Thursday, August 27, 2009

"The Untold Story of the $11.3M Verdict that Changed the Way We Use the Internet" (Scheff, Dozier, Fertik): review

Google Bomb: The Untold Story of the $11.3M Verdict That Changed the Way We Use the Internet

The “model” case in which an anonymous blogger was outed recently has shifted some attention to an older case back in 2006, where Sue Scheff won an $11.3 million judgment against someone who had launched a tirade of defamatory posts against her and her organization.

And now Scheff, along with attorney John W. Dozier, Jr. has authored the 246 page paperback, “Google Bomb: The Untold Story of the $11.3M Verdict that Changed the Way We Use the Internet,” from Heath Communications, Deerfield Beach, FL, ISBN 0-7573-1415-5. The book has a foreword by Michael Fertik, founded of Reputation Defender. I won’t belabor the metaphor of the first two words of the book’s title (with a graphic on the cover that reminds one of the Enola Gay); suffice it to say, it refers to the enormous “asymmetric” power given to previously non-competitive individuals on the web that could be used destructively and therefore seems to pose “systemic risk”. The book provides plenty of details as to how suddenly search engines took on enormous influence on society and, sometimes, personal reputation (hence the book calls search engines “reputation engines”). Look up those first two words in Wikipedia (the more appropriate term is "link bomb").

Sue Scheff (website) is the founder of P.U.R.E., Parents Universal Resource Experts (website). Dozier is the head of Dozier Internet Law, "the Lawyers for Internet Business" (website).

The format of the book is a bit like a film docudrama (I think this would make for interesting indie film; I’d be game to help make it). Scheff tells the story of her trial and judgment, while Dozier presents “the problems.”

There is a lot of hyperbole in Dozier’s writing (I invoke the “Opinion Rule”). In an early chapter he characterizes some “Monsters on the Web”. I’ll name two of the ten types: the “nerd” and the “mis-leader”. He does start out by characterizing the nerd as “the guy who is scared to talk with a girl” (in person) but the rest of paragraph describes a legitimate problem. I hope he wouldn’t see me as fitting into these categories (as he describes them). But later he does take a swing at “amateurism” on the web, which he suggests would undermine legitimate journalism when the content it produces is legally and ethically harmless at face value. (That discussion reminds me of Andrew Keen’s “The Cult of the Amateur” which I reviewed here in June 2007.) (Dozier's term is "rookie".) He doesn't seem to care that "citizen journalists" (which he disposes with some metaphors) actually do enrich establishment content with nuance, detail and sometimes even more objectivity. He does offer some constructive comments about the public’s misperception of “free” content and resources.

But, make no mistake, a lot of the “unregulated” behavior that takes place on the Web is horrible (as we’ve seen by covering cyberbullying on this blog before). A lot of it would be seen as “unfair competition” (and Dozier provides numerous examples of how the bad guys attack reputations and narcissistically misdirect traffic to competitors [themselves]). Some of it can involve imposters, as the well known problem of spoofing sender-id’s in spam email. But more sinister is the way some people “mimic” others otherwise inactive on the Web and damage their reputations. So staying off the web may not be enough to defend the reputation of a “technologically shy” person. I don’t use Twitter (at least I’ve never sent a tweet), but I just took the moment to make sure I had a Twitter account so no one can imitate me. Balancing all of this is the idea that in many professions people must use social networking tools on the Web to sell to others.

There is “something” about the topology (and “asymmetry”, as I often point out on my main blog) of cyberspace that makes people in certain professions very vulnerable to cyber attacks. Part of it is the way reputation works in the real world (reputation assumes “guilty until proven innocent”). If you work with kids, parents cannot afford to take a chance, so rumor alone can be destructive. It’s a real problem for teachers and schools, and particularly now in medicine, where some doctors make patients sign “Internet gag order” contracts before treatment. I’ve actually had some personal experience with that situation as I have described on other blogs. Bad reputation can become viral, and affect other people, such as “involuntary” family members connected to the mark.

Dozier has a section that provides a chilling lecture on the effects of a large judgment on a "turnip" with no money. Collections can get brutal, even given the protections of the FDPCA (see this blogger post on the collection effort).

I’ve been little affected by the web activity of others, despite the huge search engine track on my name (try it, with Microsoft’s Bing, too). But in 2000 I was the “target” of a nasty flame on an AOL movie review message board because of the way I had interpreted the social position of the fishermen in the movie “The Perfect Storm” (based on Sebastian Junger’s book), which the speaker thought showed arrogance and conceit.

In the last chapter (“Marquesting the Future” with an embedded “E-Bill of Rights”), Dozier makes some suggestions for public policy changes. He wants to modify Section 230 of the 1996 Telecommunications Act to protect only “legitimate” ISP’s (who cannot edit content), and take away much current protection from bloggers or webmasters who host comments, and require some responsibility (how he would draw the line is hard to say). (To be fair, he does give some nuances: retain server logs, offer ICANN-like arbitration for immunity disputes, and have a DMCA-like takedown and safe harbor procedure, which we know is easy to abuase.) He also defends the need for strict protection of trademarks from web attacks (the “prospective dilution” of the 2006 law sounds relevant). He does give credit and support for self-policing on the Web (for example, he would probably support the Web of Trust concept and content labeling in relation to the COPA problem). He points out that the sacrosanct nature of anonymous speech (as part of the First Amendment) needs to be reviewed in the context of the “relativistic” speeds of Web travel, and that anonymity must never cover up harmful (libelous or harassing) behavior.

He also is against anti-SLAPP legislation and tort reform. Scheff herself claims that plaintiffs actually have huge burdens, and maybe that was true in her case; but we have read of many cases of frivolous lawsuits in other areas, which have many people to call for tort reform and insist that “loser pays”.

Indeed, Dozier’s suggestions, while somewhat tempered at the end, might eventually shut down free entry into self-publication on the Internet as we have come to know it. But if so, that poses a deep, existential question about the value of individual innovation on the one hand and the importance of familial and social commitments (not always voluntary) as motivators on the other.

I see another posting about the Scheff case on blogger here. But Maia Szalavitz has a counterpoint "Tough Love and Free Speech: How a 'child advocate' gamed the media on the case" in Reason Aug. 2007 here.

The Citizen Media Law Project Page for this case (Florida state court) is here.

Update: Aug. 31

Dozier has a typepad link that shows how search engines pick up "allegations" originally posted on blogs or websites as "opinions" and presents them as facts, so that others who encounter only the search results believe them. Apparently he believes that this alone can open speakers up for defamation. See his example posted in June 2009 here.

Something like this happened in 2005 when I was substitute teaching (see my main blog July 27, 2007). Just because a string shows up in a search engine, that doesn't make it so. I would say, use common sense. But maybe the law doesn't always do that!

Here's Dozier Law's YouTube video on this book (3 minutes).


Thursday, August 13, 2009

Lawrence Lessig's "CODE Version 2.0": an existential journey of a new way to regulate us -- through the Internet


Author: Lawrence Lessig
Title: "Code Version 2.0"
Publication: New York, Basic Books, ISBN 0-465-03914-6, 410 pages, indexed, paper

This book is an upgrade of this Stanford law professor’s earlier “CODE and Other Laws of Cyberspace”. And I like its existential approach. We need to think about what we mean by regulation, what we mean by freedom, and what exactly we have to lose. His basic premise is that the “code” behind our technology effectively implements “regulation” and that can be as important a limit to our experience of freedom as any government’s laws. He is somewhat skeptical of libertarianism (“what Declan doesn’t get” is his last chapter); sometimes you may need government when the asymmetric regulation by private interests impacts people more. His last paragraph warns that we are not in a “great time, culturally, to come across revolutionary technologies.” Compared to the Soviets who were caught by their revolution, “we, unlike they, have something to lose.”

