"Passport to the World Festival" in San Francisco

As one of the endorsers of the GotPassport.com campaign to promote international travel, I'll be at the Airtreks.com table at Lonely Planet's Passport to the World Festival featuring Michael Franti and friends, Friday night at Mezzanine in San Francisco. Good music, a good cause, and a chance to meet fellow travel entusiasts and get more information about how to travel around the world. Hope to see some of you there!

"International Perspectives on Privacy and Homeland Security"

Today the USA Department of Homeland Security (DHS) Data Privacy and Integrity Advisory Committee is meeting in Bellingham, WA.

Immediately preceding the presentation on Secure Flight by the USA Transportation Security Administration (TSA), the agenda includes a presentation on "International Perspective on Privacy and Homeland Security" from the office of the Privacy Commissioner of Canada .

That should be interesting, and I'm sorry I can't be there. On the one hand, the Canadian Privacy Commissioner's office has been strongly critical of a succession of Canadian government proposals, modelled on "Secure Flight" and other schemes introduced in the USA since 11 September 2001, to compromise Canadian airline passengers' privacy, and "share" their reservation data across the border with the DHS, in the name of homeland security (whether that of Canada or the USA remains unclear).

But Canadian law has been amended to create exemptions from standard Canadian privacy rules for certain travel data, and in August 2005 the government of Canada announced plans to move forward with a Canadian "no-fly list" on the (unpromising) USA model.

That plan was immediately denounced by Privacy Commissioner Jennifer Stoddart as, "a serious incursion into the rights of travelers in Canada, rights of privacy and rights of freedom of movement."

The latest official announcement is that Transport Canada would "consult with the Privacy Commissioner, airlines and other stakeholders". Today's presentation to the DHS Privacy Advisory Committee may give some clue as to how, or if, those consultations are proceeding.

Canadian privacy advocate Matthew Englander brought the Canadian "no-fly list" proposal to my attention, and has much more detail on his Web site.

Meanwhile, Bruce Schneier, who was a member of another DHS advisory body, the Secure Flight Working Group that submitted its report last week, has posted his comments on the working group, its report, and "Secure Flight".

Schneier says, "The TSA is not going to use commercial databases in its initial roll-out of Secure Flight."

I understand what Schneier and the TSA mean when they say this: they mean that the TSA won't use commercial databases other than the commercial databases of airline reservations (PNR's).

Without ever trying to issue an order excluding PNR's from the definition of "commercial data", and without making any attempt to justify such a definition (or to explain what reservation data is, if it isn't "commercial data"), the TSA and DHS have simply adopted such a definition by undeclared fiat.

But just because the government says green is red doesn't mean we should agree when they say "I see no green here" when they look at a lawn, or that we should adopt their usage and say, "No, this lawn isn't green." PNR's are commerical data stored in commerical databaes maintianed by airlines and computerized reservations systems (CRS's), also known as "Global Distribution Systems (GDS's). No matter what the TSA and DHS want to call them.

It's a testimony to the seductive power, and the danger, of the TSA/DHS sort of Doublespeak that it's made its way into the language of even such knowledgeable, critical, and generally plain-spoken analysts of TSA/DHS actions as Mr. Schneier.

[Addendum, 29 September 2005: Another member of the Secure Flight Working Group, Edward W. Felten -- whom I also respect as knowledgeable and generally plain-spoken, and who joined the Working Group not as a critic of "Secure Flight" but with an open mind -- has also posted his thoughts on the working group and its report. I hate to have to pick bones with people like Prof. Felten, and I agree with the criticisms he raises. But -- perhaps inadvertently or through oversimplification -- his description of how "Secure Flight" operates elides an additional important problem in its conception. Felten refers to programs that "vet air passengers against a no-fly list [and] against a watch list." But passnegers (i.e. people) aren't vetted. All that's actually vetted, or that would be under "Secure Flight", are names that appear in PNR's . The TSA and DHS have never made any attmept to obtain any data about the extent to which name information in reservations does or doesn't correspond to actual passengers' "real" names. If they don't, the system is worthless, even if it could succesfully "vet" the names in reservations.]

The Amazing Race 8 (Family Edition), Episode 1

New York, NY (USA) - Washington Crossing Historic Park, PA (USA) - Philadelphia, PA (USA) - Mount Joy, PA (USA) - Lancaster, PA (USA)

The first episode of the first season of The Amazing Race took the teams of travellers from New York City all the way across the Atlantic Ocean and the equator to South Africa and Zambia.

The first episode of the current season, The Amazing Race 8 , took the teams from New York City "all the way across New Jersey", as one of them exclaimed.

Clearly things will be a bit different in the "Family Edition" of "The Amazing Race".

There was a nod to the first season ( just released today on DVD ) in the form of a cameo appearance by viewer favorites Drew and Kevin as hot dog vendors handing out clues to the current cast of racers on 91st street in Manhattan.

But it's not yet clear how much else "The Amazing Race 8" will have in common with previous seasons.

That's not because it's the "Family Edition", with teams of four family members, many including children, rather than pairs of adults with a wider range of relationships but a narrower spread of ages. " Far more families with children than most people would imagine take a trip around the world.

No, the difference is that, if advance indications are correct, this season will stay much closer to home.

There's nothing wrong with exploring one's own country, or with following in the footsteps of Simon and Garfunkel ("counting the cars on the New Jersey Turnpike - they've all gone to look for America") rather than the footsteps of world travellers.

But it's a different trip, as I suspect we'll see in the coming weeks . "The ultimate family adventure", as host Phil Keoghan described this season of the race, is a trip around the world, not just a trip across the country.

As a Red Sox fan, my sentimental favorites start off, of course, as the Aiello family from Massachusetts, all four of whom burst into a spontaneous chant of Yankees suck! Yankees suck! at their first sight of the House That Ruth Built (the source of one of my own most treasured travel souvenirs ) as they drive through New York.

I have driven a small car (not a truck like the racers) in Manhattan. It's a longer story than I have room for here, involving having a thief run off with one of my bags in the Port Authority Bus Terminal, on the last leg of my first trip around the world, and having to return by car the next day to retrieve the contents, almost all of which were found abandoned in the trash. (The only thing I never got back was a souvenir from India. I suspect the thieves mistook the price tag in Rupees for its value in U.S. dollars.) But it's hard to imagine that it was a desire for "reality", rather than payments for the product placement, that prompted the TV producers to make the racers drive giant "sport utility vehicles" (what sport? and what utility?) in a place where they are so inappropriate and so inconvenient to maneuver and park. Or would have been, if the TV producers hadn't blocked off parking spaces for them in SoHo.

The more realistic task assigned the teams is a stop at an outdoor sports and travel gear store -- which shall remain nameless to avoid giving them the publicity they hoped to buy with their product placement, although I will say that it was not the REI consumer cooperative.

I'm an REI member, and I've often found myself at one of the REI stores the day before my departure on a big trip.

The racers had already chosen and packed their bags, and certain types of travel accessories, such as most electronic devices, as forbidden in the race. Some of the items on the shopping list they were given, such as large tents, were more appropriate for car camping than for travel by mass transportation.

