by Dana Blankenhorn
Volume III, No. LI
For the Week of December 20, 1999

This Week's Clue: First Thing We Do...

This Week's Clue: First Thing We Do...

SSP (Shameless Self-Promotion)

Phase Two

Look Where Hindery Landed

Earth to Mouse

Clued-in, Clueless

If you've brushed up your Shakespeare you know the rest of the quote. It's from Henry IV, Part II. The first thing we do, let's kill all the lawyers.  

Legal bullying is the route to trouble in a democratic system. If lawyers use the court enough to get what they want, the people will balance the scales through the use of government. Maybe, with the self-righteous anti-government paranoia that marks "Internet libertarianism" you think that is too much to expect. But just because a growing anger hasn't crystallized yet into a cause doesn't mean it's not there. It's just waiting for a spark to set it ablaze, and the fire could consume much of what the Internet economy has built. 

In looking over the stories for this week I've come across a host of examples where bullying lawyers, pushed by greedy businesspeople, are creating ill will. Mainly these cases involve the abuse of copyright and trademark law, laws that (with enough public pressure) could be quickly changed. Others involve abuse of the libel law, aiming to keep critics from getting any hearing, even on the other side of a national border. 

Let's start with the music industry, shall we? Napster is a musical search engine attached to an MP3 player and an online community. It's a mix of RealAudio, Yahoo and TalkCity. With Napster you can find any music file quickly, play it on your PC, and talk about it online with other enthusiasts. The trouble is, some of those files might be pirated. So the Recording Industry Association of America has gone to court to prevent Napster's distribution . Forget for a minute that Napster is the perfect tool for enforcing copyright - copyright holders can download it, save searches for the files they own, and go after anyone who posts one immediately. No, the morons who plan to make it impossible for you to make tapes off next year's CDs want a court to stop the Net. 

Let's now meet a suit that, on the surface, has a sound basis. The Aladdin Casino in Las Vegas has sued Angelo Giordano to keep him from using the domain name www.aladdingaming.com. Giordano, whose company is based in the Bahamas, uses that URL to link to Worldbet.net , an offshore online casino. The Las Vegas operator owns Aladdincasino.com, so put aside the fact they're suing someone in another country. They're going after a variation of the trademark. Does this mean they can enjoin related terms in, say, the Bahamian domain? That domain happens to be .bs, which is my final comment on this suit.

Filing a suit, of course, is one thing. Having a judge grant your wishes is quite another. So let's start the recall campaign now against California Superior Court Judge John Shook, who killed the five-year old etoy.com domain, run by a European artists' collective since 1994, because eToys went out the next year and got a trademark on a related name. It's one thing to protect a trademark in the virtual world - it's quite another thing to use courts against distant relations whose names might be confused with yours (if the shopper is drunk). There are just too many of them, and this is injustice of the worst sort.

Now that music lovers, Bahamians, and European artists have reason to hate our court system (and its attempts to assert extraterritorial jurisdiction) let's revisit the libel laws. Corporations have used libel claims for years to destroy Internet anonymity, filing suit to gain the names of their critics and then sending the legal beagles on their trail. Now the press is in the crosshairs for running a story (evidently wrong) from Cyveillance.com , a consumer watchdog that accused Off the Runway of Greenwich, Connecticut with selling fake Gucci. Nicole Tzougrakis wants Ziff-Davis, CMP Media, and other journalists to pay her for running the story, claiming the Internet is ruining her Internet business. Sorry, Nicole, you can't get the benefits without paying the price. (Oh and would you be a dear and change your home page? It looks like you're selling kiddie porn.) 

All this is prelude, of course, to the mother of all legal boners, which I apparently broke in my ClickZ column . (I say I broke it because, since my story came out, everyone else has suddenly jumped on it.) U.S. District Court Judge Tena Campbell has not only become the first U.S. jurist to rule against linking, but has extended the ruling to even mentioning foreign sites she doesn't want you to see.

At issue in this case is the Mormon Church Handbook of Instruction, given to church leaders so they may handle their ministerial duties as the church wants them to. Apparently the Mormons treat this as the Scientologists treat the fact they believe in space aliens. When some church critics called the Utah Lighthouse Ministry tried to spread the handbook online, the Mormons' corporate arm sued on copyright grounds. When the Lighthouse linked to pages in Australia that still had the files, those links were enjoined, as was any mention of the site where the links were located. (Since the injunction, the Australian site's copy has been taken down, as have those in China it sought to offer through links, so in some sense the case is moot.) 

There are key Clues here for everyone. We have a lot to learn about enforcement and governance, things we can only learn when we accept the fact that a single world with a single network requires a single set of basic rules to work. Second, those who enforce these laws have never heard of e-mail. Driving music lovers, corporate critics, or religious opponents underground, to e-mail, will only make them angrier and more virulent. (Do you really want our current difficulties with enforcing laws against child porn extended to copyright and libel?) In time, a spark will ignite causing this Internet Underground to rise up, and if the Corporate Web finds itself without friends when that happens, we'll all suffer for it.

