not new to havepro se plaintiffs, but new to have pro se defendants, due in part to collapseof housing market and removal of eviction proceedings to federal court but alsodue in part to IP. Some firms are goingafter little people; judge has obligation to look for the merits, but it’s notcomfortable.
All of this is going on while you’re dealing with theniceties/complexities of the DMCA. Very often the judge who has to address yourdispute is doing so without much guidance from above in the way of precedent. Good idea to ask the judge what they’d like youto focus on. Is it new technology? Is it implications for broader economicconsiderations? Is it the words of the law? Can be hard to prepare, but if it works, it will really help you helpthe client and the judge.
Told story of a case in which the defendant was allegedlyusing stolen source code. Was baffled; in that case, he did something rarelydone but potentially terrifically helpful: appointed his own expert after ahurried procedure inviting both sides to recommend people for his considerationto teach him some basics about the source code. The experts were veryaccomplished—academics from established universities. Did try to at least havemore than a working familiarity with the basics/fundamentals, sitting side byside with a UC-Irvine professor. We did that over weekends. Process of deciding who should pick shouldinvolve lawyers. We kept a record of our communications, maintaining thosenotes and allowed lawyers to request production though they didn’t. Learnedenough to preside over the case. At the end, he asked the expert for his view(sealed) and he looked in the sealed envelope after making his decision—he endedup disagreeing with the expert.
Variants are available to judges—can have not a technicaladviser for the court with the right to communicate off the record orcourt-appointed experts testifying in court. More common in patent cases.
Kramer: you presided over Perfect 10 and UMG; did you knowtheir significance?
J. Matz: knew it would go up; it’s rare for a district courtto create a precedent without appellate review. Very often judges make decisions that need to be made, even though they’renot comfortable making them—sometimes they think that if they’re wrong, thecourt of appeals will reverse them; sometimes they just have to act. It’s notcomfortable to issue a ruling no matter how hard you’ve worked when you know thatyou don’t know the full record the way you would’ve known it if you were alawyer on one side. Must make choicesabout how to spend time.
Tyler Ochoa: Frequent 512 issue is what “knowledge” means.
J. Whyte: I didn’t think knowledge was a big issue in Netcom. “Knowledge” was used without having to resolve exactly where theknowledge was; tough question.
J. Matz: can arise in terms of the adequacy of takedownnotices. Has been frustrated in a casewith more than 30,000 works were the subject of an infringement claim, and manyworks infringed many times; issues of TM too. Issues with adequacy of notice aswell as adequacy of assignments/ownership claims. How do lawyers get their arms around suchsprawling facts? Knowledge is a spectrum.
Monahan: start with common sense. A general claim that there’sa bunch of infringing stuff on your site—if that’s sufficient, the DMCA isworthless. If someone can send a letter saying “take this item down and allfuture items of this sort” and have that be effective, that could also shiftthe monitoring burden to eBay. Very hardfor eBay to have actual notice outside of DMCA—it would always be red flagknowledge unless an eBay employee knew the guy who was posting the illegitimatestuff.
Whyte: what if it’s something that’s often counterfeited?
Monahan: unofficially, yes, we went as far as we could withproactive, voluntary searching to figure out non-brand-specific terms forcounterfeiting—slang terms that we learned over time were indicia of piracy,e.g., “silver discs” in music (? This might be slang I misunderstood). But atthe end of the day, if there’s no indicia on the face of it we have the rightsowner make the call. We apply the same approach with TM; worked so well incopyright that we did it in TM too. Have reached out to some owners for helpwith indicia.
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Please Don’t Interrupt
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How to Manage a Content Team For Your Different Clients
It is no secret that guest posting is something that every company wants. Contributing guest articles to other websites is a great way to improve your organic traffic by earning a good variety of backlinks, not to mention help you gain some visibility amongst the community and those interested in SEO and online marketing. Creating [...]
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My Monthly Income Report – January 2013
My Monthly Income Report – January 2013 is a post from: The Smart Passive Income Blog]]>
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Santa Clara Internet WIP: speech
type="html">Speech #2—Parlor B
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Anjali S. Dalal / Administrative Constitutionalism and theGrowth of the Surveillance State
People apparently think it’s worse for the gov’t to shutdown Reddit in response to IP claims than for the government to pervasivelysurveil for national security purposes. Is this really justified, or merely something we haven’t thoughtthrough?
