Saturday, February 28, 2009

The beginning of the end for open access?

Community Colleges May Soon Start Turning Students Away

Argumentation and Violence

Another quote from Perelman and Olbrechts-Tyteca, 1971, which also reminds me of a lot of things contemporary:

"Any society prizing its own values is therefore bound to promote opportunities for epidictic speeches to be delivered at regular intervals: ceremonies commemorating past events of national concern, religion services, eulogies of the dead, and similar manifestations fostering a communion of minds. The more the leaders of the group seek to increase their hold over its members' thought, the more numerous will be the meetings of an educational character, and some will go as far as to use threats or compulsion to make recalcitrants expose themselves to speeches that will impregnate them with the values held by the community" (p. 55)

The authors also point out that argumentation can easily be viewed as a substitution for physical force, aiming at getting people to do something by compulsion. Viewed this way, the textual law itself is an argument, one replacing physical force, like public torture, as Foucault might point out.

Continuing on this line of argument, based on what I've previously said elsewhere, that if the law is a technology, and the law is an argument, it follows that argument is technology. This makes sense to me.

The Epidictic Genre: "After listening to the speaker, they merely applauded and went away"

Here is a quote I found from Perelman & Olbrechts-Tyteca (1971) that is so apropos to my life at the present moment, and the lives of many others for that matter; I do not want to explain more:

"A single orator, who often did not even appear in public, but merely circulated his written composition, made a speech, which no one opposed, on topics which were apparently uncontroversial and without practical consequences. Whether it be a funeral eulogy, the eulogy of a city for the benefit of its inhabitants, or a speech on some subject devoid of current interest, such as the praise of a virtue or of a god, the audience, according to the theoreticians, merely played the part of spectators.

After listening to the speaker, they merely applauded and went away" (p. 48)

Friday, February 27, 2009

The Obama Hope Poster Case

NPR has conducted a series of interviews with the interested parties. I include a link to the interview with law professor Greg Lastowka.

To clarify his discussion - the Campbell v. Acuff-Rose Music, Inc. (1994). 510 U.S. 569, 583-585 case never actually held 2 Live Crew's use was fair use, but instead suggested the use might be fair use, and sent it back down to the lower court for a determination. To quote: "Held: 2 Live Crew's commercial parody may be a fair use within the meaning of §107. Pp. 4-25. " Notice the word "may."

The four factors are not applied as willy nilly as might be suggested in the interview.

David Nimmer (2003), a leading intellectual property scholar, conducted a study on copyright cases decided between 1994 and 2002, and found 90% of the time, if three of the four factors are found in favor of fair use, fair use is affirmed. One cannot generalize his findings though, because he did not randomly select the 60 cases he examined, nor did he analyze all reported decisions. Overall, of the 60 cases he examined, 24 upheld fair use and 36 denied it (pp. 269-277). Nimmer also analyzed percentage correspondences between each of the four factors and a favorable determination with correspondences ranging from 42% correspondence to factor two, and 57% correspondence to factor four, in the context of overall favorable findings. He states across all four factors, there is a 51% correspondence to a favorable legal outcome.Nimmer, D. (2003). “Fairest of them all” and other fairy tales of fair use. Law & Contemp. Probs., 66, 263-287.

There's other copyright and non-copyright issues as well other than the "fair use" claim. (I have not read the case but according to NPR, the potential copyright infringer is the one who filed the case for some kind of declaratory relief - always problematic because whoever filed the case has the burden -- I always think of this as if you are going to start the problem, then you will have the burden of proving yourself correct).

If I were arguing against the AP, I’d assert that the Obama photograph is not original. Per copyright law, in order for an artifact to be copyright protected, it must be an “original work of authorship fixed in any tangible medium of expression.”

Also note that “fixed” means fixed with authorization.

Then there is right to publicity issues going against AP:

Then of course, I’d recommend the AP lawyers read chapter 7 of this book when it is published in 2 months.


Wednesday, February 25, 2009

Native American Public Telecommunications (NAPT) unveils new website

Earlier this year, Native American Public Telecommunications (NAPT) unveiled its new website

Berkman Center for Internet & Society Launches Herdict

Quoting from an email received from The Berkman Center:
Today, a special announcement from the Berkman Center for Internet & Society at Harvard University. We are pleased to announce the official launch of Herdict Web --

-- a tool that employs the distributed power of the Internet community to provide insight into what users around the world are experiencing in terms of web accessibility.

We invite everyone to explore and participate by reporting websites that they cannot access, testing sites that others have reported, or downloading the browser add-on for reporting sites on the fly.

Herdict is a portmanteau of ‘herd’ and ‘verdict.’ Using Herdict Web, anyone anywhere can report websites as accessible or inaccessible. Herdict Web aggregates reports in real time, permitting participants to see if inaccessibility is a shared problem, giving them a better sense of potential reasons for why a site is inaccessible. Trends can be viewed over time, by site and by country.

The project’s mascot -- a sheep -- demonstrates “the verdict of the herd” in a short video at (or

The brainchild of Professor Jonathan Zittrain (The Future of the Internet--And How to Stop It ), Herdict Web builds out from the OpenNet Initiative's research on global Internet filtering. The OpenNet Initiative tests Internet filtering through an academic methodology. Herdict Web takes a different approach, crowdsourcing reports to learn about and display a real-time picture of user experiences around the globe. For more information about the OpenNet Initiative and the book Access Denied: The Practice and Policy of Global Internet Filtering, visit

Bloggers can be nailed for views

NEW DELHI: A 19-year-old blogger's case could forever change the ground rules of blogging. Bloggers may no longer express their uninhibited views on everything under the sun, for the Supreme Court said they may face libel and even prosecution for the blog content.

For the full story, see The Time of India: