A little bit of nerdery, inspired by the OpenID-friendly login system at SB Nation’s Baseball coverage:

If you want to set up an OpenID authentication using your Google account—and hey, who doesn’t—on a domain that you control, it’s easy as pie. Gina Trapani shows us how.

First, Google Profiles (and, it turns out, idproxy.net and ClaimID and a bunch of other OpenID providers) can work with your domain name, so all I have to do is add a few tags to your HTML to get things set up. Second, you can specify multiple OpenID providers, so if idproxy.net was down or Google Profiles was down, you can have a provider fallback. Sweet. Now, in the tags of ginatrapani.org you will find the following:

<link rel="openid2.provider" href="https://www.google.com/accounts/o8/ud?source=profiles" ></link>
<link rel="openid2.local_id" href="http://www.google.com/profiles/ginatrapani" ></link>

That sets Google Profiles as the authorizing party for my OpenID, but my OpenID URL is ginatrapani.org. You can see my new OpenID in action right here; I signed into this very site with my new OpenID and posted a comment.

You will, of course, want to substitute your own Google profile for Gina’s. I’ve done so on the main page (view source). Also, I think it’s now sufficient to simply use this:

<link rel="openid2.provider" href="https://www.google.com/accounts/o8/id" ></link>

Try ‘em both and let me know how they work for you.

Yesterday afternoon, sometime between 3 and 4pm, I tried to pull up the Florida Bar website, which was working fine – albeit with its usual lack of speed – earlier in the day.

What came up was a typical domain-squatter page that you’ve seen on any domain that was once used but let go by the owner.

So, what happened? Did someone forget to pay for the registration over there? Did they get hacked? Or did they abandon the site?

Web site management, ostrich-style

I called over to the Bar yesterday to alert them to the problem. The pleasant lady who answered the phone sweetly assured me that there was no problem with the web site. I told her that I couldn’t access it and if anyone else reported it, she might want to have someone check on it.

So today, almost 20 hours later, still no progress. Just another example of how the Florida Bar doesn’t understand technology .

UPDATE:

Others have noticed this too. Here are some of today’s search term hits:

• florida bar website
• florida bar website down
• florida bar website gets hacked
• florida bar hacked
• florida bar website hacked
• florida bar web site hack
• florida bar website problems

UPDATE 2:

The Florida Bar website – which I can now see – has the following message posted:

Access to our Web site is currently being affected by an incorrect DNS record on the Internet. The issue has been resolved, however, it is possible that access problems may continue for up to 24 hours. We apologize for any inconvenience.

(Thanks, Tiff.)

Note: this is not legal advice. This is my opinion, nothing more. If you want legal advice, hire a lawyer.

How to piss people off with a legal argument

There are no atheists in a foxhole, it’s been said, and there are apparently no agnostics when it comes to the potential application of the GNU General Public License (GPL) to WordPress themes. My last post, which analyzes the matter from the perspective of copyright law (as it must) generated quite a bit of debate even though it’s been raging for far longer than I’ve been following it. I concluded that, under our current copyright laws, WordPress themes are not “derivative works” and therefore are NOT automatically covered by the GPL (unless, of course, the theme author deliberately chooses to release under the GPL).

And that pissed some people off, and pleased a few others. One even accused me of wanting the powers-that-be to “bless” my decision to go with a premium WordPress theme. (Um, no.) Others encouraged the sides to settle the matter in court. Some simply waved their hands and said, “There is no debate,” as if they weren’t debating by leaving their comment.

Whatever.

Your opinions don’t matter

None of your opinions matter… and neither does mine. Derivative work, independent creation, something in between… it doesn’t matter in the end. Why not?

Because whether the GPL applies to WordPress themes or not… whether they are derivative works or not… whether they are part of a “combined program” (as the Software Freedom Law Center advocates) or not, the WordPress GPL can’t stop you from developing, distributing, making money from, and asserting copyright in, WordPress themes.

Because the Fair Use Doctrine protects you when you do.

How can Fair Use apply to premium WordPress themes?

First, it’s important to remember that the GPL is a copyright license: it allows people other than the author the right to copy, distribute, and modify a work – in this case, a piece of software – that otherwise would be restricted to the author only under copyright law.

That means that anyone who already has the right to do those things under copyright law need not worry about the restrictions of the license. The terms of the license only apply to uses which copyright law reserves to the author. And if a use qualifies as “fair use“, then copyright law expressly allows it without a license.

How does use of a work qualify as “fair use”? The law sets out four factors to consider:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107.

Each factor weighs separately in the analysis.

Purpose of the use

As to the first factor, copying for a commercial purpose “weighs against a finding of fair use.” Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1523 – (9th Cir. 1992), citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985). However, “the presumption of unfairness that arises in such cases can be rebutted by the characteristics of a particular commercial use.” Sega, at 1523. Such factors include whether or not the use complies with the “primary objective of copyright law [which] is not to reward the labor of authors but ‘[t]o promote the Progress of Science and useful Arts.’” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991).

In other words, commercial use is presumed to be unfair, but that presumption may vanish if the use also promotes advancement of science and art. Publication of premium WordPress themes, by definition, is commercial, but in many cases, arguably promotes that advancement of science and art when they help produce web pages that are more artistic or which function, in some way, better. Almost all WordPress themes are created with this intent, and would be difficult to sell as premium themes if they miss the mark.

Tha analysis finds support in the Sega case:

We further note that we are free to consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially. Public benefit need not be direct or tangible, but may arise because the challenged use serves a public interest…. In the case before us, Accolade’s identification of the functional requirements for Genesis compatibility has led to an increase in the number of independently designed video game programs offered for use with the Genesis console. It is precisely this growth in creative expression, based on the dissemination of other creative works and the unprotected ideas contained in those works, that the Copyright Act was intended to promote.

Sega at 1523. (citations omitted) Like in the Sega case, WordPress themes promote a “growth in creative expression” by making WordPress easier to use or more aesthetically pleasing. I think a court would find this factor in favor of fair use in the case of WordPress themes. But just for sake of argument, let’s tip the balance on factor one slightly against fair use for now.

Nature of the work

For the second factor, the “nature of the copyrighted work,” we look again to the Sega case, which states:

The second statutory factor, the nature of the copyrighted work, reflects the fact that not all copyrighted works are entitled to the same level of protection. The protection established by the Copyright Act for original works of authorship does not extend to the ideas underlying a work or to the functional or factual aspects of the work.

Sega at 1524. (citations omitted) And, “To the extent that a work is functional or factual, it may be copied.” Because computer programs are largely functional, “many aspects” of computer programs are not even protected by copyright. Sega at 1525.

To be fair, the “nature of the work” analysis can be much more complicated than I can discuss here, but generally speaking, more protection will be provided towards fictional, fantasy, and entertainment works, with less protection being given towards largely functional works, and none at all to some types of works that are purely functional. As a computer program, WordPress is highly functional in nature, and therefore enjoys less protection than pure works of imagination. Based on that sliding scale, it is fair to tilt the second factor in favor of fair use where the nature of the work is a content-management system for web pages, such as WordPress.

Amount and substance of the copying

The third factor is the “amount and substantiality of the portion used in relation to the copyrighted work.” In other words, how much of the protected work was used, and how important to the work was that portion? Both the quantity and the quality of the copies portion matter. Salinger v. Random House, Inc., 811 F. 2d 90 (2d Cir. 1987)(where copy was “essentially the heart” of a copyrighted work, factor three weighed against fair use).

In the case of WordPress themes, this factor weighs heavily in favor of a finding of fair use. No theme that I’ve ever seen incorporates any actual code from WordPress; instead, they rely on function calls to the main program, asking it to send data back to the program that comprises the theme. In other words, the only portion of WordPress “copied” are the names of the functions themselves. As a percentage of the total amount of code in WordPress itself, this is simply a tiny amount. Furthermore, the names of the functions are, in themselves, hardly the core part of the expression from a qualitative nature. Both from a quantity perspective and a quality perspective, there is almost no significant copying of any protected WordPress code. Factor three, then, weighs in favor of fair use.

Effect on the potential market

The fourth factor, though, is the real clincher that leads me to believe the distribution of premium WordPress themes is fair use of any protected WordPress works. The “market effect” test has been deemed by our Supreme Court to be “undoubtedly the single most important element of fair use.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556-57, 105 S.Ct. 2218, 2233-34 (1985). The “market effect” test determines whether the alleged copyright infringement would somehow depress or diminish the ability of the author of the protected work to market that protected work.

In this case, the answer is a head-slapping “Of course not!” It is axiomatic that a WordPress theme cannot function unless there is a copy of WordPress running to support it; in fact, this is one of the arguments that GPL proponents make to support their case that the themes are derivative works. The “copying” by theme distributors can never displace a single copy of WordPress, so there is no negative effect on any potential market; and in fact, by enhancing the aesthetic and functional value of WordPress, themes promote more widespread use of the underlying software. Developers of WordPress themes increase the market for WordPress, not depress it. Increasing WordPress market share is in the theme developers’ best interest, for more WordPress users means more potential customers for premium themes.

Because the impact of premium themes on WordPress market share is at worst neutral, and in all likelihood premium themes substantially bolster the market share of WordPress with respect to its competitors, the fourth factor weighs heavily in favor of a finding of fair use. As the “most important element” of fair use, this finding cannot be understated.

What it all means: Blow it out your GPL

Of the four factors of fair use, two weigh heavily for fair use, one slightly in favor, and the other we allowed to tilt slightly against even though it could easily go in favor of fair use. To be sure, changing the underlying facts could change the outcome of any individual factor, but based on the facts as I understand them, development and distribution of WordPress themes, to the extent they engage in any “copying” or derivation from WordPress code, are resoundingly fair use of that code. And if they are fair use, then federal copyright law expressly allows them to be made, copied, and distributed with no regard whatsoever to the GPL or any other license that may apply.

So all the hemming and hawing about whether themes area derivative work, or “should be” a derivative work, is completely irrelevant. Because the GPL need not apply in either case.

Note:

This is not legal advice. This is my opinion, nothing more. If you want legal advice, hire a lawyer.

Why aren’t WordPress themes automatically covered by the GPL?

There’s been a firestorm brewing in the relatively small world of WordPress premium theme designers, after WordPress founder Matt Mullenweg broadly asserted that themes built to run on the WordPress platform – and by implication, plugins and anything else that hooks into the WordPress system – are covered by the GPL.

This is important, because if Matt is correct, then anyone who gets a copy of a premium theme then has the right to freely distribute it or modify it virtually without restriction (expect, of course, those restrictions found in the GPL itself). Understandably, even though some voluntarily release their themes under the GPL, many premium theme designers object to having their code distributed for free.

Matt, who is an outspoken proponent of open-source software, has explained that designers can still make money off GPL code by providing support and other valuable resources to users of that code. And he’s right – that model exists, and has been shown to work for some.

Are premium theme designers “evil”?

But he also goes so far as to call non-GPL premium WordPress themes “evil” – naming Chris Pearson’s Thesis as one such example. Now, I own a Thesis developer’s license and run several sites on the theme. I was happy to pay for it and would do so again. I also know Matt and have considered him a friend for several years now. I commend him for his support of open software and for the impact he’s had on the weblog community.

So it’s tough to say this: Matt, you’re wrong. Not only are these developers not “evil,” they provide a definite benefit to the community. And perhaps more important, the WordPress GPL does not, in most cases, require them to release their own themes or plugins under the GPL.

The argument for an expansive GPL

Here’s the argument for applying the GPL to all WordPress themes:

The template is loaded via the include() function. Its contents are combined with the WordPress code in memory to be processed by PHP along with (and completely indistinguishable from) the rest of WordPress. The PHP code consists largely of calls to WordPress functions and sparse, minimal logic to control which WordPress functions are accessed and how many times they will be called. They are derivative of WordPress because every part of them is determined by the content of the WordPress functions they call. As works of authorship, they are designed only to be combined with WordPress into a larger work.

In other words, the code created by theme developers, because it works together with WordPress code (and in most cases, cannot function without it) is a “derivative work” of WordPress under copyright law and therefore falls within the scope of the GPL. (The GPL, as a copyright-based license, applies only to the original work and those works that derive from it.) At least, that’s the argument.

The counter-argument to an expansive GPL

But is it enough to say that a theme calls to WordPress functions or that it is somehow “combined with WordPress code in memory”? Does that make it a derivative, and therefore covered, work under the law and the GPL?

There are plenty of reasons to disagree with the expansive GPL view expressed above. First and foremost, it’s just not enough to say that themes running on top of, and using function calls from, a piece of software are “derivative” of that software. If that were the case, then any software application would be a derivative work of the operating system it runs on – such as Windows, Linux, or OS X – which in turn would be a derivative work of the software hard-coded into the chips running the computer. For that is the way all software works, down to the bare iron – it sits on top of, and makes function calls to, the software layer beneath it, until to get down to the silicon pathways in the chip itself. No software could run without those lower layers, and nothing is truly independent of them. But “dependent” and “derivative” are not the same thing.

Instead, copyright law takes a very pragmatic approach to determine what constitutes a derivative work.

The alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.”

In the case of Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F. 2d 965 (9th Cir. 1992), a federal appellate court considered that very issue. Galoob manufactured a “cheater” cartridge that plugged into Nintendo games, between the game cartridge and the game unit itself, and allowed the player to change the game’s parameters – for example, players could give themselves unlimited lives using Galoob’s device. Nintendo sued Galoob, claiming that the devices violated Nintendo’s copyright in the games as a derivative work of the games.

The Galoob court rejected Nintendo’s argument. In order to be considered a derivative work, the alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.” Galoob at 969. Finding that Galoob’s device did neither, the court determined that there was no derivative work.

An important part of the court’s analysis was that “technology often advances by improvement rather than replacement.” Id. The court also noted that software often depends on other software to function:

Some time ago, for example, computer companies began marketing spell-checkers that operate within existing word processors by signalling the writer when a word is misspelled. These applications, as well as countless others, could not be produced and marketed if courts were to conclude that the word processor and spell-checker combination is a derivative work based on the word processor alone.

Id. Applying that theory to the Galoob device, the court concluded:

The Game Genie is useless by itself, it can only enhance, and cannot duplicate or recaste, [sic] a Nintendo game’s output. It does not contain or produce a Nintendo game’s output in some concrete or permanent form, nor does it supplant demand for Nintendo game cartridges. Such innovations rarely will constitute infringing derivative works under the Copyright Act.

Using that rationale, the question of whether WordPress themes are “derivative” of WordPress itself becomes more clear.

1. Does a theme, rather than simply calling a WP function, incorporate actual code from WordPress?
2. Does it somehow supplant the demand for the WordPress software itself?

If the answer to either of those questions is “yes,” then the work is probably derivative, and the GPL probably applies. If not, then even a theme or plugin that entirely dependens on WordPress to run at all, or simply improves WordPress in some way, would not be a derivative work and the GPL would not apply. For the vast majority of themes I’ve seen, the GPL would not apply because the theme is not, in my opinion, a derivative work. (In fact, if any one thing “incorporates” another, it’s most likely WordPress incorporating the theme, by use of the PHP include() call, rather than the other way around.)

Should the GPL apply to premium WordPress themes?

Matt’s own experience with WordPress is a very convincing argument that it is possible to change the world, or even just make a living, by writing, distributing, and supporting GPL-based software. There are many premium theme designers – promoted and catalogued by WordPress – who choose to apply to GPL to their own labors. But those who choose not to? Not evil – at least not for that reason.

It’s great to talk about open source software as “free” and speak of the GPL – as Matt does – as a “Bill of Rights” – but what Matt seeks to do would reduce freedom by expanding copyright restrictions to non-derivative – and therefore legally independent – works . At its core, the GPL is simply a fancy way of controlling other people’s work through the imposition of copyright restrictions. Those who seek to extend the GPL beyond the bounds allowed by copyright law, do not promote freedom but instead take freedom away.

Update: What WordPress itself says about derivative works and copyright law

I should have done this in the main article, but here’s what the GPL that came with your copy of WordPress says about the issue:

a “work based on the Program” means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.

(Emphasis added.) In other words:

1. Copyright law controls the definition of what constitutes a “derivative work” (and therefore, a covered work); and,
2. The GPL expressly invokes the standard embraced by the Galoob court, namely, that some part of the original work must be contained in another work in order for that work to be considered derivative.

We didn’t start the fire

How many people can say they were on the front lines of a revolution? Ten years ago, inspired by some pretty interesting people, I started a little blog. At that time, there were roughly three hundred webloggers in the world, and most of us knew each other. There were few enough that everyone knew when a new one started up.

Around that time, there were two camps of thought regarding weblogs: overly optimistic, and overly pessimistic. This quote sums both up nicely:

Weblogs are a “revolution.” They’re “journalism.” They’re “art.” They’re, again and again, the next New Thing. To which the only possible response can be: come on, people.

This is not to say that weblogs aren’t useful or fun. I read several every day, and have profited from the experience. I just love that Mahir guy.

But how can you not boggle at the level of self-delusion, of self-infatuation, it takes to declare that weblogs are going kill off traditional journalism? That the concept will be alive and well a decade from now? That weblog readership will increase a hundred-fold in that time? That they’re an art form?

Have weblogs “killed off” traditional journalism? Damned near. Is the concept alive and well ten years later? Hellooooo! Has readership increased a hundredfold? Closer to a millionfold. An art form? Well, you’ve got me there.

But clearly, we were on to something. And everyone else gradually caught on.

A new world order?

From 25-score bloggers to perhaps billions. Blogging has changed, and the world’s information flow will never be the same. But so, too, has the world changed over the last ten years. It’s fun to see some of the radical transformations:

Then: America’s first black president
Now: America’s first black president

Then: Waiting for the world to collapse
Now: Waiting for the world to collapse

Then: Evan Williams poised to take over the internet
Now: Evan Williams poised to take over the internet

Then: Toy Story 2 in theaters
Now: Toy Story 2 in theaters

Maybe not.

Well, maybe some things never change. But I feel pretty good about this: ten years from now, we’ll look back at 2009 and reflect on some of the things that did change, in ways we cannot even imagine today. And some of them? We might even call them “art.”

I knew that WordPress itself was covered by the GPL. What I didn’t know was that themes, even commercial themes, built to run on WordPress, also fall under the GPL, according to some GPL experts.

In this vid, Matt Mullenweg talks about the benefits of the GPL at some length, even going so far as to call those commercial theme vendors who don’t release their code under the GPL as “evil.” (Looking for some commercial-grade but GPL-released themes? Find some here.)

Now, I’ve been using a commerical, non-GPL theme for this and some of the other blogs I maintain – the very slick Thesis theme – but I hardly consider it “evil” that Pearson, et al. maintain a non-GPL license regime. They might arguably be in violation of the WordPress GPL, but there’s nothing inherently “evil” about their product or what they’ve chosen to do with it. (Notably, Pearson offers a number of free themes for download at his site, including a couple which helped cement his reputation as a talented WP theme designer.)

When Facebook let users pick nicknames for human-friendly URL’s, Wired Magazine’s John Abell didn’t care what name he got. Why? He’s already a got a domain name that he controls… along with unlimited subdomains that he can point to any other location on the internet.

At the end of the day, you won’t know where to find someone on facebook even with your fancy name until and unless they tell you. In a world where you have sub-domains on an omnipresent brand, people can figure it out…. I will try for the Facebook name of my choice, of course — why not? I’ve done the same for a bunch of sites, half of whom I have forgotten and never use. But, if I don’t get it I don’t really care. No matter what site you might want to link up, you’ll always know how to find me: *.johnabell.com

So if you missed out on the great Facebook landrush, skip it and go buy your name with a .com at the end.

It’s amazing what you can learn in the doctor’s waiting room.

Nate was playing with the big toy – the one where you move all the beads back and forth across the wires – and I took a minute to check out a web design question I had, surfing the web on my phone.

I stumbled across this CSS tip for styling buttons… and, as it turns out, everything else.

I’ve been out of the loop on cutting-edge web design techniques, so I didn’t know you could now do rounded corners and drop shadows in CSS. And, as it turns out, you can use these techniques on more than just buttons.

You can style any element this way. Even block quotes. Or paragraphs. Heck, you could probably style a <span> this way.

And that’s pretty cool.

I’ve been a Dreamhost customer since 2000. In that time, I found a lot to like about the service. It’s been convenient to use, packed with all the features I could want and then some, and seemed fairly reliable.

But if you were to search Twitter today for the word “Dreamhost,” you’d have found an uprising. Hundreds, if not thousands, of DH customers lost all their incoming emails this morning due to an unspecified failure of the spam filter… because when you upgrade a spam filter for thousands of users, you definitely want to do that first thing on a Monday morning. (None of those businesses needed their email, anyway.) Support? Completely non-communicative.

Well, that wasn’t all. A Twitter search for Dreamhost this evening shows that, not only had they failed to resolve the email problem for many users, literally dozens of web servers and database servers collapsed under the strain of… well, no one seems exactly sure.

Dreamhost did not cover itself in glory this day. In fact, I can’t imagine doing more damage to one’s own business than Dreamhost did.

As for me, I expect that I’ll be moving to a new web host mighty soon. Feel free to leave me recommendations in the comments.

(Photo source: niña mala under a CC License… see also Baby Chucky)

Write for a blog long enough, it’s bound to happen. You see a link in your referrer logs, find something on Google, get an email from a reader… you follow the link, and there it is: your hard work, spread across someone else’s page, used as bait for ad revenue or something worse.

David Risley asks the question: How do you deal with web sites that steal your content?

Personally, I’ve dealt with it in two ways. First, I contact the offender directly and ask them to take the post down. This usually works, because anyone who’s copied my work knows what I do for a living. If I can’t contact the webmaster, I next contact the web host.

So far, problem solved, every time.

Anyone who works with the Federal courts will be familiar with PACER, the federal judiciary’s electronic public records system. The great thing about PACER is that any current (I’m not sure how many years are encompassed) court case is in the system, allowing the public to access any document filed in any federal court case. The not-so-great side of PACER is the eight cents per page fee charged for each record. Eight cents per page is pretty reasonable, compared to most comparable systems, but it can really add up when you consider the number of pages in a typical court document (my local court rules allow 25 pages for a brief, for example) and the number of documents in a given case. And we know the money’s adding up – apparently, the judiciary has noted a “significant accumulation of unobligated balances” (hows that for a euphemism for “obscene profits”?)

Once you pay the fee, though – or if you’re a lawyer on the case and get “one free look” – you can do anything you want with the document, because it’s considered public domain. That includes uploading it to public.resource.org, through their PACER recycling tool, so that anyone will be able to download the documents for free.

I’ve spent a few minutes looking through the site, and have even uploaded a few documents. Here’s what I’ve noticed right away:

1. They’re just getting started. Only a small percentage of recent cases are represented, with most cases having only one document available.
2. Unless you know exactly what you’re looking for, you’re not likely to find it. There’s no search function whatsoever, and Google doesn’t seem to get deep enough to index the documents themselves. But everything is organized by court and by case number, so if you have those two bits of information, you’ll know in seconds whether your documents are available.

I think this is a great idea, if a bit underdeveloped at this stage, and I wonder if it wouldn’t be possible for someone to produce a more complete archive using an ad-based revenue model instead of a nonprofit model. But in the meantime, if I need something from PACER, I’m pretty much resigned to paying for it.

Via Stay Violation.

I’ve got three:

• Rage Against the Machine: RIAA Litigation Update

  The recording industry has ramped up its litigation campaign against peer-to-peer file sharing suspects, with cases now numbering in the high thousands. This session explores recent developments in the various cases nationwide and how someone caught in this driftnet litigation might defend themselves.

• Among Thieves: Preventing Online Copyright Infringement

  Digital photographers, web designers, and graphic artists are extremely vulnerable to online theft of their work. This session will explore copyright and trademark law protections for the freelancer and small-shop digital professional.

• Targeting Your Web Site: Accessibility Litigation Update

  How recent court decisions expose web site owners to liability for lack of accessibility, and how to protect yourself.

If you’re interested in any of these (or any other SxSW panels), check out the panel picker and vote.

In the great file-sharing war, it looks like the tide may be turning. Deborah Foster, the defendant in a peer-to-peer file-sharing case out of Oklahoma, not only got the records companies to dismiss their case against her, she got a court award of $68,000 for attorney’s fees – the cost of defending her lawsuit.

The Court emphatically stated that copyright defendants like Foster are entitled to have the cost of their defense paid for by the record companies, even when they refuse to throw their family members under the bus:

The plaintiffs argue that the defendant is not entitled to fees incurred after some point when she allegedly “could have avoided [fees] altogether but chose not to do so.” Throughout the course of this litigation the plaintiffs have alleged that had the defendant appropriately assisted their copyright infringement investigation and litigation, she could have avoided being sued. The Court has rejected this argument on numerous occasions and declines to entertain it yet again. The defendant was entitled to litigate the claims the plaintiffs chose to bring against her and, as the prevailing party on those claims, she is entitled to recover the reasonable attorney’s fees she incurred in so doing.

This decision will no doubt encourage more attorneys to accept defense cases even when the defendants themselves may not be able to pay the fees up front. Where the record companies have been using settlements to fund their ongoing litigation campaign – using defendants’ money against other defendants – now defendants have the prospect of using the huge financial resources of the record companies to level the playing field and fund the resistance to the copyright abuse.

Link via Recording Industry vs. The People.

UPDATE: Consumerist chimes in.

• Those looking for assistance in the central Florida area may want to get more information about my law firm.
• See our press release.

A few months ago, Google announced that its Calendar app would be accessible by PDA-based web browsers. It worked like a dream. And for someone like me, a lawyer on the go, it was a great tool.

Suddenly, sometime last week or so, it just stopped working. Instead of the nice neat rows of my daily schedule, I now get the unhelpful message that Google Calendar doesn’t support my browser…. “Yet.”

Yet? You supported it last week! What the heck is going on, Google?

UPDATE: They changed the url, apparently without telling anyone. Now it works.

Via Daringfireball, comes news of Rafe’s Law:

An Internet service cannot be considered truly successful until it has attracted spammers.

In other words, you’re not truly successful until you’ve been rendered virtually useless. Probably true.

For the time being I’m only stealing links from Jeff.

He helpfully points out some recent work showing that most so-called “valid XHTML” really is no such thing.

These sources have more on why:

• Surfin’ Safari
• Anne Van Kesteren
• Mark Pilgrim
• Ian Hickson

One big reason: there’s no good way to serve XHTML to all browsers with a valid MIME type. And that apparently matters.

(If this post means absolutely nothing to you, then congratulations, it means you have a life and don’t have to worry about this kind of stuff. Say hi to the world for me.)

I didn’t take part in the CSS Reboot but I was inspired by it.

A couple of weeks of fumbling, and I’m still at nothing. So I’ve decided to start over with a new theme as a base – complete with trendy chunky footer – and then give it a new skin.

I’m probably going to draw the visual elements mainly from our recent bedroom makeover (especially the colors).

At this rate, it’ll take me another couple of months. Bear with me.

(And oh, yes, I’m well aware that the white-on-black color scheme is horrible. Again, bear with me.)

Dear Google,

Sitting here in front of my laptop with browser windows open all over the place and hot-key access to all your features, I am completely and utterly smitten. No other search engine does for me what you do, from the quality of your results to the modifiers that let me customize my search in just about any way I can imagine. Nothing else is in your league. Google, when I embrace you through my laptop, I swoon.

So, why, Google, must you frustrate me so when I’m out and about? My Treo 650, while no longer state of the art, is a really fantastic hunk of plastic and metal and electromagnetic spectrum. While waiting in line at the store or just over lunch, I have the close to the full power of the Internet at my disposal. At least I did.

Then you changed.

Google, you stopped serving my Treo the same pages you offered me at home. Instead of full search results, I got abbreviated “mobile” results. No more “cache” links, no more “related” links, no more “view as HTML” option for PDF’s and whatnot. Just a stripped down link list. And then, as if that wasn’t bad enough, you started changing the way you gave me access to the results I wanted. No longer could I just click through to a web page you found for me. Instead, you started serving up pages that had been “modified” for my mobile. I think you were trying to be helpful, but most of the time your modified pages were much less useful than the full pages themselves. They don’t always load, they break my back button, they interfere with cookies, and they generally show me that you’re getting in the way most of the time for what I need to do.

Today was the prime example of that. Over lunch, I wanted to look up the plain text of a state law. Ordinarily, this takes me two minutes tops, especially in a case like this one, where I knew the citation. But over lunch today, Google, I couldn’t do it at all. Every promising result link turned into a dead end of server errors. Once I got home, I found the cite I needed in less than 120 seconds.

Search isn’t all. You’ve also changed the way you tell me about the news. Frames! You use frames! With nav buttons on them that’s don’t even work! And break my back button! Are you trying to be helpful? Because if you are, this isn’t the way.

The road to hell, as they say, is paved with good intentions. So I wanted to give you a chance. I wanted to tell you to turn off the special “mobile” pages and the frames and the strangely formatted results and just give me the pages. Just let me click through. Set me free.

You won’t listen to me. There is no way to set a preference or click an alternate link. When I use my phone to talk to you, Google, you make me surf in “mobile” mode, and I don’t want to.

I’m starting to think you want me to start looking for another search engine. Google, please, before it’s too late… listen to me. Give me what I want and what I need – not what you think I want and need.

I just got e-mail pitching various medications from a dude named “Interstellar D. Sawdust.” Isn’t that what became of Alderaan?

Michael S. Cox is a spammer.

You can tag it too: Michael S. Cox

UPDATE: But wait, there’s more! Now Cox is threatening to sue Dori and Tom despite the fact that, to all appearances, he’s got no case.

The other day I suggested to Dineen that she have a professional web site apart from whatever her firm puts up. Smacking my forehead, I realized that I should do that as well.

So I did.

After the site was largely finished, I did a quick check on MSIE 5 on Dineen’s PC. Busted. DIV elements all over the place, seemingly at random.

Running the site through the CSS validator caught a couple of typos which fixed most of the problem. The header, though, was still a mess.

The header is a single DIV element, the whole width of the page. Inside the DIV are two child elements: a headline element for my name, and a DIV containing the photo. Both are floated left with appropriate margins.

I tried the box model hack for IE 5 and that helped a bit, but the headline was still out of place. Instead of resting nicely to the left of the image, it hung to the left and below the image, knocking the bottom of the box down in order to fit the additional line height.

Problem solved: in the source document, the DIV containing the image precedes the headline element. They were not that way in the stylesheet. Floating elements in a different order than they appear in the markup apparently confuses IE 5 as to where they should go. Reordering the stylesheet so that the floats occur in the same order fixed the problem. I know some web designers advocate using different orders in the stylesheet (I’ve seen at least one advocating an alphabetical order) but the use of floats would seem to dictate this method if you care about them working properly.

(Note: Safari, Firefox, and IE 6 for PC seemed to work just fine regardless of order.)

Recall my post the other day about “ink by the barrel“?

That post was more prescient than my football picks. Tiff’s story got picked up by the Consumerist, Instapundit, and Doc Searls.

She’s gotten more eyeballs in three days than I’ve gotten total since I started blogging more than six years ago. And 90% of those eyeballs will never use the offending ISP as a web host – not because of the service suspension, but because of the post-suspension jackassery about trademark law and trying to get her pulled from her new web host.

And as one might expect, the owner of the ISP still doesn’t understand that it’s not about gay porn, it’s about trying to silence opposing viewpoints by abuse of legal process. That’s why he’s been vilified by most of his former target market. Because information wants to be free, but some people still don’t get it.

Let’s just say… it got brung.

There’s an old saying, Never pick a fight with someone who buys ink by the barrel. I don’t know the original author, but it sounds like Mark Twain to me.

Now imagine that the ink-buyers in question are a pack of howling-mad bloggers. Their ink is free, you see. They can just keep writing, and keep writing, and keep writing. And they’ll all link to each other. And their rage will spread. And sooner or later, anyone trying to find your name on the web will find the rantings of a howling-mad pack of bloggers.

Would you pick that fight? One guy apparently would. Now, maybe he started out partially in the right, even mostly in the right. But then he started hurling false accusations. And threatening frivolous lawsuits. And generally doing other things that make very little business sense. And the barbarians with racist and sexist slurs rushed in to his aid, strangely enough from his very same IP address… just minutes later.

The howling is just starting, and I think it’s going to get a lot louder before it gets quieter. You want to be the guy picking that fight?

Bring it.

The front page has a new look and a whole bunch more functionality. It used to be a menu and nothing more; now the menu is moved to the side to allow for all kinds of content. The page now features:

• The latest headlines from this weblog
• A short description of the page
• My recent posts to del.icio.us
• Selected photos from my flickr photostream.

And that new content goodness is wrapped in a fresh new coat of paint – crimson and cream, like an antique car or a kid’s bike. There’s also a brand-spanking-new logo treatment, inspired in part by this post at 37signals.

The logo looks best in Safari since it uses css-based text-shadowing, but users of other browsers will get the picture as well. Let me know if anything else breaks horribly.