Still, they picked up some useful items (if they didn't already have them), and it's a good opportunity to think about a shopping list. If race rules weren't an issue, and I hadn't already packed my bags, what might I have been looking to buy at the start of my trip? Here are some of the larger items -- other than luggage itself -- that might be near the top of my list:

• LED headlamps like the racers were required to get are one of the most useful recent innovations in travel gadgets, freeing your hands, putting the light in better position for almost any task, and lasting many times longer on a set of batteries than traditional incandescent flashlights. A few teams had them in early seasons of "The Amazing race", and by last season almost all the teams had them.

• The racers had to get sleeping bags to use in their tents in a city park in Philadelphia. They probably hadn't brought sleeping bags, and most travellers don't think of bringing them unless they plan to camp. But I sometimes bring an ultralight sleeping bag, even to the tropics, if I have room. Places that are extremely hot in the daytime can get surprisingly cold at night at high altitudes and/or in the desert. And a sleeping bag can come in handy on overly air-conditioned buses, trains, or hotel rooms; when there is no bedding or no clean bedding; or as a spare pillow.

• The most important travel accessory to buy at a store like this, but that wasn't on the racers' shopping list, was a water purifier. This model developed by the USA military for field use in Afghanistan is the one that should have been being distributed as widely as possible to those people along the Gulf Coast without access to potable public water supplies in the wake of Hurricane Katrina. So it might be -- indeed, should be -- in short supply elsewhere. And the racers generally stay in luxury hotels and resorts at the "pit stops", even when they're in the Third World. But anyone travelling to places where tap water isn't universally available and safe to drink should bring one of these with them.

• The racers set a terrible example by carrying their most important documents, the race clues, in the place they are most likely to be stolen (or would be if they weren't always accompanied by a television camera and sound crew to deter pickpockets and muggers): conspicuous brightly-labelled external waist pouches issued apparently, by the show's producers. Do yourself a favor and get some sort of money belt or document and passport holder that fits entirely and invisibly under your clothes. Never go into it in public, and carry a "dummy" wallet with a plausible amount of local currency and some low value, easily-replaced or expired cards and ID (a laminated library card, some frequent flyer cards, maybe your previous expired drivers license or other ID) to satisfy a thief or mugger. I've had my pocket picked and my dummy wallet stolen, and recently I had an especially brazen snatch-thief try to tear the zippered "security" pocket, with its contents, off my pants while I was walking down the street. (They failed, but could easily have succeeded.) I've never heard of someone having a money belt or similar document cache stolen from under their clothes, or being searched thoroughly enough to find it after handing over a plausible dummy wallet.

• While you are thinking about theft protection, get locks for every compartment of your luggage, both for when you check it or leave it in "left-luggage" storage, and for when it is on your back with the openings out of your sight and reach. I prefer small combination locks, so I don't have to worry about keys. Airlines in the USA try to discourage travellers from locking their bags, but locks on luggage are the norm in most of the world.

Miami Herald on frequent-flier miles

What to know: News, tips and values (Miami Herald Sunday travel section, 25 September 2005):

Like Delta, NWA is also promising to honor tickets and award points (in past bankruptcies , courts have protected them, recognizing that airlines in financial pain need customer loyalty more than ever).

So not to worry, at least in the near term....

Still, you may want to think about taking a trip sooner rather than later.

"People who have frequent-flier miles should use them up," said Edward Hasbrouck, author of Practical Nomad travel books.

"Hoarding them is never a good idea."

Some more good ideas :

Pay with a credit card, consider buying from a third party who will help you if things go wrong and consider travel insurance .

Update on traveller registration programs

Just as the deployment of the Secure Flight airline passenger surveillance and screening program continues to be described as a "test" to evade Congressional restrictions on its deployment on other than a test basis , so a scheme to treat as second-class travellers those airline passengers who don't "voluntarily" register themselves with a designated private company is moving forward as a "pilot program".

The latest "registered traveler" or "known traveler" scheme has been in operation since 19 July 2005 at Orlando International Airport (IATA code "MCO") under the Orwellianly benign brand name (since when did surveillance have a brand name anyway?) of Clear .

This program has been outsourced by the TSA to Verified Identity Pass, Inc. , the latest brainchild of Steven Brill. Brill is perhaps best known as the founder and CEO of the Court TV cable television channel. Since 11 September 2001, he has devoted himself to evangelism for "screening" of people, places, and things in the name of "security". (Shades of Howard Hughes' paranoia?)

"Today, Clear is available at the Orlando International Airport and will soon be a part of a nationwide network of key airports around the country. In the future, the Clear Card could also allow access to expedited security at other public places."

A Privacy Impact Assessment by the TSA and Department of Homeland Security (DHS) Privacy Officers was published 20 June 2005, and amended last week, two months after the fact, to more accurately (supposedly -- I don't have enough information to judge) describe how the program has been operating.

Pilot program participants "voluntarily" (in exchange for the possibility of shorter, quicker lines at the metal detectors and baggage-search counters, if they are approved by the TSA) have their fingerprints and iris scans recorded, "consent" to background and immigration status checks, and pay Brill's company US$80 a year to join his "not presumed to be quite as deserving of warrantless, suspicionless search and seizure as non-members" club.

The best things one can say about the Orlando program are (1) that it uses a chip that can only be read when the card is in contact with a reader, rather than a secretly and remotely readable RFID chip, and (2) that it is being operated more or less independently (apparently) form the airlines and their reservation data infrastructure. Both of those are major departures from the (also Orwellianly named) Simplifying Passenger Travel campaign by airlines, airports, and reservation systems to integrate so-called "security" and screening measures with industry business process automation, through multi-function RFID cards.

I take the departure from international airline industry goals, and industry desire to profit from measures imposed in the name of security, as a significant victory for privacy sentiment in the USA, and a sign of the public's recognition of their privacy interest in travel records.

Looked at another way, it's a sign of the disinterest of USA government agencies or businesses in international standards.

Brill's company, of course, will profit from selling protection from the men and women with the wands, the rubber gloves, and the power to rummage through our hand bags. The fact that people are willing to pay $80 a year for even the possibility of a reduced risk of being subject to their more intrusive searches speaks volumes about the degree to which the TSA's minions are feared and resented.

Other profiteers from this protection money are the travel agents who will get a cut (amount not disclosed) for promoting this "benefit" to their clients. In today's issue of Travel Weekly (available online only to subscribers), Dennis Shaal reports that the Cendant Corp. , which owns both Orbitz.com and the Galileo/Apollo computerized reservation system as well as a massive array of franchise brands and customer data aggregation systems, has signed an exclusive deal with Verified Identity Pass, Inc. to market the "Clear" known-traveler cards to Orbitz.com and other Cendant business travel customers. A separate partnership to market the program to leisure travellers is in the works, Schaal reports, and "The idea seems to be on a fast-track."

[Addendum, 28 September 2005: There's more on the registered traveler pilot programs in the Wall Street Journal today, confirming that the TSA intends to expand the program on the Orlando model and noting the desire of airport authorities to control the traveller registration system, rather than having it operated independently. What the Journal doesn't mention is the reason that airlines and airports want control of these programs, which is their desire to have access to the same "security" credentials for their own use in passenger processing in place of separate cards or credentials for payment, tickets, luggage checks, boarding passes, frequent flyer credentials, etc. -- with obvious privacy implications for aggregation and integration of personal travel histories.]

