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.
If regular readers haven't guessed by now, I'm a huge fan of annotations. It is my humble opinion that one of the great annotative projects of all time was Mystery Science Theater 3000 (aka MST3K).
MST3K was (alas, it is now only available on DVD) a wonderfully creative television show (there was also a movie, MST3K - The Movie) with a relatively simple conceit - three characters (a human and two intelligent robots) are mentally tortured (for reasons beyond the bounds of this post) by being forced to watch bad B-grade science fiction movies from the 50s and 60s (MST3K FAQ - The Basics). However, rather than meekly submitting to the torture of terrible acting, atrocious plot lines and cheesy special effects, the three characters retain their "sanity" by providing a running comedic commentary to the movie, while their silhouettes (we see them as seated in a theater) are superimposed on the bottom of the movie image. In general, the commentary is witty, funny and much more entertaining than the original movie production.
Anyway, I came across this cool copyright-related quote from MST3K on 'Botspeak, an MST3K glossary/dictionary:
"Amazing Grace" spiritual song beloved by small-town residents in movies on account of its being royalty-free
Reception and Awards & Installation Banquet (Thursday, July 1 5:30 p.m.)
The Recording Industry Association of America (RIAA) is hosting the banquet reception. Banquet attendees will receive two complimentary drinks and be entered into the drawings for free CDs!
The 2004-05 CDAA Officers and Board of Directors will be installed at the banquet following the presentation of the annual awards.
Now why would the RIAA be wooing California District Attorneys? Could it be in anticipation of them using AB2735 to criminally convict file-sharers for failing to identify themselves when they swap on P2P networks? I mean after all, they did buy two complimentary drinks for each of them and the possibility of wining a free CD!
But let us not worry. I'm sure that these fine public representatives will not let such blatant pandering influence their unfettered prosecutorial discretion and priorities when deciding which crimes to spend our tax dollars fighting in California. No, really.
Orrin Hatch [has] been marked by the nation's geeks as an incipient menace. ... [Hatch] seeks to outlaw file-swapping programs used by people around the world to deal in stolen music and movies. Outlawing plainly criminal activity seems a worthy use of a senator's time. ... [But critics] predict that Hatch's bill would ban digital music players, outlaw home videotaping, and force cats and dogs to sleep together. ...
The bill is a response to a surprising federal court decision last year that makers of file-swapping software are not liable for the thefts committed by users of their products. ... But the bill's critics say it goes way too far. ... But if the Hatch bill is such a threat to technology, why has it garnered such avid support from the computer software industry? The Business Software Alliance, which represents some of the world's biggest software firms, backs the bill. ...
Maybe it's because critics of the Hatch bill have gotten it wrong. ... According to Hatch and one of his staffers, an intellectual property attorney who spoke on background, the bill is designed to complement Betamax, not overturn it. "If this bill had been enacted into law in 1984, the Betamax law [case] would have come out the exact same way," the staffer said.
What Bray seems to miss is that the Court didn't declare Grokster legal because it felt like it. It found it legal because it passed the test in Betamax. Hatch could try to overturn that specific determination of fact, but instead he passed a broad new bill. The bill either overturns the Betamax test or it doesn't outlaw Grokster. He can't have it both ways.
Anyway, you don't need to go on Hatch's staffer's word -- the bill itself is pretty clear. Anyone who "intentionally aids, abets, induces, counsels, or procures" a violation of copyright law is out.
Did Sony intentionally aid or induce copyright infringement? Well, as the dissent noted in Betamax, "Sony's advertisements, at various times, have suggested that Betamax users 'record favorite shows' or 'build a library.' Sony's Betamax advertising has never contained warnings about copyright infringement".
Now maybe Sony didn't mention it because copyright infringement was the furthest thing from their mind. However, it's hard to think of a common-sense reading of the bill that would allow Sony thru but not Grokster. And certainly someone like Bray, who is so quick to note publishing file sharing software is "plainly criminal", wouldn't give Sony much benefit of the doubt. After all, their VCRs are "used by people around the world to deal in stolen" television shows. How much more evil can you get?
From the Trademark Blog via Donna: U.S. District Judge Ronald S.W. Lew showed some backbone in Mattel v. Walking Mountain Productions, awarding the defendant $1,584,089 in attorney's fees and $241,797.09 in costs expended to defend Mattel's suit for copyright infringement (Barbie infringement, to be specific) on grounds of fair use and nominative use. The court found that Mattel's copyright claims were objectively unreasonable and Mattel's attorneys should have known better. As for motivation, "it appears Plaintiff forced Defendant into costly litigation to discourage him from using Barbie's image in his artwork." This is a just result, and I'm looking forward to citing this opinion, but how many artists accused of infringement by a large corporation can afford to incur close to $2 million in attorneys' fees to defend their rights, even if they have a chance of getting it back at the end of the suit?
Terry Fisher: "[The] record industry's response to file sharing -- trying to block the technology altogether -- would generate the worst of all possible results."
Fred von Lohmann: "While we at EFF have been critical of the overbreadth of the Induce Act, some have asked 'what would you suggest that would target P2P while leaving things like the iPod intact?' Answer: It's not a question of more laws, it's a question of new business models."
