Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
He quickly reviews the standard notice-and-takedown procedures, and points out that YouTube (Google) handles hundreds of thousands of these requests in the standard manner. It's not clear why Google refused this takedown request.
The unfortunate consequence of that refusal is that Google now has to be the named defendant in Garcia's suit, rather than an impartial intermediary as it is in other cases. As I noted yesterday, a significant portion of Garcia's claim has to rest on the question of fraudulent action, but Google is not the fraudulent actor here, nor can it possibly produce any evidence related to the interaction between Garcia and the filmmakers prior to the film appearing. Without being able to adjudicate those issues, Garcia's claim becomes a matter of secondary legal theory.
For Google to exercise what Post calls "decision-making discretion" about a case where it is not in possession of key facts is to set itself up as a court for copyright matters. That can only end badly.
A few undisputed facts are relevant here: Garcia is an actor who alleges she was tricked. She believed she was performing in one film ("Desert Warrior") but in fact her performance was dubbed into another film called "Innocence of Muslims." This latter film, on being viewed publicly, caused a controversy and appeared quite insulting to some Muslims even to the point of an imam issuing a fatwa that called for the killing of everyone involved with the film.
Garcia has attempted to have herself removed from the film, and to control reproduction and circulation of the film. As part of that she has tried to get YouTube (Google) to remove copies of the film with her performance in it. Her claim is that she has an independent copyright in her performance. The film's producer has claimed she signed a typical acting waiver, which ought to transfer her rights to the filmmaker. Her counter-claim would have to rest on the notion of being defrauded. If a judge agreed that she had been tricked as to the circumstances of her performance, the waiver could be ruled null and rights in her performance might then revert to her.
Which brings us back to the question of what rights (if any) does Garcia have in how her performance is used? The notion of the existence of such rights has enraged certain commenters (notably Mike Masnick on techdirt) but I am less certain.
What the 9th has said is not "Garcia is correct" but rather it has granted an injunction based on an evaluation that she has a likelihood of succeeding at trial. The injunction requiring Google to remove any copies of the fraudulent film is not dissimilar in my eyes from an injunction requiring removal of a song video by Band A when Band B claims that Band A is passing off its work fraudulently. In the case of a song we have a unified performance in which the myriad of rights are well settled by caselaw. The Garcia case raises the question of whether a film also encompasses a myriad of rights that we normally don't pick apart but in the case of fraud we might need to.
What the Ninth seems to be saying is "let the arguments be made at trial and we'll see." Unlike Masnick I think this is a reasonable way to explore the issue
Apparently this is part of an ongoing row between Francis Gurry, who is now the Director-General, and staffers at WIPO. Gurry, at the time Deputy Director-General, was accused of sexual harassment and "financial improprieties". The accusations were made in anonymous letters, and Gurry sought permission to collect DNA samples that would permit him to out the anonymous whistleblower. The request was denied and so (according to the complaint filed with the International Labour Office Administrative Tribunal) Gurry conspired with one of the WIPO security officers to swipe things like lipstick and dental floss that could then be analyzed for DNA.
The victims of the theft found out - like you do - and Gurry allegedly retaliated. Like you do, if you're a douchebag. The whole matter then got hauled before an internal "Audit and Oversight" division, which promptly decided not to do anything. So here we are with one Ms. Miranda Brown, having been forced to resign from WIPO, bringing the complaint linked above.
This is all sort of car-crash-as-spectator-sport-level hilarious except when you have to keep in mind that these fine specimens of humanity are supposed to be in charge of the international regulation of intellectual property and associated agreements. If half of this is true I wouldn't put them in charge of a kid's lemonade stand.
Karl Bode calls this "DRM" but I'm not sure that's the right term. Whatever you call it, it's the same ploy we also saw back in the days of video game console cartridges of using a hardware or software check to block third-party development of reusable or replacement components. In the single-cup-coffee market these components are called "pods" and Keurig wants to force people to buy its pods rather than the (often cheaper) pods made by other companies.
It's ridiculous, it's anti-competitive, and it hasn't worked any of the other times it's been tried. But that doesn't seem to be stopping Keurig.
In particular, Liberation got some notoriety in Copyfight circles for trying to sue Larry Lessig over fair use. Lessig counter-filed, claiming fair use and seeking damages. Liberation backed down, and even paid a small settlement. Apparently, the label acted without the consent of (and even contrary to the interests of) the band, who blogged that they were upset to find out about the label's actions, and that they approved of fans' use of their song "Lisztomania."
I was pleased to see that the band's statement recognized the "illustrative use of our music for educational purposes" - a clear fair use statement - as well as directly encouraging fans.
we encourage people getting inspired and making their own versions of our songs and videos and posting the result online.
It's almost like artists supported creative expression. How about that. (h/t Mike Masnick on Techdirt, where I saw this first)
Or so claims Ian Sample in the Guardian. He describes how what started as a hoax - create a program that would write a nonsense paper and get it published in academe - has turned into over 100 papers that have had to be retracted. The root of the evil as usual is money: journals charge exorbitant fees to universities for journals in which those same universities pressure researchers to publish. We've talked about this before; until "publish or perish" changes, this sort of scam, rip-off, and gigantic waste of time is going to be the order of the day.
He notes that streaming services such as Spotify appear to be paying more than any other source and that in between the person making the payments and the musicians is this giant Cartel of suck called the record labels and much of what they suck is the money that flows on those streams. Dollars you pay to subscribe to Spotify or Pandora turn into pennies by the time they reach the artist, often delayed by months or years.
Back when I wrote that piece (Nov 2012) I suggested we were still in the earliest infancy of streaming services and we should not be making judgments until we had more use, more time, and more data. If the writers Masnick is pointing to (independent musician Ron Pope and polyphonist Benn Jordan) are typical of where we are now then change and maturation are definitely underway.
Holbrook points out that what he calls PAE's - patent-assertion entities - are often the only way for small businesses, start-ups, or non-profit inventors to get paid for their inventions. If you start from a premise that all patents everywhere are evil and shouldn't exist then I suppose that's a bad thing. But if you believe that people should be able to get compensation for inventions then there needs to be some mechanism to help that. As Holbrook puts it:
[abuses associated with trolls] are not troll problems; they are litigation and patent quality issues. Scapegoating trolls risks disrupting the useful compensatory purpose they serve and may cause unintended consequences in non-troll litigation.
He also notes that the sections of the current proposed anti-troll legislation that were intended to deal with the core issues of patent quality and litigation cost were removed. It's possible the Obama administration could create regulations that affect these important factors, but I'm not holding my breath.
If you've been reading this blog for a while you know that royalties have been a major sticking point for Web radio. Pretty much every form of digital transmission involves royalty payments, but terrestrial broadcast radio has had an historic exception to this requirement, which the CCC and others want changed.
In theory I'm sympathetic to this effort. It's undeniable that people whose music has seen heavy airplay have not been compensated for that play. However, the imposition of royalties on other forms of broadcast/streaming have not served artists well. See the ongoing attempt to drive Pandora out of business by playing royalty shell games. The simple notion that adding royalties to broadcast radio will automatically mean money for artists obscures the vast mechanisms of the Cartel, which have proved adept at extracting money from all and sundry, but have a much worse track record in paying out to anyone. I'd like the CCC - or anyone else who supports adding broadcast royalties - to spell out how this money is going to be different and how it will actually flow to the performers. Once I see that, I'll be more likely to support.
Bucking the latest wave of "the blog is dead" thought posts, LinkedIn is extending the ability to write long-form texts to all users. Originally, this ability was limited to selected "thought leaders" picked by some arcane internal formula. Now anyone will be able to do it. I don't think this is hugely significant, but it is interesting that LinkedIn is taking this move, because it has lots of data on what its users like and want to read. Clearly users are reading those thought leader posts as well as external blog posts that users can already link, and the company wants to keep capturing that Web traffic.