".travel" on verge of launch despite my request for stay

.travel domain names for businesses in the travel "industry" are scheduled to go live beginning next Monday, 3 October 2005, despite my pending request for independent review of the (secret) manner in which ICANN approved ".travel" and delegated control of it to an insolvent sham front corporation, and my request for a stay of the ".travel launch while my request for independent review is pending.

A month ago, 26 Auguest 2005, ICANN General Counsel and Secretary John O. Jeffrey responded to my last e-mail to ICANN with the seemingly encouraging words, "Thank you for your response, we will review all of the materials that you have submitted to date and get back to you." Not surprisingly, I've heard nothing from him, or anyone at ICANN, in the month since.

I've written to ICANN again today, as follows:

From: "Edward Hasbrouck" edward@hasbrouck.org
To: "John Jeffrey" jeffrey@icann.org
Subject: RE: Request for independent review
Cc: "Vinton G. Cerf" vint@google.com , "Paul Twomey" twomey@icann.org
Date: Mon, 26 Sep 2005 20:19:19 -0800

One month has passed since your last message to me.

I have received no further communication from ICANN in the last month.

More than 5 months have passed since my requests for independent review of the (lack of) openness and transparency in the ".travel" decision by ICANN, and for a stay of that decision pending independent review.

In the meantime, ICANN in its role as IANA made a recommendation for the addition of ".travel" to the root. The existence of a pending request for independent review and stay of ".travel" was not mentioned in this report.

".travel was added to the root .

The Tralliance Corp. subsidiary of TheGlobe.com went live with the first ".travel" Web site at http://www.travel.travel .

Tralliance (TheGlobe.com) has announced its intention to launch additional ".travel" second-level domain names beginning next Monday, 3 October 2005.

When, if ever, do you expect that ICANN will consider or act on my requests for independent review, and stay pending independent review?

Does ICANN intend to consider my request for a stay before the general launch of ".travel" second-level domain names next Monday?

Sincerely,

Edward Hasbrouck

[Addendum, 29 September 2005: First .travel Domain Names will be Issued on October 3 (Tralliance press release; no mention of my pending request for independent review of ICANN's delegation of ".travel" to Tralliance)]

"The Amazing Race 8: Family Edition" broadcasts start this Tuesday; "The Amazing Race 1" on DVD

Broadcasts of The Amazing Race 8: Family Edition will begin this Tuesday night, 27 September 2005 (9-10 p.m. ET/PT, 8-9 p.m. CT/MT) on CBS-TV in the USA.

I've posted a tentative broadcast schedule based on this starting date. Profiles of the cast members are on the CBS-TV Web site for "The Amazing Race 8".

This season will be the "Family Edition" of the reality-TV show about travel around the world, with teams of 4 travellers, some of them including children. A growing number of families, including children, are taking trips around the world. So I'm looking forward to covering this angle in my weekly columns on the Family Edition season. Sign up for my newsletter if you want to get my columns by e-mail. (They'll also be posted here in my blog.)

For the following season, "The Amazing Race 9" (already being cast) will return to the format of the previous season, with teams of 2 adults with a variety of relationships, not just families. Click here for more on how to apply for future seasons of "The Amazing Race".

Television schedules are always subject to change. But assuming that nothing else has changed, and that there are 13 legs of the race, with two of them broadcast in a single final episode, and that none of the broadcasts are preempted by holiday or other programming, that would put the finale of "The Amazing Race 8" on Tuesday, 13 December 2005.

The same day as the premiere of the new "Family Edition" season, the first season of The Amazing Race will be released on DVD as a 4-DVD set including all the originally broadcast episodes as well additional and behind-the-scenes footage, interviews with the producers, and commentary by participants including Team Guido . You can pre-order it now for shipping 27 Septmeber 2005.

Lies from "my" lawyers in copyright class action lawsuit

On the eve of the court hearing scheduled for this coming Tuesday to decide whether to approve a proposed settlement giving the New York Times and its co-defendant copyright infringers future rights in perpetuity to sell, license, and sublicense the electronic rights to freelance articles that they've been stealing for years, the Times this past Monday began charging new fees (a US$50 monthly subscription fee and/or a per-article fee, none of which goes to the authors) for online access to articles (including those to which the Times has never paid for, nor acquired, the electronic rights).

The Times has been gearing up for this for months. So it's odd that they launched the new subscription fee and services now, rather than waiting a week for the settlement granting them rights to be approved. But their greed is, apparently, impatient. Clearly this is their attempt to monetize, as quickly as possible and without even waiting to get the settlement approved, the value of the settlement's grant of future electronic rights to freelance work.

TimesSelect has been launched with intense promotion including an 8-page insert in Monday's print edition, and has prompted a lot of discussion in print and the blogosphere this week on the value of electronic rights to archived articles.

For example, the boldface money quote in this article is from Scott Heekin-Canedy, President & General Manager, The New York Times: "Our research very strongly supports willingness to pay far beyond what we're charging."

Editor & Publisher says:

Martin Nisenholtz, president of New York Times Digital, says the catalyst for the shift in strategy is to build a significant online revenue stream on top of advertising.... Nisenholtz is convinced that TimesSelect has a good shot at achieving that goal.... He points out that NYTimes.com has offered a number of piecemeal premium services in the past, but in aggregate they only brought in a couple million dollars a year. The ambition is to have a much larger revenue stream. He's looking for significant numbers. The goal won't be met with TimesSelect subscription numbers in the tens of thousands, Nisenholtz says; it needs to be in the hundreds of thousands in the early years, and even more over the long term.

At US$50 per month per subscriber, that adds up.

And the Times and its co-defendants in the copyright class action lawsuit are proposing a settlement that values rights in perpetuity to the freelance portion of the Times archives, and those of tens of thousands of other publishers, and the entirety of over 100,000 books included in Amazon.com's "Search Inside the Book", at US$10-18 million?

Given the value they place on electronic rights, I assume the reason the Times didn't start charging for electronic access sooner is that they didn't want to call attention -- while the settlement negotiations were going on, and while authors still had the opportunity to demand more in the settlement, or to opt out of the settlement -- to how much more valuable the rights they are getting will be to them than the amount they will pay in the settlement.

The deadline for writers to opt out of the proposed settlement was Monday, 12 September 2005. The new "TimesSelect" scheme went into effect at the start of the very next week, on Monday, 19 September 2005.

The timing... well, you can draw your own conclusions.

The settlement sucks , and the lawyers who purport to represent writers are lying to the Federal Court hearing the case, to try to justify the sell-out.

Some of those lies relate directly to my conversations with counsel for the class and for one of the organizations to which I belong, the National Writers Union. I've opted out of the class subject to the settlement in order to preserve my rights even if the settlement is approved. But I also felt obligated, once I knew that "my" lawyers were lying about me in their pleadings, to send the following e-mail message today regarding this:

From: "Edward Hasbrouck" edward@hasbrouck.org
To: mboni@kohnswift.com , ajd@girardgibbs.com , drice@hosielaw.com
Cc: Copyright Class Action counsel and parties
Date: Sat, 24 Sep 2005 18:02:02 -0800
Subject: False statements in your memo

It has come to my attention that your "Memorandum of Law in Support of Plaintiffs' Motion for Final Settlement Approval" in "In Re Literary Works In Electronic Databases Copyright Litigation", contains materially false statements of material facts, which you knew to be false when you filed that memo.

I found a copy of your memo , signed by Mr. Boni over the names of himself and co-lead class counsel and dated 19 September 2005, at:

http://www.asja.org/media/nr050329b.pdf

To my personal knowledge, on the basis of my e-mail correspondence and telephone conversation with you, you were personally aware of the falsehood of the following two claims in your memo:

(1) "None of the thousands of visitors to the Associational Plaintiffs joint website has voiced any criticism of the Settlement." (section III ( C )(2), page 22 of your memo)

(2) "Neither the author nor Chalmers claims that the book in question has ever been copied by any Defense Group member." (section III (E)(3)(a), pages 49-50 of your memo, referring to me as "the author" and to one of my books as "the book in question")

I am writing to make sure that all class counsel and other parties to the case, and of course the Court, are aware that you as class counsel have lied to the Court in your pleadings.

I don't know if this is a crime, a tort, professional malpractice, an attempt to perpetrate a fraud on the Court, misconduct as an officer of the Court, some of the above, or all of the above.

I do know that it is wrong, unethical, and offensive.

As you know, I have opted out of the settlement, as explained in my declaration filed with the Court and posted at:

http://hasbrouck.org/articles/copyrightclassaction.pdf

As you know, I was unable to use the form on the Web site for the proposed settlement to seek advice as to whether I was a member of the class eligible to submit a claim or to object to the settlement. This was because the form to submit "comments" requires as a condition of submitting a comment that the would-be commenter check a box labelled, "By checking the "I Agree" box, I hereby certify that I am a class member," which I couldn't certify because I didn't know and was trying to find out.

Being unable to obtain advice through the Web form, I sent an e- mail message on Thursday, 1 September 2005, to the address on the Contact Us page of the Web site, "CopyrightSettlement@girardgibbs.com".

Having received no response to that e-mail message, I sent a follow-up e-mail message on Wednesday, 7 September 2005 to the individual e-mail addresses given in the detailed settlement notice for each of the three co-lead class counsel. If you don't keep copies of the e-mail messages you receive from clients, it has been posted (with my permission) at:

http://freelancerights.blogspot.com/2005/09/author-edward-hasbrouck-why-im-opting.html

The three addressees of this message were three of the four names that appeared as "Co-Lead Class Counsel" on your memo of 19 September 2005.

I know from their responses that at least two of the three of your firms received that message, and thus were aware that I, as a visitor to the Associational Plaintiffs' Web site, had voiced criticisms of the proposed settlement.

(For the record, many others voiced criticisms of the proposed settlement in forums in which I participate as a freelance writer and as a member of one of the associational plaintiffs, the National Writers Union.)

I received a response by e-mail on Friday, 9 September 2005, from a paralegal at class counsel Girard Gibbs & De Bartolomeo.

I received a voicemail message later that same day, Friday, 9 September 2005, from a person who identified himself as Michael Boni , and asked me to call him back at 215-238-9570. I called that number, and my call was answered by what sounded like the same person who again identified himself as Michael Boni. Mr. Boni and I then spoke for about half an hour.

At the start of the call, Mr. Boni volunteered that he understood from reading my e-mail message that I had unable to use the Web comment form, and had not received a response to my e-mail to the address on the Web site. "I apologize for that, and that a lawyer didn't contact you sooner," he said.

Next Mr. Boni asked me what my status was with respect to the proposed settlement. I explained that my problem, with which I was seeking the assistance of class counsel as my attorneys, was that I was unable to determine whether I was a member of the class. I made clear that it was a criticism of the proposed settlement that I and others similarly situated could not determine whether or not we are members of the class eligible to participate. It was clear to me that Mr. Boni understood this to be a criticism of the proposed settlement, even though he was not persuaded that it was a justified criticism.

After receiving my e-mail, and after our conversation, how could you sign a memo stating in its description of "The Reaction of the Class to the Settlement" (section III ( C )(2), page 22), that "None of the thousands of visitors to the Associational Plaintiffs joint website has voiced any criticism of the Settlement"?

I had voiced such criticism directly to you, and you knew of my inability to use the Web comment form and the lack of response to e-mail sent to the address on the Web site.

The description of the proposed settlement in section II ( C )(1)(a) at page 6 of your brief erroneously describes the "Defense Group" as consisting only of (1) certain named database operators and (2) certain named newspaper publishers.

In fact, as I pointed out in my e-mail message, and again during our conversation, the definition of "Defense Group" in section (1)(h) of the proposed settlement also includes their "affiliates".

Similarly, the "Released Claims" as defined in section (1)(n) of the proposed settlement include claims against "all of their past, present, and future ... affiliates ... and all of their respective ... licensees".

According to the Supplemental Notice of Settlement , Amazon.com is, or purports to be (I do not concede that Amazon.com has any valid license to my work) a "licensee" of "one or more of the Database defendants". And Amazon.com says on its Web site that it has "over 1,000,000" affiliates:

http://www.amazon.com/gp/browse.html/?node=3435371

So, as I pointed out to you in my e-mail message to you and in our phone conversation, whether I or any other author whose work was infringed by Amazon.com's Search Inside The Book program is a member of the class eligible to participate in the settlement, and whether my and others' claims against Amazon.com would be released by the settlement, depends on the terms of Amazon.com's "license", and on whether Amazon.com and any member(s) of the Defense Group are among each other's million and more "affiliates".

I asked you specifically whether I was a member of the class. You said you didn't know, and you could suggest no methodology by which I could determine that.

I asked you whether my works were included in Amazon.com's "license". You said you didn't know, and you could suggest no methodology by which I could determine that.

I asked you whether Amazon.com and any member(s) of the defense group were "affiliates". You said you didn't know, and you could suggest no methodology by which I could determine that.

But in section III (E)(3)(a) at pages 49-50 of your brief, you say with respect to my book, and me as its author, "Neither the author nor Chalmers claims that the book in question has ever been copied by any Defense Group member."

You know that this statement in your brief is not true.

I had made such a claim, to you, both in my e-mail -- which you acknowledged to me that you received -- and during our phone conversation.

I claimed (and continue to claim) that Amazon.com has copied my book, and that Amazon.com is probably a Defense Group member as an affiliate and/or licensee of one or more of the Database Defendants.

Why did you lie to the Court and deny that I had made this claim to you?

Your brief continues, "the work [i.e. my book] gives rise to no claim and is subject to no release under the Settlement".

If you knew that I had no claim, why did you tell me you did not know, and had no way to determine, whether the infringement of my book by Amazon.com made me eligible to make a claim?

Why did you tell me one thing -- as your client who was seeking your advice as my legal counsel in this matter, as a member of one of the Associational Plaintiffs you represent, and a possible member of the class you claim to represent -- and tell the Court something contrary in your brief? Whose interests were you actually representing when you spoke with me? And if that's what happened to me, as someone who actually persevered until I got a response from class counsel, what does that say about the advice that other potential claimants did or didn't receive?