The book is organized into five parts, with a sonata-like format, following his argument. He starts with the “admission” of the unregulability of the original Internet, but says that “Code” develops to implement regulation by various interests. There follows a “latent ambiguity” especially in areas like privacy and free speech, requiring new “fundamental” choices that the framers of the Constitution never encountered. He went on to describe jurisdictional conflicts, and argues that the government(s) will inevitably face pressures to make the Internet more regulable. In the world of regulation, there is basic antipathy between “East Coast Code” (the formal legal system) and “West Coast Code” (the practical regulation implied by the architecture and “code” of applications on the Net). And when Washington plays on the road in San Francisco, the home team wins.

Along the way, he makes many interesting observations. Early in the book, he talks about the enhancement of the “Identity Layer” in protocols, to the point that the properties of a visitor could be ascertained without disclosing full identity (for example, is the visitor a minor), to the point that, contrary to popular belief (and some court opinions) different visitors could be kept from getting certain content illegal for them. Later, he discusses COPA (which I cover in more detail on my Internet filtering blog) and suggests that web publishers self-label with a simpler scheme than PICS (proposed by ICANN).

The free speech section is quite interesting. He equates legal pornography to “harmful to minors” – a notion that was challenged in COPA. But the most interesting part of his discussion on the free speech paradigm concerns its corollary – publication and distribution. He talks about the constitutionality of FCC regulation of broadcast, with the Spectrum issue, and indicates that today’s Net, amplified by wireless, makes the entire broadcast regulatory system (however well politically motivated) moot. He points out that America during the late colonial or Revolutionary City era had a cottage pamphleteering enterprise a bit like today’s Internet blogs in psychological terms.

He does give a lot of attention to the idea that the Web has made everyone a publisher, and he sees the collection of self-published materials (blogs, tweets, sites, videos, social networking profiles and wallpapers) as a good antidote to the “establishment” in that the sheer diversity of material offered by so many speakers offers a counterweight to concentration of power in the media. So far so good. In that sense, for example, any individual speaker would generally maintain some bias influenced by his or her own circumstances and even family responsibilities, chosen or not; the collection of speech offers the “objectivity.” (That collective “objectivity” is the result of Code, especially Google’s, he would say.) But what has happened that certain individuals and small interests have developed code infrastructures that in some sense give them puppetmeister control over the architecture of speech. It seems as if Mark Zuckerburg or Jimmy Wales have social power comparable to that of Barack Obama, in the “Coast” analogy (sorry, Wikipedia is actually housed in Florida, I think). I think my sites and blogs take this a step further, in which I have “encoded” the actual content, expressing opposing viewpoints, and projecting a certain objectivity or neutrality within my own content. Perhaps that steps over the line: I can draw attention to myself, and perhaps unwanted attention to others connected to me (because of the way others perceive social norms, however wrongfully), in a way that suggests I won’t accept an partisan or automatic filial responsibility for others (a claim that society could some day decide it cannot live with). Lessig doesn’t get quite that far (I thought he might) but does mention the “implicit content” problem, where the effect of content depends functionally on the speaker. He gives the example of an account of an alien landing in a supermarket tabloid as not being believed, but it a major network reported one, it would be believed (call it the Orson Welles problem). In fact, I got into trouble when substitute teaching just because a screenplay that I wrote as fiction was seen as “evidentiary” (sort of like the military’s “rebuttable presumption” in the “don’t ask don’ tell” policy), whereas LionsGate films had once made a commercial film for Lifetime with a similar story and message, and hardly anyone noticed. Do I have the same free speech rights as LionsGate? (by the way, a Canadian company). I guess not. Without obvious commercial gain, some people will see such asymmetric "universal speech" as enticement, or as throwing sand in "beasts' eyes", or (as I explained on my main blog May 30, 2009) as an "existential" threat to confidentality in most business dealings. "CODE", for all its origins in "chaos" and a neo-freedom, can bring back social hierarchy with a vengeance.