One of the important elements in establishing prior art for challenging patents (a big deal these days as we're dealing with more patent trolls) is showing that the invention disclosed in the patent has been "reduced to practice" at some time prior to the patent's claims. Basically, if you can show you were doing a process or using an invention prior to someone making a patent claim then that claim can be invalidated even if you didn't try to patent the thing you were using.
In Solvay, S.A. v. Honeywell Int'l, Inc. the CAFC has affirmed a judgment that the person who reduces an invention to practice does not have to be the inventor. In fact, the inventor was even in another country and although they applied for a patent there (Russia) the foreign patent application wasn't key to this case so much as the fact that the information was communicated to others (in the US) who then reduced the invention to practice.
This is one reason why people interested in busting patents often search for examples of old running systems from the early days of computing. It doesn't matter who wrote the code behind, say, the PLATO chat system - the existence proof of that system is sufficient to invalidate many claims for modern social software.
Masnick calls this "collusion" which is no doubt correct but I bet you could also apply the term "racketeering" to it. Sadly, I'm not a lawyer because if I was, I'd be out there seeing if a RICO case could be made against ASCAP and its label partners. That would be a damned sight more satisfying than settling with the e-book publishers.
GOG - Good Old Games is an electronic games-sales store. It has a wide variety of titles but is best known for its namesake: older games that long ago left retail shelves and may be hard or impossible to find from other retailers. Even online retailers need a supply of keys, which make up the inventory of an electronic games store, and there's not a lot of incentive to buy and hold onto keys for old games that people may never buy. GOG, though, lives in the long tail.
Geigner points out the ways in which Walker's proposal appears both sensible and even-handed and highlights some of Walker's responses to his critics, whom he calls both "astronomically false" and "gruesomely inaccurate". It's fun to read and I suggest you read both Geigner's summary and Walker's originals.
Walker touches on several of our common themes: what motivates creative people, what is the purpose of copyright and how has its current maximalist implementation strayed from that purpose, etc. To take a page from the economist's book, it's a fundamental error to treat non-rivalous goods the way we treat rivalrous goods. The creation of a process for releasing old games into the public domain after a long time would enrich our society without impoverishing creators.
This comes in response to hearings late last month in front of the House Judiciary Committee, which is apparently considering what it might do to the law. Kemp, following the line of some of the witnesses testifying, believes that Congress should act to strengthen fair use (no duh) but specifics will come in part 2. This column is a review of the current state of the law - primarily the Copyright Act of 1976 - and some of the court cases that have considered it.
Or, you know, they could pressure the Indian government, the US government (in secret, of course) and let more people die. Evil, soulless Mammonites. If I could I'd give every one of them the Midas curse.
Hines is referring to the war of words between those who believe traditional publishing and e-book self-publishing are destined to be arch-nemeses in some kind of cartoon version of reality. Hines, who has been on both sides of the deal himself, believes they are not. It's clear that some people do well in each format, but regardless, the number of people doing well is vanishingly small. And of course Hines reminds us that being a (real) writer is a lot of damned hard work and there are no guarantees of success with either route.
I tend to agree with his notion that the low odds of success, large amount of work required, and high stakes of making wrong choices lead people to a level of passionate partisanship that likely exceeds reason. However, I disagree that the two parties are peaceful co-occupants of the landscape. Publishers have been largely reluctant to embrace upstarts such as online self-publishing and while they may invite some successful self-published authors into their exclusive clubs, they do still tend to project an air of being "the" gatekeepers of what ought to be published. The day I see a major publishing house set up a self-publishing arm (or support someone else's self-publishing enterprise in a major way) then I'll revise my opinion.
Sony has never been a big player and there's certainly no direct line from Adobe's move to Sony's, which had to be under discussion for some time. Sony is sending its stored library of (the e-books you thought you bought but really maybe not) to Kobo. This isn't much of a reprieve for readers since Kobo is also a user of the old DRM that Adobe wants to get rid of.
I got a good breakdown of the situation from a friend who tracks this marketplace; his assessment is that this is mostly going to hurt the smaller participants. B&N and Amazon, the two giants in this space, don't use the Adobe ACS4 that is being retired. Apple doesn't either, but for all the devices Apple sells, they sell remarkably few books and are not a major player from the publishing side. Most others who publish e-books in ePub or PDF format and want DRM use ACS4; likewise, ACS4 is available on devices like Nook where it's used by third-party publishers who want copy-blocking.
It seems that the use of ACS4 is currently required by many library contracts in order for those libraries to be able to lend out ebooks to be read on Nook devices. This means that libraries will be shut out, or will be in situations where they can't lend older books to users with upgraded tablets (and vice versa). Tablet and smartphone users are likely going to be in better shape as they'll be able to purchase new apps that support the new ACS5 standard. People with dedicated devices (other than Kindle) are going to be badly hit. People who can no longer re-download their e-books due to incompatible DRM formats may be a bit annoyed but anecdotal tales seem to show that people treat e-books largely as disposable items so this may not affect a lot of people. People who must rely on assistive devices such as audio readers (for sight-impaired persons) have my sympathy.
I've posted a couple of pieces like this already (Scalzi here, and Molly Crabapple here) but I wanted to visit with Boekbinder's piece for two reasons: one is the core argument she's making and two is what I think we're seeing happen in 2014.
Boekbinder's core message is simple: you should pay for art because you can. Whether it's $5 or something bigger, you should be putting that money down for things you care about. Crowd-funding, she argues, is not a form of charity. It's self-interest:
The internet has given us all the opportunity to be engaged in the creation of new art and new knowledge without the need to be corporations, advertisers, religions, or governments. Every choice we make, every action we take, every thing we pay for actively builds the world around us.
There's nothing wrong with, to use her example, paying $5 for a cup of coffee. By doing so, you're sending a signal that you want there to be more five-dollar cups of coffee in the world and that's what's likely to happen.
But if you drop $5 into sponsoring some artist you exchange "life for life" (her phrase). The money you give to artists to pursue their craft continues to pay back as your life becomes enriched. As a result, she argues, we should pay for art what we can, not what pre-Internet market forces have determined prices should be. Not only should you take a flyer on new projects by unproven names, but you should consider a more investment-like approach: "When you are offered a pay-what-you-want scale try entering a value true to your life" even if that's paying $100 for a book or album. If you're a person who makes $100 an hour and this work will enrich your life for more than that hour, isn't it worth that much to you?
I continue to think AFP was prescient and the fact that we're seeing several pieces that all are saying similar things indicates that this is the way good stuff of all kinds is going to get made in this century.
The Supreme Court in Mayo [...] recognized that "mental processes" and "abstract ideas" (whatever may be the precise definition and relation of these concepts) are excluded from Section 101.
In English what I think that means is that this Judge is writing an opinion citing a SCOTUS precedent that he doesn't think explains anything. Because if the opinion doesn't provide guidance on what might be the definitions of "mental process" or "abstract idea" then how can those concepts be used in a decision by the CAFC that rules on patent validity?
Seriously, guys, WTF? It's like I said "your patent is invalid because hamscrobble berwick" and didn't define that term either. The level of brokenness here is epic and I suppose I should give a nod to Judge Taranto because at least he's willing to say that he doesn't know what Mayo means when it uses those terms. Other judges seem content to go on issuing opinions that claim to be following the Mayo precedent and that therefore those judges understand what those terms meant, which strikes me as highly suspect.
(h/t to Greg Aharonian of PATNEWS for highlighting this decision.)
Salmon points out that each of these attempts is "highbrow" by which he means variously that the journalists are taking their work seriously, all have pretty high price tags, and come with high ambitions. It will be interesting to see which of them is able to make it.