I believe that the most appropriate form of apology and redress would be for you to withdraw your motion for approval of the proposed settlement (including its provisions with respect to attorneys' fees) and any motions for attorneys' fees, withdraw your appearance as counsel for the National Writers Union (of which I am a member) and for the class, and release the National Writers Union and all of its present and past officers from the obligations contained in section 9, pages 24-25 of the proposed settlement agreement with respect to their support for the proposed settlement agreement and their communications with their members, other potential members of the class, and the public.

Should you decline to do the right thing, and withdraw yourselves and your motions from this case, I will have no recourse other than to ask the Court, and/or other disciplinary bodies with jurisdiction over your professional misconduct, to impose appropriate sanctions including, but not limited to, the denial of your motions for approval of the proposed settlement and award of fees. I would find it unconscionable, as I trust the Court would, to award fees to you for such misconduct.

I am copying this message to all class counsel and to all other interested counsel (as identified from those other pleadings in this case which I have seen) whose e-mail addresses are known to me.

I am also copying this to several officers of the National Writers Union, the Associational Plaintiff on whose behalf (among others) you filed your memo, and of which I am a member, so that they will be aware that knowingly false statements have been made to the court by you as NWU counsel, and that I as a member of the NWU have been misrepresented by you as NWU counsel. And for the benefit of others who might be misled by the false claims in your memo, I am posting this in my blog at:

http://hasbrouck.org/blog/archives/000812.html

I look forward to your prompt response before the hearing on your motions currently scheduled for this Tuesday in New York.

Sincerely,

Edward Hasbrouck

USA Today on holiday flights

Now's the time to book holiday flights (Laura Bly, USA Today, 23 September 2005):

"I would be surprised to see any airlines go under before New Year's, but holiday schedule disruptions could be problematic," warns Edward Hasbrouck, a San Francisco-based travel expert. "When flights are already fully booked at the holidays, it can be difficult or impossible to accommodate passengers if a flight is canceled. If the airline decides to reduce its frequency of service on the route, a refund is small consolation."

Whither "Secure Flight"?

As of today, there's still been no official announcement from the USA Transportation Security Administration (TSA) or its parent the Department of Homeland Security (DHS) concerning their plans for the Secure Flight airline passenger screening and surveillance system.

Earlier reports had suggested that the TSA/DHS would publish a Privacy Act notice in the Federal Register by early this month for the next phase of deployment (which they have to call "testing" if they want to evade the Congressional restrictions on non-test deployment) of Secure Flight.

That hasn't happened, but today the Wall Street Journal reports:

The agency has decided to launch the program without using commercial data, said TSA chief Kip Hawley.... Secure Flight is now expected to launch by early next year, according to one person interested in the program who was briefed by a top TSA official.

According to this account, regulations governing it will be issued in the next few weeks, with the program set to begin with at least a handful of airlines as early as November -- or if it can't get off the ground before Thanksgiving, then in early 2006.

Assuming (as I do) that this report is true, it's hard to know how to interpret Hawley's remark. On its face, it's absurd: the whole point of Secure Flight and its predecessors CAPPS-II and CAPPS 1 was to make determinations about prospective airline passengers on the basis of information about them in passenger name records (PNR's) in commercial databases of airline reservations.

I think what TSA administrator Hawley really means is that the TSA won't use commercial data except PNR's in Secure Flight, and that the only way the TSA can evade the restrictions placed by Congress on the use of commercial data for secure Flight is to pretend, nonsensically, that PNR's are sui generis and not "commercial data" (when of course that's exactly what they are).

It remains to be seen whether the TSA/DHS will also repeat, in its next revised Privacy Act notice, their equally absurd claim that PNR's -- with their details of when, where, and with whom we travel -- don't contain any information about how we exercise our right to assemble (a claim they have to make if they want to evade the restrictions in the Privacy Act on Federal government collection of data about the exercise of rights protected by the First Amendment to the Constitution of the USA).

Meanwhile:

• Last month the Inspector General of the USA Department of Justice (DOJ) released a redacted version of their report to Congress on DOJ activities (as the operator of the FBI's "Terrorist Screening Center" that provides TSA/DHS with "watch lists") in support of Secure Flight. Even in its redacted form, the DOJ auditors' report is the most detailed official account to date of how the TSA imagines that Secure Flight would work. But the gist of the report is that the TSA hasn't yet decided enough about the program to be able to tell whether it would work, how much it would cost, what it would require from other agencies, or how long it would take to implement.
  
  
• The DHS Privacy Office held a Public Workshop: Privacy and Technology: Government Use of Commercial Data for Homeland Security on 8-9 September 2005 in Washington, DC. Oddly, although airline reservations have clearly been the category of commercial data of greatest interest to the DHS, none of the invited presenters appears to have been an expert on airline reservations.
  
  
• The TSA's Aviation Security Advisory Committee (ASAC) met today and received the report and presentation of its "Secure Flight Privacy/IT Working Group". The working group report itself has not (yet) been released, but reportedly says more information about the scheme should be made public before it is put into effect. Unfortunately, while the Working Group is composed primarily of bona fide privacy and IT experts, it doesn't include any experts on airline reservations. In any event, as I've noted previously, the ASAC is purely advisory, and has no authority.
  
  
• The DHS Data Privacy and Integrity Advisory Committee will meet next Wednesday, 28 September 2005, in Bellingham, WA. The Committee's ongoing review of Secure Flight is on the agenda, and I wouldn't be surprised if the official unveiling of the TSA's latest revised version of Secure Flight (should we call it, "CAPPS-4"?) takes place at this meeting.

If any of my readers was, or is, at any of these events, please let me know how they went.

[Addendum, 23 September 2005: The report of the ASAC Secure Flight Working Group, as well as the report of the consultant who facilitated the preparation of the group's report, were posted on the TSA Web site sometime last night or early this morning.]

United Airlines to move its reservation database to Amadeus

United Airlines will be moving its reservation database to a computerized reservation system (CRS/GDS) based in the European Union, according to a joint announcement by United Airlines , Amadeus , and the Star Alliance .

The move to a new host for United's database of passenger name records (PNR's) is part of an effort by the Star Alliance to move from being purely a brand label and marketing consortium to at least some degree of operational and infrastructure standardization between members.

Currently, United's PNR's are hosted by Galileo International (marketed in the USA as the "Apollo" CRS/GDS), now a subsidiary of the Cendant Corp. but originally created by, and spun off from, United itself.

The announcement is ambiguous as to whether it specifically entails moving the PNR database hosting, or when that might happen. But Business Travel News reports:

For United, the move to Amadeus means a move off the Apollo reservations system.... Cendant said it "will continue to host United according to the current contract terms," and that Star's announcement was expected. Noting the complexities in switching platforms, Cendant said "it is unlikely that United will begin any such migration before late 2008."

Despite the interconnections between the four major CRS's/GDS's, the most reliable information about an airline's flights, fares, and reservations is typically that provided by the CRS that hosts the airline's master PNR database, and that is used by the airline's own reservations and ticketing staff and rate desk. The travel agency where I work, Airtreks.com , uses Amadeus as our primary CRS/GDS, although we also use Sabre and, rarely, Galileo/Apollo. Assuming we continue to work that way, a move by United to Amadeus would give us more better information about United flights and fares, and our clients' United reservations.

But should travellers care? Possibly, if they care about their privacy. Amadeus is the only major airline reservation hosting company based in the EU (the other three of the big four are based in the USA), and United will be the only major airline in the USA with its reservations hosted by an EU-based company.

(In several previous articles, I wrote incorrectly, based on the information I had at the time, that Continental Airlines' reservations were hosted by Amadeus. While neither Amadeus nor Continental responded to my inquiries before or after those stories appeared, or attempted to correct my error, I've since learned that, in an unusual arrangement, Continental uses Amadeus to host its fare database and to perform pricing and some other functions, but hosts its PNR database separately in the USA in the SHARES system run by EDS .)

The major USA-based CRS's (Sabre, Worldspan, and Galileo/Apollo), all operate in the EU, serve EU customers and subscribers, and are subject (for at least that portion of their data collected in the EU) to the EU Data Protection Directive, the even more stringent PNR confidentiality provisions of the EU Code of Conduct for CRS's , and the EU restrictions on the transfer of personal information form the EU to countries (such as the USA) that don't provide an "adequate" level of protection to that data, once it is transferred. The temporary "adequacy finding" by the European Commission, currently under legal challenge by the European Parliament in the European Court of Justice, pertains only to the adequacy of protection afforded data transferred to the USA government . PNR data transferred to commercial entities, such as CRS's and other airlines, has no legal protection whatsoever in the USA, which is clearly "inadequate" by EU law.

Still, United's move is likely to focus attention, as it should, on Amadeus' flagrant violation of EU privacy laws and the privacy clause of EU CRS regulations in its trans-Atlantic PNR transfers. And it will entitle all subjects of data in United reservations -- including passengers and travel agents in the USA and worldwide -- to the full protections of EU law with respect to data about them in PNR's.

The focus on Amadeus'(non)compliance with EU privacy law in its USA operations may also prompt long-overdue scrutiny of Amadeus' wholly-owned USA subsidiary Airline Automation , the world's largest multi-airline, multi-CRS, PNR data warehouse and aggregator. In 2002, Airline Automation provided the channel for the secret, nonconsensual transfers of more than a million PNR's to contractors working on the USA government's CAPPS-II airline passenger screening and surveillance scheme. I've seen nothing to suggest that, since being acquired by Amadeus in 2003, Airline Automation has brought its practices into compliance with EU privacy law. Airline Automation itself, as well as Amadeus spokespeople in the USA and the EU, continue to decline comment on Airline Automation and EU privacy law.

New class action against Google for infringement of book copyrights

Authors Guild Sues Google, Citing 'Massive Copyright Infringement'

The Authors Guild and [three individual authors] filed a class action suit today ... against Google over its unauthorized scanning and copying of books through its Google Library program.....

Through its Library program, Google is reproducing works still under the protection of copyright....

"This is a plain and brazen violation of copyright law," said Authors Guild president Nick Taylor. "It's not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied."

[See the Writing and Publishing section of this blog for my previous articles on Google's infringement of book authors' copyrights.]

Northwest Airlines and Delta Air Lines are bankrupt

Just before the close of business today at the courthouse in New York, Northwest Airlines and Delta Air Lines (including its Comair subsidiary and its Song brand) petitioned for protection from their creditors under Chapter 11 of the Federal bankruptcy laws.

United Airlines, US Airways, ATA Airlines ("American Trans Air"), and Aloha Airlines are already operating in bankruptcy.

If you already bought tickets on an airline that has filed for bankruptcy protection, don't panic. You are at risk of losing your money and not being able to travel, but there's not much you can do about it.

If you haven't bought tickets yet, don't buy tickets on an airline that is already bankrupt. A bankruptcy filing is your final warning before an airline could be shut down by the bankruptcy court, leaving ticket holders stranded. A better schedule, a more direct route, or a lower price probably aren't worth the greater risk that you might not get where you are going at all, or might not get back home.

Plan for the possibility of substantial changes to routes and schedules. As long as the airline is still operating, you'll probably still arrive sometime the same day as was originally scheduled, but be prepared for a daytime flight to become an overnight flight, or vice versa, after you've bought your tickets. Allow a generous amount of extra time (at least overnight, preferably 24 hours, the more so the more important the appointment) between your scheduled flights and any time-critical events such as business meetings or the departure of a tour or cruise.

Delta claims that, "Your travel plans are secure", "You can count on [our] flights", and "Your SkyMiles are secure". Northwest "emphasized that it will continue to operate normally".

All of these statements are at best misleading, and at worst fraudulent. As I explain in more detail in my FAQ about Airline Bankruptcies , and as I've been explaining in a series of interviews with other journalists today, the petition for bankruptcy protection puts the decision as to whether Delta will be allowed to continue to operate, to honor previously purchased tickets, or to operate its SkyMiles frequent flyer program (which it could shut down at any time, even without bankruptcy) in the hands of the bankruptcy court, not the airline's management. Indeed, today's filings by both Delta and Northwest include motions like this one from Delta and this one form Northwest for permission from the courts (which will probably be granted initially, but could be withdrawn at any time) to operate flights, honor tickets, and operate frequent flyer programs -- or shut them down.

Delta:

By this motion ... the Debtors request entry of an order ... authorizing but not directing them in their business judgment to (a) perform and honor such of their prepetition obligations related to the Customer Programs [which "include, among others, advance ticket sales"] as they deem appropriate and (b) continue, renew, replace, implement new, and/or terminate Customer Programs as they deem appropriate.

Northwest:

By this Motion, the Debtors request that this Court enter an order ... authorizing (but not directing) the Debtors to pay or honor pre-petition obligations to ... customers.

Is this consistent with the claims on their Web sites and in their press releases? I don't think so. But of course, you can't sue them for fraud, or for anything else, while they are in bankruptcy. All the potential ticket buyer can do is beware.

Delta's use of the term "secure" is particularly deceptive: It suggests that payments for tickets are "secured", when in fact ticket holders are "unsecured" creditors. Bankruptcy is not secure, and the airline itself can make no promises about what the courts will decide. Anyone else lending money to a bankrupt airline will demand real security for their loans. Customers paying for future travel should do likewise -- in effect, they are giving the bankrupt airline interest-free, unsecured loans.

More background information, advice, and news reports I'm quoted in:

• FAQ about Airline Bankruptcies (updated today)

• Air travel news: What travelers must keep in mind (Ellen Creager, Detroit Free Press, 14 September 2005)

• Northwest files for bankruptcy (Annie Baxter, Minnesota Public Radio, 14 September 2005)

• Chapter 11 process of some help to customers (Chris Walsh, Rocky Mountain News, 27 August 2005)

• Delta flies under a cloud (Ina Paiva Cordle and Jim Wyss, Miami Herald, 15 September 2005)

• Northwest, Delta file for Chapter 11 bankruptcy (Stefanie Murray, Lansing State Journal [MI], 15 September 2005)

• A traveler’s guide to flying with airlines in bankruptcy (Tacoma News Tribune [WA] / McClatchy Newspapers, 15 September 2005)

• Few changes seen for now for travelers (Ashbury Park Press [NJ] / Gannett News Service, 16 September 2005)

• Will Delta be ready when you are? (Douglas Sams, Gwinnett Daily Post [GA], 16 September 2005)

[Updated 17 September 2005 to add links to, and quotes from, the actual bankruptcy filings, and more news clips. Note note that the headlines on some of these news storeis are directly contrary to my own comments in the articles.]