Cellphone carriers received 1.3 million demands forsubscriber information for gov’t investigations. Law enforcement requests to third partieshave been growing 12-16%/year. Twitter received 849 requests globally, 679 fromthe US; subpoena is sufficient, without a warrant. Third party doctrine eviscerates any privacyinterests in information you share with third parties. This may have made senseat one time, but we now have no idea who has access to our info in any internetinteraction—so many different intermediaries touching the information. Littleunderstanding of who has possession and control.
CISPA: allow unprecedented sharing between private companiesand the government; creates exceptions to all privacy laws; undefined nationalsecurity purposes; no privacy minimization required; entities are granted fullimmunity for any lawsuits; no FOIA available. But in addition to CISPA, thereare a slew of other laws & practices that allow gov’t surveillance.
Emerges when we elevate national security over civilliberties; the FBI overtly acknowledges this in its priorities. Our government feels it’s doing the rightthing by engaging in pervasive surveillance. NYPD targets Muslim studentgroups, framed as guarding against the threat of terrorism. Bloomberg: “this iswhat you want the NYPD to do.” That’s the concern with surveillance culture: we’reproud of it.
Is this level of gov’t surveillance new? No and yes.
Administrative constitutionalism uses agencies as frontlineof constitutional interpretation. BillEskridge & John Ferejohn moves beyond descriptive account and argues that agenciesare and should be constitutional norm entrepreneurs—trial balloons. Consider the DoJ’s normentrepreneurship. Church Committee in70s investigated US surveillance practices and recommended mostly speech-basedways to reform the FBI. Other guidelinesfor intelligence gathering exist—Levi Guidelines. By their nature, intelligenceinvestigations chill speech, so you need deliberation before suchinvestigations. Slowly, over 40 years,we relaxed the restrictions, allowing more and more investigation. Theprobability of stopping a crime needed to be lower. The kinds of crime covered became broader andless associated with national security. Freeing field agents from the bureaucracy that hindered them. By 2008,can open investigations for “assessment” with no factual predicate.
Also, things are more secret now: citizens don’t know what’sgoing on. FBI conducted 82,000assessments on individuals, but the process of having to open a file (which hadno factual predicate) was too burdensome, so they created a pre-assessmentprocedure which was even easier and less documented.
Her argument: administrative constitutionalism has slowlyshifted the balance between national security and free speech. This has allowedthe surveillance culture to become entrenched.
Q: Connect the story you told to the takeaway—this is aboutnorm entrepreneurs. Playing devils’advocate: you’ve shown that a bad thing happened, but should we blameadministrative constitutionalism/norm entrepreneurship? Doesn’t it depend onother things—there may have been popular control all along; Congress had someability to check in and following 9/11 Congress was supportive—not just the FBIover/reacted. Does administrativeentrepreneurship work better with other agencies? How generalizable is this?
A: There wasn’t actually any control over the agencies;there wasn’t anything explicit. In 2008, Mukasey finally went to Congress totalk about the guidelines—not to get approval—and a Senator even thankedhim! This might be implicit consent, butthere was no outward check—no oversight by Congress, judiciary, public.
Q: why is agency singular? When things go off the rails iswhen you only have one agency, whereas checks and balances can be created byagencies fighting/turf battles. CALEA:FBI wants more authority and Commerce is resisting.
A: Definitely. But civil liberties lacks a constituency.
Q: Georgetown Big Data event: General Counsel for NID arguedthat it was the agencies making these decisions; when they want to share info,they enter into complicated negotiations about who will control the info, whereit will be housed, etc. Memoranda of understanding are where privacy rulescome. But that’s a ridiculous way to replace the 4th Amendment andpublic oversight. Demonstrates that agencies are convincing themselves thatthey are making up the rules and taking care of us through these less observableand more informal processes.
Q: why should the third party doctrine care about whetherthe discloser knows the identity of the third parties or their number?
A: if the doctrine is based on the idea that the disclosureis making an active, knowing, relational decision, then the predicate is gone—Ican’t hold these entities responsible for a wrongful disclosure and there’s noway for an individual to make a rational decision about disclosing to allthese.