Like Salmon I am most excited about Ezra Klein's attempt to do a more networked, more comprehensive, and less time-dictated version of journalism. For a long time the wisdom has been that news has to be "new" and that electronic media would win because it is faster at delivering the latest new thing. Even broadcast television has its news timeslots and 24-hour news channels have schedules to follow.
But maybe news isn't about newness so much as it is about comprehension and understanding. Another thing the net and electronic media are good at is providing comprehensive - some would say overwhelming - amounts of data. That can take the form of a firehose - just search for a common problem like "my cat pees on the carpet" to see how many different answers you can get, not to mention people wanting to sell you products to solve your problem. Or it can take the form of a collaborative answer. This week I remembered the Challenger disaster and found that Wikipedia has a really detailed and thorough page on the event.
These things both have their uses as well as weaknesses and what Klein seems to be proposing is some of the best of both. He wants a site where incremental updates on developing stories are folded into a larger, more comprehensive, and more explanatory whole. This is an idea that I've seen bounced around since people like Ted Nelson first started talking about using hypertext for news, something I heard from him in 1986 or '87. If Klein can make it work that will be a real advance, in my opinion.
We did not develop this medicine for Indians. We developed it for western patients who can afford it.
I'll just let that quote sit there for a while so you can digest it.
Keep in mind we're not talking about a tech toy, a luxury good, or even something moderately useful like a school text. We're talking about medicine. About things that keep people healthy and alive against illnesses like AIDS or cancer. Diseases don't discriminate, but apparently drug companies do and they're no longer ashamed to say so.
Dear Dr. Dekkers. I sincerely hope that neither you nor anyone you care for is ever afflicted with a life-threatening illness. I particularly hope that your privilege and fortune keep you safe from the misery of having a treatable disease but having the treatment withheld because your socioeconomic status doesn't match corporate profit margin forecasts. I thank you for helping me see which side of this discussion I should be advocating for, and I hope that somehow before you die you allow the light of human compassion to illuminate that miserable shriveled hole where you have apparently locked up your soul.
Holmes Wilson of Fight for the Future wrote to tell me about a new counter-TPP project they are working on. TPP, as I'm sure you remember, is an attempt to rewrite all the world's intellectual property protection laws in secret, with consultation of big companies sometimes and citizen participation never.
Through their Open Media arm they've kicked off an effort to sample the surface temperature of what people on the Internet see as 'copyright priorities'. Some of the choices are pretty stark: "rules made democratically" versus "protection for media conglomerates" - well, no duh. Others are more subtle: do you value "clear and simple rules" more than "free expression"? Where do "privacy safeguards" fall relative to those two?
Of course we realize that creating a truly 21st-century copyright regime should not be an either-or; it must be a both-and. But somewhere along the way we're going to have to make choices and I'd be interested to know how you ranked their alternatives.
As I mentioned earlier this week, what the Court ruled on was not net neutrality itself, but on the power of the FCC to issue such regulations. Rowinski elaborates, pointing out that Verizon raised both First and Fifth Amendment issues and didn't win on those grounds. In fact, the CAFC appears to have agreed that the FCC does have authority to issue regulations much like what net neutrality proponents want, but only for utilities.
The obvious answer is for the FCC to suck it up and reclassify, dealing with the political firestorm that will ensue. That doesn't guarantee that the CAFC (or some other Court) will necessarily agree that the specific regulations are still constitutional in the case of a utility, but it seems like we'd all be much better off.
MPHJ, generally known as the scanner patent troll, owns patents that, it claims, cover any use of scanners to digitize and send documents. Their methods for attempting to enforce these patents have been particularly odious: they hide themselves inside shell companies and misdirection schemes; they mass-mail small companies with obnoxious threats; they try to pressure scanner makers into having the companies that buy scanners pay off MPHJ. They're like the poster children for bad patent enforcement behavior and now that notorious porno-scammers Prenda have gone down in flames MPHJ seems to have the field of disgusting misbehavior largely to themselves.