Update on electronic copyright infringement

The largest-scale bootleggers of the written word on the Internet are attempting to extend their thieving through measures represented as a "concession" to writers' and publishers rights by Google.com, and a proposed "settlement" of claims against by writers against publishers that includes a poorly-disclosed giveaway of rights to unlimited future use, in perpetuity, of work by authors most of whom would receive no compensation at all, or at most a nominal one-time fee.

Writers and authors have difficult decisions to make on the proposed settlement of the class action lawsuit against publishers and electronic databases, and a deadline today after which many of your rights as a writer will be forfeited by default if you take no action, even if there has not yet been any infringement of your work or you are unaware of any infringement, and even if you make no claim for damages under the settlement.

The settlement has been enlarged to include a potential default grant of future rights not just in newspaper and magazine articles but also books and Internet content. The scope of the class of works, writers, and copyright infringers (past, present, and future) affected by the settlement is unknown, and could be further enlarged even after tomorrow's deadline for making claims or opting out.

If you've written anything you don't want someone else to sell for their sole profit, read the extended entry in which I report on the conclusions I've come to after consultations in the past few days with some of the original plaintiff organizations who have proposed the settlement, and their attorneys, and with the attorney for a growing group of plaintiff writers who are objecting to the proposed settlement as an unconscionable sell-out of writers' interests.

In August, Google.com announced that it was postponing the addition of any more scanned and digitized copyrighted books to "Google Print" until 1 November 2005, and allowing copyright holders to "opt out" of having their work appropriated and redistributed electronically by Google.com (for which, of course, Google.com had never obtained permission in the first place).

Not surprisingly, publishers and writers, who currently own the rights to electronic reproduction and distribution of these books, are unsatisfied by Google.com's "generous" offer to postpone its plans to publish more works it doesn't own, and to desist from further bootlegging of specific books -- on request, book by book, by the copyright holder.

I've written previously about the infringement of writers' copyrights by Google Print and Google News , and electronic publishing schemes like Amazon.com's Search Inside The Book .

The Association of American Publishers (AAP), the Association of Learned and Professional Society Publishers (ALPSP) and the Text and Academic Authors Association (TAA) have joined the American Association of University Presses (AAUP) in criticizing the scheme as getting copyright law backwards, presuming a grant of electronic publication rights to Google.com in the absence of an explicit "opt out" in a form and manner of Google.com's choosing.

Copyright law requires an explicit "opt in" license except in cases of "fair use". Google.com claims that Google Print is permitted by fair use , but it doesn't appear to satisfy any of the criteria for fair use. The same article that reported Google.com's "fair use" claim also noted that, as with Amazon.com's Search Inside the Book , the purported limits on display and downloading were inevitably ineffective. Anybody who's clever enough can download the entire book. Sorry, Google.com. That's wholesale theft, not fair use.

Lawsuits seem inevitable. Google.com ought to lose, but they can probably afford a lot more lawyers, which is sometimes decisive no matter how poor the legal argument.

Meanwhile, the deadline is today for writers and authors to decide what to do about the proposed settlement of the class action lawsuits that followed the Supreme Court's 2001 decision that publishers had violated freelance writers' rights when they distributed their articles electronically, separately from the original publication, without the authors' permission.

In 2001, in New York Times vs. Tasini , the U.S. Supreme Court upheld copyright infringement judgments against the New York Times, Time Warner AOL, Newsday, Mead Data Central (Lexis/Nexis), University Microfilms, and others, for making available comprehensive searchable electronic databases of content to which the rights to electronic publication were owned by the authors and photographers, not the publishers.

The New York Times vs. Tasini decision only directly affected a small group of named plaintiffs, but it set a clear precedent applicable to any other case in which a newspaper or other periodical licensed only the right to publish a article in print, but also published it electronically -- downloadable or retrievable in standalone form, separately from the printed "collective work" in which it first appeared.

In fact, by the time of the Supreme Court decision such a copyright infringing practice had become the norm for most printed periodicals: Publishers were (and are) getting more and more money from "database publishers" for electronic copies of freelance articles they had published in their print editions, but freelance writers had never authorized this redistribution of their work in electronic form, and were (and are still, in most cases) receiving not a penny of what users pay for it.

So when, in the wake of the New York Times vs. Tasini decision, class action lawsuits were filed against the Times and other periodical and database publishers and copyright thieves, there was no question of the defendants' legal liability. If they went to trial, they would lose. The only issue to be decided was the amount of the damages, and that has been the subject of prolonged negotiations.

While the negotiations were going on, the New York Times routinely used its pages to disparage the value of electronic rights (and thus the amount of damages it should have to pay for its systematic and ongoing infringement of freelancers copyrights) in a succession of articles like The Tyranny of Copyright -- never disclosing, in these opinion and "news" articles, its own financial interest in persuading its readers -- as potential members of the jury that might eventually determine damages owed by the Times -- to minimize the value of electronic rights and amounts owed for them to writers.

In August, with the proposed settlement of the class action against the Times et al. pending final approval by a Federal judge, even the Times public editor (a sort of ombudsman), Byron Calame, got into the act with an opinion column mentioning the cost to the Times of paying for electronic rights (which they don't yet do), but not mentioning the pending lawsuit, the Times liability, and the undisclosed conflict of interest that creates.

When I complained, Calame replied by e-mail that, "I didn't know about any prospective court proceedings on electronic rights to the work of freelancers at The Times. So it didn't affect my decision to do a column on freelancers -- or what I wrote.... Had I known about the court proceedings, I think I would have tried to address the perception question you raise." But he hasn't yet done so, either in the pages of the paper or in his blog .

Anyway, what's the story on the proposed settlement of the copyright class action? Why should writers care? What should they do?

When I first heard about the case, I assumed that it didn't affect me: my writing appears in books and on the Internet, and only rarely in the magazines and newspapers that were the original focus of the class action lawsuit.

In August, however, I learned from the National Writers Union that Amazon.com had joined the case in late July as a (purported) "licensee" of one or more of the other defendants and/or participating publishers. (The whole point of the case, of course, was that none of the defendants or participating publishers actually owned the "rights" that they purported to license to Amazon.com and other electronic publishers .)

In 2003, Amazon.com scanned and digitized the entirety of at least one of my books into a database from which they gave away electronic copies had, without my permission. That prompted me to take a careful look at the proposed settlement to see if it would compensate authors like me for Amazon.com's infringement of our copyrights in our books.

The settlement includes any (purported) licensee of any of the defendants or participating publishers, and any work "licensed" by them or included in one of the defendants' databases as of the final effective date of the settlement, which won't be until sometime after 30 September 2005.

Despite my best efforts I've been unable to determine whether I or other authors whose work was infringed by Amazon.com are even eligible to participate. I don't know what sort of "license" Amazon.com claims to have, or with whom, for its use of my book.

And a new (purported) license could be granted to Amazon.com by one of the defendants, or new material (including content from my books or my writings on the Internet) added to the defendants' databases from today until the effective date of the settlement -- after it's too late for writers to opt out of the settlement.

