Do you remember conservative radio talk-show host Michael Savage? He sued a Muslim advocacy group for copyright infringement because it dared to quote what he said on the radio as part of an advertiser boycott.

A U.S. District judge tossed the suit, and supported the doctrine of Fair Use, saying that anyone who listens to a public broadcast is entitled to take excerpts and use them for purposes of comment and criticism. See EFF’s Takedown Hall of Shame for other prime examples of copyright abuse.

Recently, one of my local television stations asserted copyright through a bogus DMCA takedown notice to get a blooper by weatherman Peter Bouchard removed from YouTube.  Of course, the more WHDH tried to get copies taken down, the more attention this unfortunate, though funny, incident received. The mistake of Mr. Bouchard was compounded by the legal mistake of not considering the fair use of this segment – and the PR error of not considering the Streisand effect.

Unfortunately, some bogus takedown notices are effective in censoring critics and clowns in legitimate public speech. Archer Daniels Midland (ADM) has been on the receiving end of lots of criticism recently. The recent Matt Damon film, The Informant!, was about ADM and price fixing. They must be tired of being the poster child for corporations operating above the law.

So ADM responded with copyright takedown notices when someone took a bland and boring video of their CEO droning on about their role in the economy and added in a track of what she “might really be thinking.”

Continued

This week the ACLU filed a lawsuit against the Boston Police Department for using “wiretapping” laws to prevent citizens from taking video footage of police arrests.  Some would naively think such laws were passed to protect the people from the authorities, not vice versa. (details in Law.com)

Following Training?
Boston police spokeswoman Elaine Driscoll rejected the notion that police are abusing the law to block citizen oversight, saying the department trains officers about the wiretap law. “If an individual is inappropriately interfering with an arrest that could cause harm to an officer or another individual, an officer’s primary responsibility is to ensure the safety of the situation,’’ she said.
Boston Globe

Your Digital Papers, Please?
Last week at the Davos World Economic Forum, Microsoft’s chief research and technology officer floated what to date has been an obviously bad idea: that Internet users should be licensed.

The suggestion is covered and advanced in a Time Magazine article that takes the familiar dystopic theme of the Net as the Wild West, requiring standards and regulations for safety, just like modern transportation systems. Governments run highways, so why not information super-highways?

Time’s Barbara Kiviat suggests the Net needs a sheriff, and that licenses would do the trick. Licensing would authenticate identity, and give governments something to revoke, inspect, and otherwise use to claim standing in order to administer this stateless medium.  After all, a bunch of private machines connected by private networks aren’t architecturally under the control of the state. In a world of online risk, we need governance through governments.

I think we’ll hear more of this theme, and that it will be advanced on the need to prevent crime and protect  kids.  More surveillance and censorship will be positioned as bulwarks of child safety and perhaps national security.

Making the Case for Big Brother in the Americas
The many benefits of Big Brother’s watchfulness are neatly summed up by PredatorWatch.ca.

As someone who has done casework on finding ways to protect organizations from pedophiles, I’m all for raising offender inhibitions. But having police pretend to be sexually available kids is is misguided.  At best, it nails low-probability offenders; at worst it titillates and entraps a class of nasty, but perhaps otherwise benign, web users.

We’re Watching the Bad Guys; We’re Watching You

Internet filtering, censorship of Web content, and online surveillance are absolutely increasing in scale, scope, and sophistication in democratic countries as well as in authoritarian states. And to some degree, they support one another.

That’s the premise of Access Controlled, a book due out in April, edited by the dream team of Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain. I expect their research and perspective on this global trend will fuel a richer discussion on the costs and benefits of making online surveillance the new digital norm.

Last week I asked UsefulArts.us readers what they think may online law trends for  2010.  Here’s the first of what looks like a half dozen responses to that question.

The Coulrophobia Epidemic of 2010: trademark owners’ fear of clowns may be rational.
When a competitor uses your mark and pretends to be your company, that’s infringement. But when a clown mocks you with your own mark, that’s parody. And it may well be protected speech. And in an age of Twitter and viral video, mocking can be more deleterious than infringement.

Consider this fake press conference, at which an impostor U.S. Chamber of  Commerce announced its (not real) change in policy to support combating global warming. When the real Chamber shows up, it turns into an episode of The Office, which the clowns play to the Chamber’s regret.

From the above escapade, the Chamber filed a claim of trademark infringement and used a take-down notice to force the pranksters’ ISP to discontinue a parody website that supported the hoax. Was there a “likelihood of confusion”? Absolutely. And it was also classic parody speech.