As such, they've been the target of an FCC investigation and since the FCC has subpoena powers that mere mortals do not posses this has caused a number of documents to come to light. MPHJ has sued the FCC and filed other documents in support of its suit; the FCC has likewise filed documents defending itself against this suit. All these are filtering into the public record, from which the EFF has concluded that these people are festering pustules on the buttocks of the patent system. No, wait, that's my conclusion.
What got me to write about this is that the EFF has finally said something I've been banging on about in this blog for years: the root of the problem is crap patents, which enable bad actors like MPHJ. EFF's blog posts notes that the patents are "too broad and vague" and even admits that the current Congressional legislative proposals "would largely fail to address the underlying problem of patent quality."
The EFF seems to think that because SCOTUS agreed to hear Limelight v Akamai and Nautilus v Biosig this will somehow "get at the heart of the patent quality issue". Yeah, I'm not so sure. Given the hash that SCOTUS made of the Mayo case I am not hopeful.
The classification was designed to exempt then-nascent ISPs from the level of regulation that big broadcasters had to follow. Now it's a decade later and there are effectively no differences between the major ISPs and broadcasters - often they're owned by the same parents. But the FCC's regulations are still on the book, and while the court held that the FCC does have the authority to regulate utilities it can't both exempt the ISPs and also try to regulate them.
The obvious solution is to reclassify ISPs properly and continue to work toward providing a level playing field. But that would take some political courage in the face of heavy industry lobbying and howls from Congressional sock-puppets. So I'm not hopeful. The FCC might also appeal this decision but it's going to lose again if it does so.
And this is why I don't gamble on horses or the stock market: I'd said the odds of the Supreme Court granting cert in this case were slim, but here we go. I haven't seen an arguments schedule but I'd expect this to be calendared for Spring. Aereo did not oppose the cert, which makes some sense since they're getting dragged into court everywhere, but it's a truism that the Supreme Court rarely takes cases just to uphold verdicts. There's a good chance the justices want to revise the case on which Aereo is building its business, which could end them once and for all.
Via Mike Masnick, news that the MPAA has joined the W3C. Of course the Web consortium is free to accept money from whomever it pleases, but if you think this is somehow unconnected to the recent attempt to jam DRM deep into the core of HTML then you're more naive than I expected.
Crabapple's essay is about the "foundational myth" of American meritocracy, but along the way she speaks about her own course from being the working daughter of a lower-middle-class single mom to successful artist who can fly first class. She talks about what she needed to do to get where she is and what sort of myths people seem to have about working artists. Let me just quote one bit:
[B]eing an artist means you're in thrall to cash.
My last art show would have been impossible without the money and network of contacts I'd built. I never could have hauled massive slabs of wood up to my old fifth-floor walk-up—never could have painted them in the lightless room I once shared with three roommates. Without an assistant, I never would have had the time to paint my show. Without sponsorships, I never could have afforded the paint. Sometimes, curators look at the work, and say, "Why didn't you ever paint like that before?" I'd answer, "Because no one gave me enough money to be able to."
Crabapple doesn't discount talent - you need to be good enough to get people to give you money for your stuff - but it's the money that makes the art possible.
It has become increasingly obvious that a move to lock away knowledge because somewhere there might be someone who some day might somehow profit from it is stupid, regressive, a waste of peoples' time and money, and on and on. People of all sorts - not excepting Author's Guild members - benefit from the trove of research materials. If the Author's Guild has concerns (as I do) about giving too much control to one entity doing the digitizing work then it would behoove all of us to negotiate better terms with that entity rather than continuing to drag this thing through the court system.
Sadly, we live in a world where no one speaks for us. The Guild fights for what it thinks its members ought to have, and Google makes the commercial decisions it expects to bring the most benefit. If one or the other of those things happens to be good for the public domain that's at best a fortunate accident.