I’m in what seems to be a tiny minority when I say that I use Kinja as my primary newsfeed reader. I’ve preferred it to other methods for a few reasons.

First, I like that it’s web-based. I read weblogs and news sources from at least three different systems: my laptop, my desk-bound monstrosity at work, and when I’m out and about, my Treo 650. For those of you playing along at home, that’s three different operating systems. Web-based means platform-neutral, portable, and sync-free.

Second, Kinja is manageable. Newsreader clients like NewsFire or NetNewsWire are slick and pretty, but launching either one means several minutes of massive bandwith and CPU power reallocation, as the newsreaders update hundreds of feeds, resulting in thousands of unread items. Kinja, by contrast, is always ready to go with a page-long summary of the latest feeds. And it works just like the web works – read, scroll, point, click, read. I never have to struggle to remember which function keys navigate among the various feeds and feed items.

Third, Kinja gives me just the right amount of information. Kinja gives me web-page sized helpings of newsfeeds, laid out right in front of me with headlines and just enough of the “fat” feed for me to see at a glance whether I want to read further. Very little clutter, very little to distract from the pure flow of the feeds.

Kinja’s been down for a few days for what I thought was simple maintenance. As it turns out, they were apparently scrubbing the whole thing down with Ajax. Now, next to the pure feeds on the left, the whole right section is filled with the “cards” of the weblogs providing the feeds. The cards are the primary input device for – you guessed it – tags, the magic ingredient for every web application since mid-2005, no matter how simple.

Got an image? Tag it. Blog post? Tag it. News feed? Tag it. Dog running loose without a collar? Tag it. Releasing a falcon into the wild? Tag it. Three-day-old pizza on your kitchen counter? Dude, throw that out already! But tag the box.

I suppose tags are here to stay until we invent a new classification paradigm, and they can surely be useful in many circumstances. But for Kinja to pop up, new, improved, and tag-enabled, feels a bit like trend-following to me. I’m not sure they make Kinja any more useful than it was before, and there’s definitely some drawback. What used to be uncluttered and pure now has a spray of cards and tags strewn about the page. Even worse, the tags have only been available for a day and already some cretin has spammed the database with a bunch of “poker” tags. Not sure how that helps the real poker sites, but spammers don’t need a reason to poop in the soup. That’s just what they do.

I’ll keep using Kinja, since it still seems simpler and less cluttered than other web-based options, but the friction preventing me from migrating elsewhere has suddenly become a lot less than it was.

When I code up a new web page, I frequently rely on the world’s largest repository of CSS reference materials – tha Intarweb. This evening I was Googling for techniques on using CSS to pin a footer at the bottom of a web page, I stumbled across the following article at, of all godforsaken places, Apple’s Developer site:

Another common problem with CSS is ensuring a proper page footer. On long pages that use more space than the window height, the footer should appear directly below the navigation and content blocks. That’s very easy to code. On short pages, though—those that span only part of the window height—the footer should nonetheless appear at the bottom of the viewport, and that’s a far trickier code challenge… Ensuring that the footer works properly on both long and short pages is a common cause of CSS headache.

Tables neatly solve these two problems. Correct horizontal alignment has been the most important advantage of tables ever since Mosaic. Giving the table a height: 100% and the cell containing the footer a vertical-align: bottom makes the footer reliable in all circumstances.

(Emphasis mine).

Oh, for the love of Netscape 4.x! This may have been true back when KISS was still touring but in the modern day, if the solution to your problem involves using a table for layout, you’ve just got more problems.

Last month, photographer Thomas Hawk thought he got a great deal on a camera through an online store. Turned out, the Brooklyn-based company was running a bait-and-switch scam. According to commenters, Hawk’s experience with Brooklyn-based bait and switch scams was not unique.

One enterprising soul decided to check out some of the online camera shops with addresses in the neighborhood. Over the course of his tour, which must have taken weeks, he found that many of these online retailers have less-than-savory brick and mortar locations:

Don Wiss took more than a hundred pictures of different retail outlets. While he was still on his journey, word began to spread.

A fellow getting out of his car saw me taking my camera out. After hearing my first name he knew exactly who I was! He didn’t want me to take the outside. It was just a plain ordinary warehouse.

Wiss got shots of the inside and the outside anyway.

If you’re ever considering buying a camera online, you might want to pop over to Wiss’s gallery and see if he’s got a listing for your store, so you have a better idea who you’re buying from. If it’s just a mail drop you might want to investigate further before risking a lot of cash.

Links to the Hawk story via boing boing and the Wiss gallery via Consumerist.

Compare and contrast:

• The proposed typography (see also here) for an emphatic and profane way of saying “HUH?” (also known as the universal interrogative particle)
• The logo of my wife’s former employer.

Discuss: Is this a branding fiasco in the making or potential subversive marketing serendpity?

Dineen found that an Amazon.com search for “christmas stocking” includes some results which might surprise Mrs. Claus.