Having decided, tentatively, to opt out of the settlement, I contacted the attorneys for the class of writers proposing the settlement (my attorneys, if I'm a member of the class) to see if they could suggest any way that I could figure out whether I was eligible to make a claim, or eligible to object to the settlement, and what I should do.

Their response to my query came in a curt e-mail message: "It is the author's responsibility to establish which works he believes are eligible under the settlement and to include each of them in his claim form. We unfortunately have no easy way to do this or help you with this." Very helpful.

Somewhat to my surprise, I also got a phone call Friday from one of the attorneys proposing the settlement, Michael J. Boni . Boni seemed to be making a serious attempt to answer my questions as a possible client member of the class he represents. But he was unable to suggest any way I could determine whether I am a member of the class, eligible to participate in the settlement, or to object to it. He couldn't point to any specific language in the settlement supporting his claims about what it does and doesn't mean. And he seemed unwilling to consider the possibility that the settlement agreement might be potentially subject to abuse to indemnify infringements beyond those that were the cause of the original complaints.

I also spoke Sunday with Charles D. Chalmers , the attorney for a group of writers including former NWU staffer Irvin Muchnick who are objecting to the proposed settlement.

Boni and Chalmers agreed on only one thing: both of them advised that, if I wasn't going to make a claim, or if my primary concern was possible infringement of my copyrighted books or writings on the Internet (rather than newspaper or magazine articles), I should probably opt out of the settlement class to protect my rights. I got essentially the same advice from the Grievance and Contract Division of the National Writers Union:

If you've published non-fiction articles or books since 1977 you should either file a claim by Sept. 30 or opt out today. If you do neither, the defendants are free to keep on selling your intellectual property with no payment to you, and you can never file suit against them for infringements that are already
going on.

So the one thing everyone agrees on, whether they are proposing or opposing the settlement, is that the default terms that apply to writers who take no action are probably not in those writers' interests. Why, then, is anyone proposing those default terms? That's a good question, which Irv Muchnick has tried to answer in his blog and in his correspondence with the named plaintiffs. It's with good reason that Muchnick and the other objectors call the proposed settlement "unconscionable".

But for the writers who may get stuck with this settlement, the reasons don't matter so much as the fact that (1) today is the deadline, and (2) the worst possible thing you can do is to do nothing.

If you do nothing, you are bound by the settlement. And unless you "opt out", any of the defendants, and any of their "licensees" (as of the final effective date of the settlement sometime in the future), acquires rights under the settlement to unlimited use, licensing, and sub-licensing, in perpetuity, for their sole profit, of any of your work subject to the settlement -- even works you didn't know had been infringed, and for which you made no claim for damages!

The more writings they can find a way to infringe and add to their databases between now and the effective date of the settlement, the more rights they acquire -- for no additional compensation, since the deadlines for opting out or making claims might already have ended before the infringement, and the settlement is capped at US$18 million, a pittance compared to the statutory damages for infringement of copyright in more than 100,000 books by Amazon.com alone.

If you don't file a claim, you won't get any money from the settlement, even of your copyrights were infringed. You have nothing to gain from the settlement, and rights to all your work, in perpetuity, to lose. So if you aren't going to file a claim, opt out of the settlement today to protect your rights.

You can out through the form on the settlement Web site , but you don't get any confirmation that you can later use to prove you opted out. So it would be a good idea, as the NWU also recommends, also to send your request in writing (certified mail, return receipt requested) to the settlement claims administrators: The Garden City Group, Inc., P.O. Box 9000 #6250, Merrick, NY 11566-9000. An easy way to generate an opt-out request would be simply to print the filled-in Web form. The deadline is today: midnight EDT today to opt out on the Web, or postmarked today for postal mailing of opt-out requests.

The same goes for works with respect to which you aren't making a claim. You won't get any money for those works from the settlement, but you may forfeit future rights in them unless you explicitly opt out of licensing them. Anyone who isn't opting out of the settlement class entirely should still opt out of the default grant of future rights in all works except those for which you have made a claim. It isn't obvious from the settlement notices that this is necessary, or possible, or how to do it, but Muchnick has provided forms and instructions on how to use them.

So if you aren't making a claim, opt out of the settlement entirely by the end of the day today. If you are making a claim, opt out of giving away future rights in other works by 30 September 2005.

[Addendum, 16 September 2005: More here and here on the view of the proposed settlement from the UK, and its impact on writers outside the USA, from the London Freelance Branch of the National Union of Journalists. According to the Web site for the proposed settlement , "Claimants who live in southern Louisiana or Mississippi, or those authors who can otherwise demonstrate that Katrina precluded their timely filing of claims, will have an extension [from September 30, 2005] until October 31,2005 to file such claims." Oddly, there's no mention of a similar extension of the 12 September 2005 deadline for opting out of the class. It remains unclear to me if the deadline for opting out of granting rights to future use of ones work, or opting out of granting rights in works with respect to whcih a writer does not make a claim for damages, is/was 12 September 2005, 30 September 2005, or (for those affected by Hurricane Katrina) 31 October 2005.]

RIP: Kepler's Bookstore

Of all the places where I've read from and signed copies of my books , there is none of those appearances of which I am more proud than the one on 25 January 1998 at Kepler's Books in Menlo Park, California. Not because of anything I said -- although the audience was one of the best, and had some of the most interesting comments and questions, I've ever faced -- but because it was such a pleasure, and an honor, to be invited to a place of which it could truthfully be said, on its 50th birthday just a few months ago, that Kepler's changed the world .

Today, Kepler's has closed :

Dear Friend of Kepler's,

After 50 years of bookselling in Menlo Park, Kepler's is going out of business. The decision to close our doors has been one of the most difficult in my life. As much as we love what we do and would like to continue another 50 years, we simply cannot. The economic downturn since 2001 has proven to be more than we can rebound from.

I want to share my sorrow with this ending. Kepler's has enjoyed the support of this community from our inception in the 1950s, through both turbulent and joyful times. I feel blessed to have personally served as this community's bookseller for 26 of those years.

In today's political and social climate I would like to be there with you and for you, providing books and writers with varied ideas and provocative opinions, but the constancy of change will not allow it. So, I want to express my heart felt gratitude and appreciation for your support over the years. It has been wonderful.

Sincerely,

Clark Kepler

Those of us who love books have become almost inured to the litany of closings of independent bookstores. But Kepler's wasn't "just another bookstore". My heart goes out to Clark Kepler, and to all the bookstore staff.

[Addendum: KQED-FM Forum on Independent Bookstores , broadcast 7 September 2005, with Clark Kepler, Andy Ross of Cody's Books in Berkeley, Bill Petrocelli of Book Passage in Marin County, and Dave Weich of Powell's Books in Portland, Oregon.]

"On the Frontlines" conference in Berkeley

On The Frontlines: Options for Youth in Times of War

A conference for youth and their allies
22-23 October 2005, Berkeley, CA, USA

The conference Web site and program are stilll under construction, but the topics to be discussed include the draft , conscientious objection , and options for resistance to war . Maxina Ventura of the Radical Family Collective and I have proposed a workshop for young people, parents, and families on the draft, draft registration , and draft resistance.