Felix Wu / The Ontology of Speech
Questions of the form “is X speech?” Why do we ask this question? The way in which the question is framed isn’ta helpful starting point, if that means “is X capable of serving an expressivepurpose/conveying a message?” Anything has that capability, including aspeeding car. Teasing apart what’sreally going on: There’s a need tobalance the expressive purposes but also the non-expressive effects of this actor activity in the world. We can’t have either inquiry alone. Resolving the conflict is hard and doesn’tclaim to have a complete answer. Becauseoften we ignore one of the two strands in the caselaw. Worthwhile to discuss evenif we don’t change our mind about how cases come out.
Snyder v. Phelps. Breyer: we never let people slug otherpeople in order to get a message out. What’s going on in Snyder? The protestors are trying to convey aparticular political message. But the protest itself might well be understoodas directly inflicting emotional harm at a funeral. Agreement/disagreement with the politicalmessage isn’t the source of harm—or is it? That kind of harm results from expressive purpose rather thannonexpressive effect. SCt makes prophylactic rule: too hard to tell differencebetween emotional harm from the means of conveying the message and theemotional harm from the message, so we give breathing room to speech. So in which situations do we needprophylactic rules?
So, start with whether search results are speech? Search results = Google conveying a messageabout what results you’d like to see? Inone sense, yes, a message is being conveyed. It is also limiting your ability to reach other things or directing youto reach some things over others, like a retailer deciding what to stock onshelves—though 1A scrutiny would never apply to the latter, even though onecould claim that the retailer’s selection sends a message. By speaking in thoseterms, we can start to think about what weight to grant to Google’s interest inthis case.
What about data collection? The effects of the sense of being surveilled might itself be a kind ofindependent harm that could be cognizable, but that’s also relevant withrespect to information dissemination. The harm of feeling watched also occurswhen information is used. So it’s not clear that collection and disseminationare good lines for 1A purposes. That doesn’t mean the 1A necessarily requiresscrutiny for both of these; rather it might mean neither. Harder to draw a line between those two formsof privacy harms.
Copyright: traditionally the view has been that copyrighthas been justified because it encourages more speech. His approach: copyrighted works haveexpressive potential and nonexpressive effects. Dissemination is a way of monetizing an intangible consumptivegood. Consumption isn’t all there is,but there are two aspects. We lose sight if we only focus on the ability tospeak through copying/creating transformative works; look at the nonexpressiveeffects—the inability to monetize consumptive goods. Thinking about it in those terms might changethe 1A valence of some aspects—basic rule against copying v. idea/expression orfair use. Might distinguish between substantially identical copies andsomething else, especially w/r/t intermediary liability. Could impose obligation on ISPs to reasonablygo after substantially identical copies, but CDA immunity for everything else.
Fred von Lohmann: the first case recognizing code as speechwas Bernstein v. DoJ—a licensing requirement imposed on cryptography relatedcommunications. What does your analysishave to say about prior restraint?
A: Not sure—code is a clear example of this dual situation. Traditionally the bad effects are the resultof the expression; if the relevant effects are nonexpressive rather thanexpressive it’s different.
Carlos Luna: is this an issue of the policies behind why wehave free speech or a disconnect between cases?
A: the sense in which I use “ontology” is questioningwhether speech exists as a thing. The thing we need to protect is not acategory of things but a purpose to which things can be put. (Paging Mike Madison.)
Luna: then shouldn’t the ultimate question be does theconstruct itself meet the policy that underlies the category “free speech”?
A: yes, then you need a theory of the 1A. Wants to carve out nonexpressive effects,things that aren’t the result of the expression in the speech act.
Blitz: would help to distinguish your proposal from arequirement of content neutrality. Some peoplemight respond: what Corley does issays that we apply O’Brien for acontent neutral regulation. You’re using expressive not just to covercontent-based but also maybe some content-neutral categories. Is it only communicative or are there otherways to infringe on the expressive aspect of an activity?
A: Some of what I mean is content-based under currentdoctrine. If we treat data/code/searchresults differently—that might be understood as content-based. It’s not viewpoint discriminatory but it iscontent-based. Blitz: but that mightstill be nonexpressive. Wu: Google isexpressing something, but there’s also a nonexpressive aspect. That could be classed as content based but he’dstill ask about which strand is at issue. He’s trying to define a class ofthings not even subject to intermediate scrutiny—that’s how content neutral itis.
Jane Bambauer: Not a clear enough line between nonexpressiveand expressive harm. Is the only form ofexpressive harm is the harm I feel from disagreement? That seems troublinglynarrow. The emotional distress of a family is not nonexpressive in her view. NYC’s decision to throw up billboards toshame teen mothers—where would you put shame? Is that an expressive harm?
A: Disagreement is not the only form of expressive harm. It’sexpressive if it has the potential to change your mind, not your viewpoint, butchange how you think about something. Tryingto distinguish that from emotional hurt. More along the lines of an insult—the exclusion for fighting words. Itdoesn’t really change your mind about anything, just designed to convey orinduce an emotional state. The father in Snyderwasn’t going to change his mind about anything; his emotional distress could’vebeen the result of the expression rather than the way in which the protestorwas doing it.
RT: Fred Schauer and what is thinkable—you are starting withthe edge cases; all 1A claims involve claims that nonexpressive harm ishappening, otherwise they wouldn’t be suppressing it and there’d be no rationalbasis for the regulation. Why doesn’tdraft card burning have the potential to change your mind? Why don’t high drugprices have the potential to change your mind about whether gov’t regulation ofthe healthcare market is a good idea? Doesn’t bullying try to make you hateyourself? Or perhaps try to make youtake a swing? Copyright: of course the harm comes because of the expression:because I torrented and enjoyed TheAvengers, I don’t pay for it! [NB:purely hypothetical. I paid for and plan to enjoy The Avengers many times!] An emotional/rational distinction alsowon’t work because we only think with our emotions.
A: is the bully conveying anything? Yes. There’s no such thing as a purelynonexpressive activity. My claim is that’strue of anything. [And is there such athing as a purely expressiveactivity?]
Defamation’s harm is exactly that someone else’s mind hasbeen changed. Economic harm of copyright infringement comes from consumption. Not claiming it’s physically possible to haveone without the other, but that they are conceptually independent.
[RT: But then they are always conceptually independent; thisis true in defamation too where we can just have the concept of economic andemotional injury from the defamation, just as the alleged economic harm ofcopyright infringement works through having consumed the infringing material. Itake it Wu’s argument is that you’re only harmed by defamation if someone’smind is changed, but the copyright owner is only harmed by infringement ifsomeone was exposed to and satisfied by—satisfaction being a result of mentalprocesses—the work and therefore didn’t buy it (or didn’t like the work andwould’ve bought the work before finding that out absent infringement).]
Marc Jonathan Blitz / School, Work, Speech, and CyberKant
Speech as designed to safeguard a certain sphere of autonomyand activities related to it—Rodney Smolla: speech is connected to thought in amanner that other forms of gratification aren’t. Steven Heyman: Boundary between the outwardrealm of the state and the inward life of the individual. Social convention, historical accident, and “satisficing”constitute First Amendment law—even if you can’t protect all activities key to autonomy, you protect enough to preserve thecitizen against the state. Theassumption is that we shouldn’t do this retail but rather wholesale: verystrong defaults even if certain things don’t fit well into abstract definitionsof expression.
Public forum doctrine began as creative move by thecourts. Kant asked how in a free societywe can be so limited in professional, military, and other ways? Can be free asa scholar while constrained as a priest—you can step out of your role and thatdefines freedom. Robert Post uses this to distinguish between democraticlegitimation and democratic competence. The reason he focuses on speech and work is that Kant’s question remainsimportant. A priest can’t just step out of his role and criticize everything hestands for and still expect to give Mass the next day. Same with schools andworkplace speech. The direction of freespeech law is shortchanging the necessary distinctions by pushing themisleading view that speech not about political topics or topics of publicconcern gets very little protection, sometimes none. This conflicts with speechas scaffold for mental autonomy.
Internet connection: the worry is that the internet iseverywhere and can affect everything, and on that basis people will lose theirjobs and get kicked out of school.
Bambauer: Liked the idea of promoting 1A approachsatisficing in the sense that we build up categories (whether rules orstandards) to know what the safe spaces are.
A: Yes, but if we allow room for history, the problem isthat it may reduce to power politics: in 1939 the Court saw an opportunity in Hague v. CIO to make parks safe forspeech. 1A institutionalism mightprovide a different way to draw boundaries, other than public forum doctrine—identifyingspaces for preserving speech (institutions) but admitting that there’s alwaysgoing to be some arbitrariness.
Anupam Chander: what do you think is your most controversialpoint?
A: maybe not controversial enough. Might not have much company in liking publicforum doctrine. Kennedy has defended it v. Breyer’s balancing. Kennedy seems to like the rigor ofcategories.
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