Lessig does cover the DMCA problem, tracing it back to the gradual evolution of copyright law, pretty well. He covers the paradox, that some artists depend on a free content model (a paradigm that the ISP and telecommunications industry might not be able to sustain or indulge forever – again, Code is law) while others must jealousy protect their “property” as their livelihood. Copyright law complications have grown as copying technology evolved (the Sony Betamax case) but digital copies, with their perfection, provided threats never imagined before, which Congress reacted to with overkill, prohibiting overriding or circumvention copying technology that might really only support Fair Use. Yet, a couple of provisions in late 1990s law (Section 230 and DMCA safe harbor) may, however criticized, be responsible (by limiting downstream liability) for allowing the self-publishing freedom on the Net that we count on today. We should not take it for granted forever. In the analysis of intellectual property, Lessig refers to the writings on the “nonrivalrous” nature of such property as expressed in the writings of founding father Thomas Jefferson.

Lessig gives a more condensed discussion of privacy than did GWU law professor Daniel Solove in his book on privacy, but Lessig explores the interesting notion that privacy rights could be construed as part of property rights (a libertarian notion).

I've come to see myself as a dweller on two or three planets, with Cyberspace as the newest of them, and my urban exile as the second. And they all must become reconciled.

Tuesday, August 11, 2009

Time: "Your Brain, A User's Guide": near your CVS checkout


Time Magazine is selling a special large, glossy well-illustrated paperback, “Your Brain: A User’s Guide”, edited by Jeffrey Kluger.

The book examines a number of hot topics, including the nature of consciousness itself (the Easy Problem and Hard Problem: why does green look green?) I remember a cohort who said that his job was to teach “the history of consciousness”.

The book examines the male v female brain, and the development of the teen brain, which actually starts getting smaller with “pruning”, a process that explains prodigy gifts in areas like music and art. The brain is mature at 25, and slowly declines, although in most people the effects are not noted until the 60s. There is a section “Forgetting is the new normal.” The odds of Alzheimer’s Disease increase rapidly after about 65, but the book is somewhat light on its explanation of it. It does have a memory test (with distraction, similar to that given by neurologists) and explains when memory loss is of real concern.

There are sections that examine the physiological bases of morality, and even faith (and remote prayer).

Wednesday, August 05, 2009

Vampire fiction similarity leads to legal complaint against "Twilight" author: seems silly, to me at least


Jordan Scott, author of “The Nocture” (I don't think that the title refers to Chopin or John Field, but I don't know) has sent a complaint to Stephenie Meyer, author of “Twilight”, about the vampire romance novel “Breaking Dawn”, published by the Hachette Group. Scott, through his attorney, claims substantial plot and character points, enough to constitute copyright infringement.

The Reuters story appears now on MSNBC here (Today show).

“Breaking Dawn” is easily located now on Amazon by title, in several versions. I could not readily find the Scott novel on Amazon this morning.

Meyer and her publishers say she was not aware of the other novel.

There was a somewhat similar suit in Britain against Dan Brown, over “The Da Vinci Code”, which was ultimately unsuccessful. Some people say that a copyright claim of this nature is more difficult to sustain in the U.S. than Britain.

Authors of “genre fiction”, which publishers tend to like and which tends to make money, may tend to run into this problem. Authors of high personalized or eclectic fiction probably would not, as what they “invent” probably really has never been seen before. However “eclectic” fiction writers need to be wary of implying that real people actually committed wrongful acts (or have a propensity to commit wrongful acts) depicted in their stories (as in the California Bindrim v Miller case in 1979).

This case will be interesting to watch, although right now it sounds off the wall, to me at least.