Kembrew McLeod: "It would be dishonest, and foolish, to suggest that hammering out a compromise palatable to all sides is going to be easy. But the alternative -- to do nothing, or to pass new industry-backed legislation -- would continue to criminalize the everyday behavior of millions. And it would continue to stifle an innovative way to distribute artistic works."
As expected, the Government has moved to dismiss Brewster Kahle and Prelinger Archive's suit challenging the term of copyright and pointing out its effect on our ability to access our culture. Download file. A briefing schedule and date for oral argument will likely be set at an upcoming case management conference.
The Complaint, alleged inducement against Apple, Toshina (who supplied the iPod's hard drive), and CNET (who provided a review of the iPod including instructions on how to move musc files between it and multiple computers), lays out exactly how easy it would be to sue a company for inducement on any of their flagship computer products. We tried to make the complaint as simple as possible but at the same time, substantive enough that it would be difficiult for Apple or any other company to dismiss the case before trial. [For all you lawyers out there, try to think of how you could succeed on a 12(b)(6) or Rule 56 motion].
It's often hard to conceive the potential damage Congress can inflict upon us until too long after the fact (e.g. DMCA), so we hope this will help focus the issue.
Knopf had agreed to let numerous TV outlets interview Clinton over the weekend and Monday before the book' release on Tuesday, and kept the book under wraps, refusing to sell excerpts in advance. A Knopf lawyer cited precedents, but other lawyers indicated AP was safe because it had stuck to the "facts" from the book without extensive verbatim quotes.
I wonder how many of those TV outlets cancelled their Clinton interviews because all the juicy bits in the book had already been revealed at the end of last week. I'm sure the massive publicity rollout has turned into a complete failure.
Favorite first-breakfast jeweler Tiffany & Co. has filed a trademark lawsuit against eBay, claiming that it allows too many counterfeit Tiffany items for auction.
The lawsuit asks that eBay be stopped from listing any "Tiffany" merchandise that is not genuine and for eBay to account for profits it made on the sale of counterfeit Tiffany merchandise or else pay up to $1 million for each type of fake Tiffany merchandise sold on the Web site.
While I can understand Tiffany's outrage that as much as 73 percent of all listed items under their name are fake, the rationale for the suit seems to me increadible overbearing and expansive as a trademark theory, especially since everyone knows that eBay explicitly disclaims any knowledge of whether a particular item is authentic or not when you bid on it.
No one expects newspapers to police their classifieds like this; why should eBay be singled out?
This just in -- The Fourth Circuit Court of Appeals has affirmed in the Costar v. Loopnet case that ISPs and other providers are not liable for direct infringement when their servers passively copy works that have been uploaded, downloaded, or hosted by users if they didn't have knowledge that the works were infringing. Their rationale: copyright infringement requires as active "volitional" act; setting up automatic servers to upload/download/host content is purely passive and does not include any active participation by the hosting company.
This essentially reaffirms the ruling in RTC v. Netcom from 1995 but was a lingering question after the DMCA safe harbors were passed in 1998, especially given copyright law's purported "strict liability" standard. Moreover, the Court found that even the act of Loopnet employees viewing the photogaphs was not violitional enough to be direct infringement. A very good ruling given the realities of computers and networks.
Full Disclosure: My good friend Kurt Opsahl argued the winning side for Loopnet. Way to go Kurt!
Heres the story. Irdial put out a CD full of recordings of shortwave numbers stations called The Conet Project. The numbers stations are broadcast anonymously and more or less everyone acknowledges they have something to do with international espionage. For this reason, the recordings themselves are probably either not covered by copyright at all (in the case of recordings made by the United States government) or are protected by rights that are extremely unlikely to be enforced, since doing so would blow the broadcasters cover. [emphasis, links in original]
Michael Geist with the latest update on copyright reform in Canada, in which Toronto-area MP Sarmite Bulte is quoted as saying that exceptions to copyright law for educational purposes lead only to "freebies."
A posse of fair users at Knowledge Held Hostage, a conference held this past Friday exploring "how concerns about copyright and confusion about or threats regarding fair use [have] derailed (or threatened to derail) important scholarly work."
I've been a huge proponent of the ability of people to annotate and comment upon fixed media for years now. Some technologies that allow this with regard to DVDs has been maturing over the past few years as well, though mostly to permit people to edit out that which they consider offensive. See, Editing DVD Player on Sale Soon. Of course, these technologies are being sued for copyright and trademark violations on behalf of the directors who whine that their droits moral are being infringed upon (though there is little complaint when their work is butchered for the airlines or broadcast in the wee hours of the morning). Recently, congressional hearings were held by Rep. Lamar Smith (R - TX) to consider the issues (Liberals, Conservatives Favor Different Kinds of Censorship). Normally, Rep. Smith is a fan of expansive copyright, but his censorious tendencies made him a fan of this annotating technology with regard to blocking out naughty bits.
Whether you like Microsoft or not, you've got to recognize that they haven't gotten to be the richest company in the world through stupidity. DRM is long-term stupid. It's technology designed to make technological products less useful ("Where do you want to frustrate your customers from doing today?"), and it doesn't work as long as there's one determined attacker in the audience.
The DRM moment has been left behind by science. Publishers were looking for pay-per-use and perfect price discrimination; DRM promised it to them. But DRM was backed by bad science. As long as we live in a world where we can still talk to our friends and still tinker with our tools, DRM is doomed to failure. And when it fails at its primary purpose, it succeeds only at driving potential customers to other sources.
In the short term, DRM may help facilitate lock-in to a particular manufacturer's products. Once you buy a few Microsoft media player tracks, it's easier to keep buying Microsoft. But as the format gets less useful, and the media player's requirements become more restrictive, OGG looks more attractive. Sure, it'll take some effort to get your existing tracks back (you might have to convert, re-purchase, or most likely, find clear versions on the Darket), but once you see the gains in flexibility, you're unlikely to look back. Customers jump ship from DRM, with best customers first over the edge. If Microsoft as technology company doesn't see that, it's just ceding its leadership to someone who does.
Of course, if you don't circumvent the copy protection, there will be no way for you to copy your legitimately purchased music onto an iPod. Ah, format wars at the expense of the consumer. Which DRM monolith with prevail?
"We are actively working with Apple to provide a long-term solution to this issue," a posting on SunnComm's Web site reads. "We encourage you to provide feedback to Apple, requesting they implement a solution that will enable the iPod to support other secure music formats."
Translation: It isn't in Apple's interest to support Microsoft's format or allow people to support iTunes who support Microsoft's format. How else do you explain SunComm begging consumers to do its Apple negotiations for it?
But the format wars are worth it, if it prevents widespread internet piracy:
EMI Music has "been encouraged by the success that SunnComm's MediaMax product has enjoyed," Richard Cottrell, global head of antipiracy for the record label, said in a statement. "We are pleased that SunnComm is developing a product that improves our ability to protect our artists' works, especially during the prerelease phase."
This guy is head of global antipiracy for a record label and he thinks this shift-key-circumvented DRM improves their ability to prevent piracy "especially during the prerelease phase." Man, I want a high paying job like this guy where I don't have to know nothing.
Whoo! Those engineers are thinking outside the box! I've got a better idea though, how about a friggin' hard drive in the BMW that you can transfer songs from the iPod to so that you don't have to remember to bring your iPod with you all the time? Maybe you could even have auto-synch capability so that the BMW's hard drive gets updated each time you do bring the iPod along.
Oh, that's right, the iPod doesn't let users upload songs to another device because iPod owners are nothing but dirty, stinking thieves (who can afford very expensive cars).
A bill in the House of Representatives, HR107, would overturn a major provision of the controversial Digital Millennium Copyright Act of 1998 (PDF), which bars consumers from circumventing encryption on digital media products, even if they only intend to make copies for personal use.
The bill's sponsor, Rep. Rick Boucher (D-Virginia), already has 19 co-sponsors, including powerful House Commerce Committee Chairman Joe Barton (R-Texas). It's unlikely the bill will become law this year, but its proponents see the backing as a good sign.
Of course, the MPAA is still claiming that there is no need for changes to the DMCA as it has no effect on fair use:
"That's just not true," said David Green, vice president and counsel for technology and new media at the Motion Picture Association of America. "The DMCA retains fair use. It doesn't change fair use in any way."
You could ban the printing press and the MPAA would claim there was no effect on free speech.
Lobbyists for record companies and Hollywood movie studios laid out a case against online file-sharing before a group of attorneys general, suggesting the state prosecutors should examine whether such companies are breaking state laws....
One example, whether the distributors of file-sharing software like Kazaa, Grokster and Morpheus do enough to warn users that they could be liable for sharing copyright content....
[Fritz] Attaway [Executive VP and General Counsel for the MPAA] also suggested the state prosecutors might have a case for protecting businesses like movie theaters and video stores from P2P software companies under state unfair competition statues. P2P software providers divert customers, affect jobs, he added.
Why should the attorneys general be looking into this if the ongoing lawsuits (or the INDUCE Act) were going to work in shutting down these services? There is also a hint of desperation in these justifications for getting the AGs involved. Not that it seems they are biting (probably have better things to spend money on than subsidize Hollywood's lawsuit agenda). Undoubtedly, the RIAA and MPAA will also be ramping up their state legislatve agenda, pushing more state legislatures to introduce bills like California's "True Name and Address" Bill.
1. That DRM systems don't work
2. That DRM systems are bad for society
3. That DRM systems are bad for business
4. That DRM systems are bad for artists
5. That DRM is a bad business-move for MSFT
I, of course, agree with all of them except number 5. The problem is that because of Microsoft's monopoly position, creating DRM backed by law can actually be quite a good business move, particularly if you don't think you are in a position to continuously innovate or need some barriers to entry to slow your competitors while you copy their innovative ideas.
For example, AT&T very successfully blocked innovation for a time and thrived, relatively speaking. Once innovation was permitted, AT&T struggled and now it is little more than a famous trademark. And thriving, relatively speaking, is exactly what business leaders want. You never know if a new innovation will really grow the market for your company. It is sort of hard to prove and guarantee. But no one can fault you if you stay on top of a stagnant or slowly growing market. The profits lost due to stifled innovation aren't as obvious as the profits lost due to a business model shift.
C|Net News's Declan McCullagh is the first big J journalist to report on the INDUCE Act (Antipiracy bill targets technology). He explains why the bill wasn't introduced today (it will be introduced next week) and gets confirmation that the bill was approved by the big C copyright industries: "One prominent lawyer for the music industry, who spoke on condition of anonymity, said he had reviewed and approved of an earlier draft of the Induce Act." Several critics of the bill are cited and McCullagh concludes:
Foes of the Induce Act said it would effectively overturn the Supreme Court's 1984 decision in the Sony Corp. v. Universal City Studios case, often referred to as "Betamax." In that 5-4 opinion, the majority said VCRs were legal to sell because they were "capable of substantial noninfringing uses." But the majority stressed that Congress always has the power to enact a law that would lead to a different outcome.
The Protecting Intellectual Rights Against Theft and Expropriation Act of 2004, the PIRATE Act, S. 2237, is an important legislative effort I joined Senator Leahy in sponsoring. This bill will give the Department of Justice the flexible enforcement powers needed to deal with the challenges posed by so-called peer-to-peer filesharing software. The design of this software seems to induce otherwise law-abiding people to violate federal laws relating to copyrights and distribution of pornography. As a result, it has been difficult for the Department to bring the moral force of the government to bear against the widespread piracy induced by this software. The PIRATE Act will ensure that the Department will have the option to impose civil penalties against users of filesharing software who are breaking federal laws, but may not warrant criminal prosecution. [emphasis added]
It's that evil software, seducing law-abiding citizens into degraded lives of pornography and copyright violations. It is criminals like Seth Finkelstein, who induces the otherwise law-abiding to violate the copyrights of censorware producers (INDUCE Act).
What's that old saying? "Give a man a book and he reads for a day. Teach a man to publish and he infringes copyright for a lifetime."
Disappointing, but not unexpected news about the ability of the government to restore copyright to public domain works. In Luck's Music Library v. Ashcroft [PDF] (21 pages), the United States District Court for the District of Columbia upheld the ability of the government to restore copyright for foreign works that had entered the public domain in the US, but were copyrighted in their home country. The case challenged the constitutionality of Section 514 of the Uruguay Round Agreements Act, codified at 17 U.S.C. 104a. The case had been held up until after the Eldred decision. The plaintiffs were a sheet music company and a film restoration company.
This is amazing. Now we're waaaaaay beyond contributory and vicarious theories of liability, which are court-created and pretty darn broad on their own. See Napster 9th Circuit, Aimster 7th Circuit. It's not even clear what the limit to this is -- "aids" could mean that even something that would have been fair use under the Sony Betamax decision is now an illegal inducement.
It looks like our Mr. Von Lohmann is on a roll, breaking the news that we may see yet another harmful piece of copyright legislation rolling down the pike -- perhaps as soon as tomorrow. Dubbed the INDUCE Act, the bill is rumored to add a new section to the Copyright Act that would grant copyright holders a cause of action against those who "induce" infringement.
Even a moment's reflection should make the danger to innovators clear -- you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense. This may also pose First Amendment problems, to the extent a journalist or website publisher might be liable for simply posting information about where infringement tools might be found or how to use them.
It's the Hollings Bill by other means -- an over-reaching new form of indirect liability that would force technology companies of all kinds to "ask permission" before innovating for fear of ruinous litigation if they don't.
Stay tuned for more details here or at Deep Links; I'll post them as soon as I get them.
Or at least, that's what it's trying to do. But there's a not-so-minor complication: TiVo for radio hasn't even been born yet.
This is, of course, just how the RIAA wants it: If you kill or hobble a new technology at/before birth, it can't grow up to threaten the status quo. And the music industry should have veto power over any technology that stands in the way of the past.
Fred von Lohmann has a new piece on this over @ Deep Links, pointing to the EFF/Brennan Center comments (PDF) asking the FCC to deny the music industry its latest request for a tech mandate.
"The RIAA seems to have missed the fact that recording from the radio is perfectly and clearly legal," writes Fred. "Europeans already have car stereos that can time-shift digital radio. We can already record streaming webcasts and analog FM broadcasts. So why is it, exactly, that we should somehow end up with less capable devices for digital radio?"
CNN reports that videogame publishers are getting into the DMCA action (Video game makers sue software firm). The lawsuit apparently involves the anti-circumvention provisions of the DMCA and is targeted at the publisher of Games X Copy, which allows users to backup and/or run PC games from a virtual drive.
My favorite line from the article:
[Doug] Lowenstein [president of the Entertainment Software Association] said the product nevertheless violates copyright law and is "masquerading as a consumer-friendly tool."
You know, it is unfriendly to consumers because it lets them play games from the hard drive, without having to constantly swap CD-Roms and what not. I can't see how any consumer would want to have to deal with the convenience and all.
Not that I want publishers to suffer from piracy, just that I'd wish they'd give their lawyers something better to do than beat a dead horse. Maybe like forming a dance team, or building a soup kitchen to feed their developers.
Really, this is a pretty good idea. However, I seriously question whether professors and educators will support the use of such books in the classroom. Certainly the textbook publishers are going to lobby against it (it's big, big business!). It will also be interesting to see how happy professors are that students are taking notes from class and adding them to a collaborative book (I seem to remember a case along these lines, or maybe it was just a hypothetical - anyway, I don't have time to look it up).
This just in: satellite television giant DirecTV has decided at last to stop suing or threatening to sue people for merely possessing smart card devices. Instead, it will pursue lawsuits against only those people it suspects of actually using the devices to illegally intercept the company's satellite signal.
This comes after months of negotiations with folks at EFF and Stanford's CIS Cyberlaw Clinic, who have been working together to help people defend themselves in the face of settlement demands that made it easier to give up than to fight.
"American innovators and hobbyists shouldn't have to fear legal action merely for possessing new technologies that have many legitimate uses," says Copyfight's own Jason Schultz in the official press release. "We're also pleased that DirecTV has agreed to stop targeting general purpose devices in its campaign and will investigate all substantive claims of innocence."
An extraordinary victory. Kudos to the entire DirecTVDefense team. It is moments like this that keep us going.
"All that is required for evil to triumph," wrote Edmund Burke, "is for good men to do nothing." His words came to mind last week as I read the daily reports from Geneva about the meeting of the standing committee on copyright and related rights of the (WIPO). The meeting was assembled to discuss a draft treaty to "protect" broadcasters and broadcasting signals.
For "protect" read "unprecedented, restrictive and anti-social powers."
Lawrence Lessig and his legal team are asking for your help. Kahle v. Ashcroft is a lawsuit that challenges changes to U.S. copyright law that have created a large class of "orphan works" -- creative works which are out of print and no longer commercially available, but which are still regulated by copyright.
If copyright in the U.S. creates entangling defaults, international copyright adds even more layers of potential incompatibility. Continental European countries recognize moral rights (droit moral); each country specifies the author's exclusive rights and options in its own terms. To be understood by lawyers, the licenses need to speak in these terms of art; to be understood by artists and facilitate international collaborations, the licenses must convey similar meaning in each national instance. The iCommons licenses translate the CC "some rights reserved" concept to help creators through the cross-border copyright muddle.
The conflicting responses reflect two very different visions of the Internet. Those calling for stronger copyright protections, including the Bulte committee, view the Internet primarily as a new distribution channel and method to copy. In their view, new copyright laws are therefore needed to control unsanctioned copying and to restore appropriate levels of compensation.
Those concerned about the effects of greater protections view the Internet primarily as a technology for creating, not a technology for copying. For this group, represented by the millions of Internet users that post messages to newsgroups, maintain blogs, or actively share their work online, the Internet is not a spectator sport. From their perspective, copyright law should support innovative and creative work, not obstruct it.
Computer scientists who want to try to be helpful may say, "Okay, you, the lawyer, are a dangerous idiot, but I have to work with you or be thrown in jail as a Commie Mutant Traitor as happened to Dmitry Sklyarov, so I'll try to address your concerns. You say there is some special property of some bits and we need to know which bits have this property. Fine. We'll attach tags to the files to say what 'Colour' they are." In the copyright realm, that's the "rights management information" solution. It's what they do with DVDs (region coding), VHS tapes (Macrovision), Adobe eBooks ("you may not read this file aloud"), CDs (SCCM), and many other formats. The trouble is, if we (as computer scientists) are intellectually honest about it, we'll have to admit that it can't really work.
The basic gist of the study is that anonymous social networks have fewer effective norms than large, closed networks. For example, child pornography is much more widely available on the open network than the closed network. Presumably, small, closed networks would have even more effective norms.
This is actually good news for copyright holders. It means that if they modify their policies to function in accord with and reinforce certain copynorms, such as the no free riding norm, they will be able to thrive. However, if they continue to fight existing and developing norms, they are likely doomed.
Now part of the whole shtick with Hymn is that even though it strips the iTunes DRM, it leaves your email address and other unique purchasing information in the protected AAC file, ostensibly to symbolically signify that Hymn users aren't trying to spread their fairly-purchased music files to the whole world, but instead to whatever devices they want. I unlocked mine so that I could be sure to play them after I had reformatted my machine. I'm pretty sure Apple has a method of reauthorizing your computer, but that's a hassle. But now the new version of iTunes has recognized that the DRM-stripped M4P files were purchased from iTMS and is telling me my (reformatted, reinstalled) machine isn't authorized to play them.
So, here we have a DRM stripping program that is deliberately designed to encourage copyright compliance yet still enable fair use. What does Apple do? They deliberately make such stripping programs untenable. Gizmodo has a work around for the short term. Of course, the likely long term solution will be for Hymn to strip all information from DRM'd files so that they can't be blocked this way.
The Broadcast Treaty is a proposal from a WIPO Subcommittee that's supposedly about stopping "signal theft." But along the way, this proposal has turned into a huge, convoluted hairball that threatens to make the PC illegal, trash the public domain, break copyleft and put a Broadcast Flag on the Internet. The treaty negotiation process is unbelievably convoluted and hard-to-follow, and they've just wrapped up the latest round in Geneva. But for the first time, a really large group of "civil society" orgs were accredited to attend. [...] This is the first time that a really exhaustive peek inside a WIPO treaty negotiation has ever been published -- get it while it's legal!
Here are the consolidated notes to which Cory refers. If you care about the public's side of the copyright bargain, they're required reading. Print 'em out and take them home.
BoingBoing links to a new "copyright experiment" (Monolith and digital copyright). The software project, called Monolith, takes two digital files and XOR's them (what the author refers to as "munging"), creating a third file. The author calls the two input files "element" and "basis." I think many people might call them "plaintext" and "key." The output file (aka the "monolith" file) would be called the "cryptotext."
The conceit of the concept is that neither the cryptotext nor the key is copyrighted. Thus, it should be legal to distribute both. Otherwise, the author of Monolith claims, everything is copyrighted and nothing can be distributed because there is always a number such that, if XOR'd with another number, will produce a copyrighted work.
This argument is not new and it not terrible interesting. It basically postulates that any encrypted transmission of information is actually not a transmission of information at all.
The First Circuit has issued an opinion discussing how to calculate statutory damages for copyright infringement. Venegas Hernandez v. Sonolux Records. Nos. 03-2014, 03-2015 (First Circuit June 7, 2004). 17 USC Section 504(c) states that a copyright owner can elect to recover statutory damages "For all infringements involved in the action, with respect to one work, for which any infringer is liable individually." The issue is whether that means you multiply the amount of statutory damages by the number of plaintiff's copyrighted songs involved in the suit (here, two songs) or the number of infringing works for which the defendant is liable (here, sixteen infringing albums which each included at least one of the plaintiffs' songs). Answer- the number of infringed works.
Below, a representative snippet of Cory Doctorow's backchannel commentary, in this instance responding to the idea that we need to give additional rights to broadcasters of sporting events:
[ed - yesterday, the issue of sporting events was raised privately by the Canadian delegation in conversation; the Canadians claimed that in some nations, retransmission of sporting events is not covered by copyright and so when people across the border retransmit without permission no remedies are available. He didn't seem to be interested in the argument that those "works" excluded from copyright are deliberately thus: we have decided as a society to exclude them from copyright for policy reasons, and putting them *back* into copyright through a broadcast right seems like a bad way to deliberate the appropriate scope of copyright -cd]
[ed - This morning I thought about this more and realized that even if you buy his argument, it's still pretty weird: why should the guy who *aims a camera* get the copyright monopoly? Why not teams? Venues? Players? -cd]
More meaty material, including transcribed floor testimony on the proposed Broadcasting Treaty by Cory for EFF, Robin Gross for IP Justice, and Jamie Love for the Civil Society Coalition, here.
Later: A few personal observations from Cory @ BoingBoing: "There's no transparency into this process for most of the world. The doors are locked, the minutes are sealed, and you need to be accredited just to sit in the room."
We've done a bit of that before in this forum, but ILAW alum Clancy Ratliff and others have since contributed quite a bit more to the discusssion. Here's a quick overview for those of you who missed the action:
Walking the Walk: Copyfighters and Their Weblog Software: "Now, I don't want this to sound like some group admonishment/harrassment. I'm sure everyone has a good reason why they use non open source software. But that mindset is one of the difficulties of the copyfight: convincing the non-copyfighter that taking the extra effort to use open source or publish open content is worth the effort in helping to build a free culture. So, I hope copyfighters will see that in publishing their discourse on the web that it's important not just to talk the talk, but also to walk the walk."
Defining "Copyfighter": "I define it rather broadly: To me, a copyfighter is someone who engages in conversations on authorship and intellectual property...Moreover, copyfighters look at our current copyright model -- automatic copyright, life + 70 years as soon as the content is put into a fixed medium -- and express some kind of qualm about it; they think it should change in some way."
Open Source Party Line: "Those who've studied the radical tradition might acknowledge that the first sign a cultural or political movement has become genuinely widespread is its politicization in the development of a party line...I might suggest that drawing a party line -- telling people that if they're in favor of open source, they have to use open source software -- is a fine way to get people to say, 'OK. I guess I'm not in favor of open source, then.'"
Alienating Potential Allies: "Yes, I think that generally, people should use open source software and should allow derivative works of their content if possible, but not because someone's a poseur if he or she doesn't do those things, or that it's an all-or-nothing matter."
This thoughtful piece by Robin Cook Peek is a must-read for two reasons: it serves as a useful nutshell description of the battle for open access to scholarly publishing and as a demonstration of its urgency. The news hook is that publishing giant Reed Elsevier has decided to allow authors who publish in its scholarly journals to "self-archive" -- specifically, "to post his version of the final paper on his personal website and on his institution's website." Provided, that is, that the final paper is an MS his own word document or text file rather than HTML or PDF downloaded from the official website.
Peter Suber, a leader in the Open Access movement, calls this "the breakthrough that it seems to be." While it may not provide scholars worldwide with the most ready, optimal access to the final, peer-reviewed piece, it nevertheless remains possible for the dedicated student to find, use and cite these materials. At the same time, however, it falls short of the definition for open access formulated by the Budapest Open Access Initiative, which advocates for the "free availability on the public Internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the Internet itself."
Today, for the first time, someone got upset at us for using one of their images in a 70 word blog post that is sending dozens of people a day to their website. Im trying to explain to the person that well take it down if they want, even though we could use a thumbnail/cropped photo by the fair use provisions as reports, but that we would rather work with them to come to a partnership.
Calacanis is right that blogs have not been hit too hard on the copyright issue so far but that is likely to change - especially for money-making blogs such as Calacanis'. Unfortunately, his solution for the image problem isn't too hot:
As a group we need to set a standard when using other peoples photos. Perhaps we should all agree that we wont use more then 50% of the original photo, cropping out the rest. Nick does this on Fleshbot all the time. Now, granted it is because of the design and to keep the site more work friendly, but I think he is on to a model of fair use for bloggers. Also, we could agree that no photo will be over 300x300 pixels and that any time you use an image you should link back to the source (we do this already, as almost everyone does).
It is clear to me that the basic software concept is a no brainer and even a necessity in our increasingly unwired world. After all, there are many obvious legitimate uses for such a service. Anytime people gather physically such software would be very useful in transfering all sorts of files and information. Papers and notes can be zapped around during meetings, conferences and class. For more examples of non-music related uses, see Social Twister: Pocket Rendezvous: Spawning Connectivity.
However, the music sharing aspect is less impressive to me. I have to disagree with Derek Slater on how interesting it is (WiFi File-Swapping). I don't really see much more than novelty value in being able to join a filesharing network with complete strangers in a physical space. Are you really going to want to share that much with strangers you pass on the street or a local coffeeshop? It is one thing to be able to transfer with someone you've made some connection with, but to promiscuously advertise your files and interests to everyone around? Sure, such software would make fileswapping parties a bit easier, but they're not that hard to set up in the first place. Read on...
Posted over on my blog and on Joe Gratz's blog... you can find the testimony of MaryBeth Peters (PDF), Register of Copyrights, in an oversight hearing this morning before the House Judiciary's subcommittee on Courts, the Internet & IP. A slightly different view of the role of copyright in our society than you usually see here...
WIRED has a good article on the culture of videogame sprite comics (You, Too, Can Be a Comics Whiz). Basically, comic strip artists use pre-existing images from videogames and create comic strips from them. The prime example WIRED provides is Bob and George, which uses images from Megaman videogames. B&G is actually a quite interesting combination of videogame fanfic and comic.
Strangely, while the article discusses the controversy of artists using pre-generated imagery to make comics, there is no mention that such use is not limited to sprite comics. Indeed, "clip art" comic artists have been quite popular outside the sprite world, including such mainstream works as Get Your War On and This Modern World.
Nor is there a mention of the similar use of videogames to make video, one of my favorite art forms, aka machinima. For example, Red vs. Blue uses almost no original imagery in their work (all the action takes place within the videogame Halo), yet surpasses the quality of many mainstream television shows.
Nevertheless, the article does a good job of pointing out the legal limbo these comics, like fanfic, reside in. The game companies refuse or are highly reluctant to license, but they seldom seem in any hurry to go after the works legally - something you don't see much with regard to other content industries. Overall, I think this is a good thing, given the present status of copyright law. Over time I believe that sprite comics and machinima will continue to grow in respect and cultural cache such that companies will encourage their creation.
GrepLaw points to an excellent group of remixed commercials that take familiar sales imagery and turn them into political and social commentary (Commercial Remixes). You can see the commercials here: Commercial Jams. GrepLaw guesses that,
These commercials are very cool, not because I necessarily agree with their leftist viewpoint, but because they are expressed rather well (mostly). Prof. Larry Lessig asks, "does anyone know of great conservative remix culture? Attacks on Kerry? Or liberals?" (remix culture).
Television remains one of our most powerful mediums. Video is and will remain crucial to promulgating memes. This is why video remix culture is a critical element necessary to empower democratic discourse. Of course, the question remains of how to efficiently and effectively distribute these works. Hmmmm ... broadcatching, perhaps?
Contestant: "What is ... how do you increase demand for illicit P2P, Alex."
As been noted on this blog previously, it is currently trivial to get around online music DRM. All one has to do is burn the music to CD (which all the major non-subscription services permit to a greater or lesser extent) and then re-rip the music, without DRM, to the hard drive. Basically, this proves that DRM is not really about hindering piracy, but maintaining control (Why Use DRM If It Doesn't Work?).
Anyway, some record labels are apparently considering means to close this means of copying music, according to a report in C|Net News (Labels to dampen CD burning?). Apparently, burning software would permit you to burn a CD that couldn't then be re-ripped.
Frankly, I think this is truly bizarre.
First, it isn't going to work. Whatever scheme they use will be cracked and/or CD's burned using the scheme will cause all sorts of headaches. Second, if it works for burned online music, why not burn all CDs with that scheme? Third, it penalizes those who purchase online music. Do the labels want legitimate online music services to thrive or not? Illicit filesharing will not decrease one iota and may increase thanks to otherwise legitimate purchasers seeking music without onerous DRM schemes.
The only benefit I see is that the labels won't be liable to consumer lawsuits since online music is licensed, not sold. Of course, those who have "purchased" music legitimately and find their contracts changed such that they don't enjoy the same rights down the line will have no one to blame but themselves.
"A lot of people don't really see stealing cable as a crime," said Kristin Peck, director of public affairs for Cox [Wichita's cable provider].