Where might this spark come from? There are plenty of firebugs out there. Here's one -- Jay Fenello. Jay lost his attempt to become a domain registrar when ICANN refused to recognize him, and he's now on the warpath against the WTO . He represents a large, growing trend, the "have-nots" of the Internet Revolution. And these people, combined with those who have no stake or interest, represent a majority. Majorities, if you haven't noticed, have the power to change governments, and governments can change rules. 

SSP (Shameless Self-Promotion)

I have begun my adventure at Voxcap.Com, discussing how next year's elections might impact the future of the Internet. I had two features in a recent special section of the Chicago Tribune  as well.

I write daily for ClickZ, and appear on TechEdge Radio. I write monthly columns for  NetMarketing, Boardwatch, and  Intellectual Capital. Once every other month I'm in CLEC Magazine. The lead item here is also the Monday e-commerce column of Andover.News. You can still buy my book . Subscription instructions are at the bottom of each issue.

Remember that it's still journalism that keeps the Clues coming. Give me a call at 404-373-7634. (Yes, I do some commercial writing.) Now back to the show...

Takes on The News

Privacy Solutions

The conservative take on regulation is that every social problem is actually a business opportunity. If the numbers can be made to work, the solution becomes obvious. (The liberal critique is that, for problems like health and education, the numbers can't work without injections of public money.)

So let's take a quick look at the business solutions to the privacy dilemma.

Enonymous , based in San Diego, offers a wallet, automated reviews of privacy policies and (most important for the founders) an e-commerce play in which "special offers" based on your profile will be sent to you in the background. (Don't let them take advantage of you, let me do it instead.)

Clickchoice , based in Atlanta, spins its pitch around filtering. The privacy problem is dealt with through a personal firewall program (as though everyone's trying to get into your computer, not taking data freely as the price of buying anything).

LostBoys, based in Holland, is a game development company that promises a solution, but has yet to deliver. Their Web site could use some work, too.

Privaseek, based in Colorado, offers Persona, basically an updated version of the old Firefly Passport. As an incentive, they're offering "free credit card insurance," but every savvy consumer knows that you're only liable for $50 anyway so we don't buy this industry rip-off. Is a free replacement for a rip-off a value?

Lumeria of Berkeley, headed by the ever-clueful Fred Davis, offers SuperProfile, aimed at letting you make a market with your privacy information, and runs Privacy Place , an online magazine that warns of all types of government attempts to crack anonymity.

There's one problem with all these solutions, and that is they don't address the problem. The problem isn't people collecting information. It's people trading information, what happens to your data after you turn it over (whether or not you're paid for it). And if you're paid for it, how else can people get that investment back without seeking markets for your data? This could be the example that shows the fallacy of cyber-libertarianism.

Look Where Hindery Landed

After listening to Leo Hindery address @d:tech, I felt certain he was headed for Motorola to head that company's General Instrument unit. He rhapsodized on how digital TV, based on new set-top boxes, is a much better model for mass interactivity than the Internet, which requires "expensive" PCs.

Well, I was wrong. He landed at Global Center, the Web hosting unit of Global Crossing. Global Crossing bought Frontier Communications (formerly Rochester Telephone) after getting involved in the US West takeover drama (Global Center was the prize), but Hindery's unit competes directly against AboveNet, Exodus, and (now) Intel and hundreds of others in the Web hosting wars.

The guess here is this is an interim appointment. Hindery is dressing up a boardroom for an IPO, and my guess is he'll make something in the 8 figures for his trouble. (Hindery never felt he got his due at TCI or AT&T - money does motivate him.) Once he has the fortune he thinks the world owes him, he may finally fulfill the promises of his @d:tech talk.

Earth to Mouse

Disney admitted recently it managed to lose $1.06 billion on its Go.Com operations in 1999 , but it has bigger problems than that. It's losing talent faster than the Florida Marlins did after they won the World Series, and those who are left confuse hubris with vision.

I talked to one such Mouse minion recently - I'll save the person embarrassment by mentioning neither their name nor sex. The idea is that broadband supports video, they control video content, video content can be linked to commerce, and thus they'll dominate the broadband era. It's true that video costs more to produce than text - I learned that when CNN came by recently to interview my kids - but because text is more flexible it retains its power in a broadband world. And the heart of any video production is a story. Stories are written, using words or (perhaps) storyboards.

Bureaucracies have an awesome talent for self-delusion, even business bureaucracies. Broadcast companies have convinced themselves that the coming of broadband means they can do what they've been doing, and that the Internet will come to them. Some of it will. But only some of it.

Clued-in, Clueless

Clued-in is Freedom Forum's Adam Clayton Powell III, who has become one of the best around at covering this beat, especially as it relates to the social and political aspects of it.

Clueless (I'm sorry to report) was the shared list of Cluetrain , which was sent to recipients unfiltered, undigested, and thus tasting moldy and useless.

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