Similar trademark claims have been made against NYTimes.se, which mocked The New York Times and corporations like DeBeers. We recently noticed The South Butt, a clothing line which mocks The North Face. And, only a few days ago, environmental activist Brian DeSmet received a complaint for mocking Peabody Energy.

In a world where Ashton Kutcher is considered a brand, a fear of clowns may be a viable business survival strategy.

Regulation of digital marketing heats up. States try it too.
I suppose the fear of regulators is a variation of the fear of clowns.

Continued

A few years ago I showed my wife a t-shirt from Marketo, the San Mateo-based lead generation company. They were revolutionary, and to underscore that they had a manifesto, and their shirt featured an image of Che Guevara.

My wife is a marketer who has lived in Central America; she immediately noted the use of Che was potentially offensive in parts of Florida, Latin America, and Eastern Europe.  In fact, I’ve learned that wearing that shirt in Warsaw could get me sent to prison. It’s true. (I thought it was just communist chic, but there its criminal.)

Evocative symbols of Europe’s fascist past have long been illegal in some European countries. Poland has gone further by banning symbols of communism. Poles can be fined or put in prison if they are caught with a item bearing the  hammer and sickle, red star, or the image of Che.

However, this isn’t sitting well with younger Poles, who are taking these still-emotionally charged images and disarming them through humor and fashion.

In America, we’ve seen African American and gay culture claim words used to persecute them. Nazism similarly has been discharged by spoofs such as Hogans Heroes, the spoof Werewolf Women of the SS, or the band Women of the SS. When Prince Harry dressed as a Nazi for Halloween, he was doing what youth do: grabbing hold of previously charged symbols and satirically playing with them. This last example turned out badly for Prince Harry.

That’s what happened in Poland, just like what happened in other parts of the world, where trendy communist-themed bars popped up. Remember Pravda in Boston? And one restaurant that pokes fun at its Soviet past offers “trout from the fish shop wit the three-hour queue” and “Bulgarian peach pie: bartered for irons and Soviet cameras during the International Tourist Exchange.”

Get it? The past, though tragic, can be made silly to detached youth. And it can be healthy to satirize the most troubling aspects, acknowledge them, and at the same time disowning some of the baggage of the past. The Polish law saves feelings, but it’s restricting the next generation from stepping free of something it wasn’t part of and intend to own.

So to that end, here are a few of the images that, in my opinion, are neutralizing communism via humor and  pop culture. But remember, if you visit Poland, leave your Marketo shirt at home, and at the bar, don’t order “Lenin-ade” Or you could experience some Eastern European Prison Chic.

Back in 2007, I suggested that snitching was one of the killer apps of Web 2.0. Since then, WikiLeaks.org, the site for snitching secrets about governments and corporations, has been a success.

How do you measure success? Perhaps by the zeal with which legislators seek to investigate the website. Of course, judges have quickly raised free speech issues that  trump the desire to quiet those who spread secrets leaked by the powerful.

Here the latest from Harvard’s Citizen Media Law Project:

Unless you’ve been under a rock for the past few months, you’ve probably heard about some of the recent high-profile “releases” on WikiLeaks.

Back in November, WikiLeaks published nearly 573,000 intercepted pager messages sent on September 11, 2001. The week before that, WikiLeaks published thousands of documents and correspondence between British and U.S. climate scientists just in time for the U.N. climate conference in Copenhagen. WikiLeaks followed up these feats by releasing the air-traffic control recordings from the British Airways flight 038, which crash landed on December 2, 2008, and reposting a TSA operations manual that had been improperly posted on a government website.

All of this has certainly raised the profile of the three year old whistle-blower site.  But WikiLeaks is about to learn what happens to those that rise above the crowd: they become a target to have their head chopped off.

You see, the government doesn’t appreciate being made to look foolish.  Always ones to shoot the messenger, various Congresscritters are calling for an investigation and considering potential criminal sanctions against WikiLeaks and other sites that repost such material in the future.

Not to be outdone, Rep. Peter King has asked his staff to take time out of their busy schedules wringing their hands over the White House party crashers to investigate the release of those 9/11 messages. Even our friends across the pond are getting in on the act, issuing a take-down notice to demand removal of the BA flight 038 recordings.

Continued

What will they know of China, who only “.cn” know?
The Associated Press reports that China’s Ministry of Industry and Information Technology has posted requirements that all “.cn” china domains be issued only to registered businesses. AP’s coverage also says that any sites that have not registered with the ministry will be “taken off the Internet.”

I offer that purging of the “.cn” domain will establish it as a de facto whitelist. The Chinese government will then subject other domains to pervasive filtering and blocking.  See earlier coverage of China’s censorship machine. Websites not on the pre-approved “.cn” domain will increasingly test to see “Is my website blocked in China?” That filtering, and the discipline the fear of it causes, is exactly the goal.

Earlier this year China attempted pervasive filtering through a requirement for new computers to be loaded with a controversial Internet-filtering (and spying) software known as Green Dam Youth Escort.  An outcry by computer manufacturers prevented this law from being implemented. In light of this, segregating approved traffic to a single domain seems like an alternate route toward the same end.

With apologies to Kipling and Billy Bragg, what do they know of England, who only England know?

In April, the FDA sent warning letters to 14 companies, including Eli Lilly and Co and Merck & Co Inc., about their drug marketing online, saying that ads for certain products were misleading and did not contain any risk information.

But it’s hard to include risk information when your Twitter post is limited to 140 characters. So the FDA called a hearing. More than 800 people attempted to attend the event, which had seating for only 350. Fortunately, proceedings were streamed on video, so you can watch here.

Participants were asked to consider a number of questions, including how much responsibility drug makers bear for online content about their products and how to determine when online chats about a medicine are influenced by the manufacturer.

So, what do you think?
Should drug makers get a hall pass from disclosure rules in short format media? So they would Twitter, blog, and provide search advertising mentioning the benefits of their goods, without disclosing risks? Or is advertising Lipitor different than selling jackets at Kohls, and just not right for ad venues which risk and benefit can’t be adequately presented.

Discussions of regulating digital marketing were just below the surface at New York Ad:Tech.  My last post gave an overview of efforts to regulate digital marketing. Now, here’s an interview at Ad:Tech by reporter David Spark with Ted Murphy, CEO of Izea, the company that makes the paid blogging service Social Spark. Ted’s been in touch with the FTC, and that made it into the interview.

How Can Digital Content Pay for Itself?
The quest for “monetization” is still a major theme in digital publishing. Can long-tail marketing pay for itself? What about social media? How can the need for journalism get attached to new working business models?

Answer: Pay for Play, the “Oldest Profession” in Marketing
Pay for play is absolutely present in many non-digital business models. Gartner Consulting is being sued for this right now, for $1.4 billion.  IT consulting used to be rife with “sponsored authorship.” They wanted to avoid this kind of case.

I was part of this. First you’d pay Aberdeen to write nice but vague things about your firm, then after a few quarters of paying Garner they’d become aware of you, and you’d get mentions. There were only winks and nudges, perceived or real, exchanged with the subscriptions. Hell, the analysts that covered our space probably thought we all just had nervous ticks.

But firms, like the one in the video below, are explicit about “you pay, we get people to publish stuff for you.” Sounds a bit like the PR trade, but with less smoke and fewer mirrors, and more certainty of results.

The FTC would require that such relationships be made transparent to readers. And though this sounds reasonable, consider why political figures endorse and speak for one another. PR and lobbying are pretty similar: one pursues political favor, the other journalistic favor. Having a truth squad to enforce ethical behavior could be a medicine more deadly than the disease it seeks to solve. Regulation or not, your online BS detector is still the best defense.

When the government tells someone to shut up, we call it censorship and the First Amendment requires the government to defend its regulation. But what if the government just says, “Shhhh… could you please turn that down?”

Rep. Anna Eshoo’s Commercial Advertisement Loudness Mitigation Act (HR 1084) would do just that: require the FCC to issue rules that broadcast and cable TV ads:

(1) … shall not be excessively noisy or strident;

(2) … shall not be presented at modulation levels substantially higher than the program material that such advertisements accompany; and

(3) [that their] average maximum loudness…  shall not be substantially higher than the average maximum loudness of the program material that such advertisements accompany.

I understand Congresswoman’s Eshoo’s concern. Fortunately, nature has equipped me with a remote which allows me to a) mute loud ads; b) change the channel; c) turn off the television, unplug it, hide it in a cabinet and do better things for myself…..such as write on this blog.

For a great gift idea, see our post on the universal off remote, TV-B-Gone .

If the state can regulate the stridency of speech on broadcast television, what’s to stop them from regulating your speech more broadly? Representative Eshoo’s bill already proposes that the FCC should regulate volume on cable, which is a private medium financed by subscribers. There’s only a small step from regulating private content arriving for cable television to the Internet feed often arriving on the very same cable for one’s computer.

Continued