That raises a good question. Why is it cable theft and not cable sharing? Assuming that the illicit taps into the cable system don't interfere with other's use by degrading the signal or causing frequency interference, why should cable sharing be wrong? If enough people do it (an estimated 15,000 in Wichita, or ~4.5% of the population) shouldn't it be legal? Doesn't the cable company rip people off by charging too much and by charging for channels they don't want or watch? Shouldn't people be allowed to sample, as long as they buy the DVD set later?
Item 1) Below, Donna notes that a recent consultancy report rings the alarm bells about the use of open software platforms on cell phones (Dumb Mobs). If people have the opportunity to run the free services they want on their cellphones, they may be able to avoid paying for similar services. For example, dialing 411 costs money, doing a number lookup via one of dozens of websites is free. The point is, service providers have to lock down the hardware with DRM to make money on the service.
Michael Geist's latest column on copyright law in Canada contains yet another argument for the necessity of Creative Commons licenses: Toronto-area MP Sarmite Bulte is pushing for an interpretation of the law that embraces and codifies permission culture:
Although [Bulte's committee] acknowledges that some work on the Internet is intended to be freely available, the committee recommends the adoption of the narrowest possible definition of publicly available. Its vision of publicly-available includes only those works that are not technologically or password protected and contain an explicit notice that the material can be used without prior payment or permission.
We put a huge amount of resources into punishing and excluding free riders in many parts of society. But is it because they are actually problem, or is it because they piss us off so bad?
My local CSA's trade box was just another good idea: at the pickup site there is a cardboard box you can drop things you don't want (and would most likely waste) and pick out other people's goodies that they didn't want. It had to be a net positive. Then they decided to make it fair and try to exclude the free riders. There's a sign on the box now that says you can only take something out if you put something in. You know, to keep something in the trade box, i guess.
When you think about it, the problem becomes apparent. If you want everything you got that week you either have to exclude yourself from the tradebox, giving up something that possibly no one else want, or give up something which it may turn out no one wanted, and you would have happily eaten. Most painfully, if no one defects from the system, it guarantees that at least one item will go to waste every week. So the tradebox was a great way to reduce waste, until they decided to kick out the free riders, and it became the vector for waste. But at least it's "fair" now.
Food that rots in the box is the co-op's deadweight loss. At some point, guarding the commons to exclude free riders saps more value than it protects. What's more, today's free rider might be tomorrow's donor or innovator, though those who bridle at "free riders" might be more comfortable with "beneficiaries of consumer surplus." In their determination to stop copyright free riders, copyright holders are causing great social harm.
These problems aren't new to copyright. They just show up here more often because technology has driven the marginal cost of the next copy of a copyrighted work near zero, and peer-to-peer lets independent re-distributors shoulder those costs that remain. As a matter of hard costs, the free rider costs the copyright holder and publisher nothing. So long as we can get over the startup hump -- giving creators enough incentive to get the first copy of a work produced -- we should be able to give everybody access to it.
We may not have all the answers to a perfectly functioning copyright commons yet, but it can't be to assume, as the MPAA's copyright "education" does, that "If you haven't paid for it, you've stolen it."
Only a broken system leaves orphan films to rot because the only ones willing to restore them don't hold (and can't find holders of) the necessary bundle of rights.
Gamespot is running a bizarre guest editorial complaining about the used console game market made possible by the First Sale doctrine (Second-Handed Compliment):
You know, Nintendo, Sony, and Microsoft must have a real love/hate relationship with stores that stock used games alongside their new games--stores like Electronics Boutique or GameStop. It's a pretty amazing concept when you stop to think about it. You can go to any number of these retailers and purchase, say, a used Xbox, used accessories, and used games. You can experience all the joys of the machine just the same as someone who bought it new and spent a few more dollars than you, except that you didn't give Microsoft, the game developers, or the game publishers a thin, red cent. [emphasis in original]
Luckily, he doesn't actually advocate repealing the First Sale doctrine, but would prefer that people not take advantage of it. Presumably the author, if or should he go to college, will buy only brand new textbooks and will not sell back the useless ones at the end of the semester. I imagine he also boycotts libraries out of principle.
I guess he doesn't take into account that profit margins for retailers of new games are razor thin. Without used game sales there wouldn't be as many Electronic Boutiques and GameStops. Used merchandise draws in customers who might also be something new when they buy/sell something old. A used market increases the value of the original merchandise. Suddenly, that $50 game looks like only $40 since I know I can sell for $10 when I'm finished with it. Nah ... first sale only hurts content producers.
Why offer technology that empowers people to do cool things when you can hobble it to force them to buy cool things?
So asks a report by Mako Analysis on SymbianOS phones, which are evidently too smart for their own good:
New mobile devices based on a version of the Symbian OS are a serious threat to mobile operator revenue streams, according to consultancy Mako Analysis. Savvy users can use devices running on Symbian's Series 60 operating system (OS) to completely bypass a range of services that are normally charged for by their mobile operator, the UK-based consultancy warned on Monday. While the threat is currently minimal, the loophole has the potential to cause major headaches for operators.
A "savvy user" of our acquaintance responds: "Open handsets let users choose their applications, which have to compete on pure value. Sure, lock-in is nice for sellers -- until buyers bypass the locked-in route altogether. Companies who take the path Mako recommends are just clearing the way for others to listen to their (former) customers."