As far as my own fiction, I have a scenario (for a novel with working title “Brothers” – a kind of tag team, not too much like (copyright!) Dean and Sam in Supernatural but likeable enough) in which a possibly extraterrestrial virus becomes a vehicle for taking over people’s identities and contracting souls into some kind of new order (call it horror if you life). Here is my take on it now (and it is fiction!):

“The story must, of course, map to the “threat” – the epidemic, and its connection to the Angels. The virus seems to be an “andromeda strain” and has occasionally caused diabetes-like illnesses in men. It becomes recognized as a bizarre retroviral disease. The viral proteins can accommodate certain radioactive atoms (astatine) that produce micro black holes that allow the information imprints of other personalities to be imported. A few infected individuals take on the identities of selected from entities called the “144000”. (They then “own” the older personalities; weaker people like “Bill” would want to “trade places.”) Persons must be “infected” to be invited to Titan to see the Staging. Some of the “Infected” can become Angels and become immortal. These persons cannot have children (except in the context of “eternal marriage”). Others who are invited, if they are not Angels, must have children. Angels must achieve a certain level of aesthetic or existential righteousness and rise above sadistic or masochistic “defenses.” Along these lines, the “Good” characters (Randy, Sal, Toby, Matt) achieve differentiated results. Femeri was an angel who fell, and Frankie fell without ever making it at all, and they must both meet a clear demise. Ali and Bill are somewhat intermediate, and are both to be in some way redeemed. Bill takes on some new physical characteristics with only the slightest glimpse of a past life that explains his nagging guilt. Amos winds up as just a silly sissy, despite having tried to become a geek.”

I doubt that this resembles any other novel or anything in the Twilight series. Maybe I should keep it a secret before agenting it. But really, nobody else could come up with this, not even close. It’s not “genre” enough. (And no, it doesn't resemble Paramount's "The 4400" which I do admire.)

A few unusual quotes or quirky ideas from my books have wound up in a couple of television series. I think writers did find them online (as I eventually published the books online) and used them. I didn't do anything, as I thought any claim would be frivolous. And, furthermore, I want Tinseltown to do legitimate business with me soon, so it wouldn't make sense to make a fuss.

By the way, comments that people put on message or discussion boards for shows (like on CWTV) do become the property of the stations. So never give away your own plots or stories on movie studio message boards.

Tuesday, August 04, 2009

Dell, MSN produce slide show of bunkers from Princeton doomsday book


Dell, MSN and Good Magazine have been treating visitors today to a slide show, or “last picture show”, “waiting for the end of the world”. The link is here.

Some of the pictures come from the Charlie Hull shelter in Montana. The attitude toward “Dr. Strangelove” ranges from moralistic penance to a sense that one lives in a new underground heaven where one is king, as long as one lives by “family values”. But I don’t know what future one’s progeny would have if forced to rebuild society underground.
Other shelters, such as in Conroe Texas, and in Utah (Mormon) are shown.

In August 1997, I took the tour of the Greenbrier facility at White Sulphur Springs, W Va, where there were dormitories and session halls set up for the House and Senate.
I don’t think these shelters envision a global Internet or electronic communications. It would be “back to basics”. And food can run out eventually.

The material comes from “Waiting for the End of the World” by Richard Ross, from Princeton Architecural Press, 2004. Curiously, I don’t find this book on Amazon.

I have an old anthology-like or coffee table book by Bruce D. Clayton, Ph. D., "Life After Doomsday: A Survivalist Guide to Nuclear War and Other Major Disasters" Boulder: Paladin Press, 1980. ISBN 0873641752. I remember buying it during the Iran hostage crisis. The book is motivated by the Cold War; it tells more aggressively-minded people how to set up and defend "survivalist" communities after cataclysms, reminding one of today's Sci-Fi series "Jericho." The book is dedicated to the survivors of (Discovery Cahnnel's) Pompeii!

Attribution link for DOE public domain picture of a nuclear explosion from Wikipedia