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.
Hmm...inspired by a chat I had with Cory and Doc a while ago, I've decided to Wiki the 1 Million Free & Legal Music Tracks page. For those of you who don't know what a Wiki is, it's a page or set of pages which can be altered by any visitor to a website.
My hope is that people will responsibly use the opportunity to add cool new free music links to the page as they find them. Hey, who knows, it might even get exciting. Anyway it's all a bit of an experiment at the moment, so I'll be keeping an eye on it just to make sure that it's used and not abused. Seacrest out! [links in original]
A great place to fill your iPod without worrying about that whole Real/Apple mess.
Cory Doctorow, on Siva Vaidhyanathan's new article on using technological "tethers" to force customers into using your products, your whole line of products, and nothing but your products: "It's easy to understand why hardware companies love tethering -- it's a license to screw their locked-in customers out of titanic sums of money -- but that's exactly why smart customers need to reject tethered products."
Dan Gillmor, on his decision to stop purchasing iTunes: "Threats to use copyright law against Real are exactly what you'd expect, unfortunately. Apple wants control over online music, and this is just part of the game.
What we customers want is cross-platform compatibility: standards. What the companies want is lock-in. They may win, but they're only locking me out -- because I won't play by those rules. Which means I've bought my last iTunes Music Store song until Apple starts paying more attention to what its customers want."
Pay attention now, 'cause this story gets kinda complicated.
See, Apple had this product called iPod that lets you listen to music. That sounds like a good idea. But Apple thought it would be better if the iPod could do less. So their engineers pulled a bunch of all-nighters to make sure that the iPod couldn't play just any music a customer might have laying around. They called this DRM. I think that stands for Don't Replay Music.
Now Apple had a competitor called Real. And Real was unhappy that Apple had made its product less useful. So Real's engineers pulled a bunch of all-nighters, so that they could make Apple's product better. They could've spent that time making their own product better, but that would have been a waste after all of the time they had already spent making their own product worse by making it do DRM too.
You still with me? Good.
Okay, so Apple was mighty ticked off that Real had made Apple's product better, without even getting permission or anything. So Apple cried foul. Apple was shocked 'n' saddened that Real was trying to improve Apple's product, like those hacker guys are always doing. So Apple drew a line in the sand, and swore to make its own product worse again.
I don't know about you, but I find this all very confusing. I guess I just don't have a head for business.
CNN: "'We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod,' Apple said in a release.
Apple said Thursday it is looking into Real's actions under various laws, including the Digital Copyright Millennium Act (DMCA), which prohibits the manufacture, sale, or distribution of code-breaking devices used to illegally copy software."
Derek Slater: "Along with piracy rhetoric, we now get evil hacker rhetoric. Since when is reverse engineering unethical? Oh right - since the DMCA, which Apple is predictably waving around. Let me remind you that Real was one of the first companies to sue the creator of an interoperating product under the DMCA, so it's not as if they're the innocent defenders of innovation here. This could make for a fine DMCA battle royale, with copyright holders caught in between. Or it could fade away - we'll see."
Ernie Miller: "As if being a hacker is bad thing. What do you call those two guys who built a computer in their garage and started a little computer company named after a fruit?"
ZDNet: "'It is highly likely that Real's Harmony technology will cease to work with current and future iPods,' the company said in its statement."
Writes Fred, "[In] the letter (PDF) threatening copyright litigation over JibJab's animated political parody, 'This Land,' Ludlow's lawyer goes out of his way to attack JibJab for copying 'the entire melody, harmony, rhythm and structure of the [sic] Mr. Guthrie's song.'
Er, sorry there Ludlow, but actually, the entire melody, harmony, rhythm, and structure of 'This Land is Your Land' doesn't belong to you. And I'd like to think Mr. Guthrie would never have claimed credit for them, if he were still alive to ask."
"Wouldn't it be great if you could take a dozen of your favorite songs with you," [on your cell phone] Jobs told the crowd.
Wouldn't it, just? For millions of users however this is already a reality. Much like a burglar giving the burgled householder first opportunity to buy their own stuff back, Apple is promising a right we already enjoy as a bonus. An innovation, even...."If people accept [DRM], the logic for the music industry is to apply the wonders of the Internet to the old vinyl-tape-CD upgrade gag, and to start selling different versions of playback rights (want a shedload of one-time play music for tonight's party? we can do that for you)," wrote John Lettice.
Having set the bar so low at 128kbps encoding - and the price at 99 cents per song, so high - one of the premiums that the music industry will now be able to offer is 'fair use'. In order to get the public to accept this proposition they must first forget that they ever had the right to make a copy of music they'd bought. And that's the true significance of today's announcement.
Actually, I don't really agree with all of the Register's analysis, but it is something to consider.
"The 9/11 Commission Report," the final report of the National Commission on Terrorist Attacks Upon the United States, has remained at the top of the best-seller lists at online bookstores since its release last Thursday.
The report is topping the Amazon charts despite being uncopyrightable and freelyavailableon the web. It's one of the of the few types of works left -- works of government authorship -- that enters the modern public domain.
According to the typical copyright story playing in Washington, this publication and its profits for the publisher shouldn't have happened. What would be the incentive to publish a book that anyone else could freely read and even republish? Yet it seems that some people still want to read on bound paper, and a publisher can still make money by being first to market at a reasonable price. Of course the newsworthiness of the event and subject had plenty to do with this story, but it helps show, as do and
Lawrence Lessig's experience with it, that total control isn't the only workable business model for publishers.
I'm at PFIR's "Preventing the Internet Meltdown", where today kicked off with a discussion of intellectual property (the other IP). It was a happy surprise to share the stage with Thane Tierney, of Universal Music Group, who shared our horror at the Induce Act and joined a genuine dialogue about the collision between the Internet and the recording industry. He was willing to think about a world in which the record industry shifts its role from controller and distributor to that of filter. I hope we'll be able to continue that conversation with Thane and others in his business, to move toward a solution that leaves the Internet open to innovation and pays artists and copyright holders.
Also on the panel, Ed Felten commented on the one-way ratchet of copyright legislation; Michael Froomkin called on technologists to spec and build speech-enabling technologies (like Tor); and Carrie Lowe of the ALA called our attention to the copyright-driven inaccessibility of material to libraries and the public they serve. I talked about reclaiming the Internet from amid the copyright-dominated debate in Washington.
Sorry Barbie, it's a free country and everything on this site is protected by the First Amendment right to speak, comment, and parody. So maybe you should give your lawyers a break from suing people for a while. Who knows? Maybe it'll give them some free time to ask you out on a date. Just think off all the shopping you could do on a corporate lawyer's salary! Seriously, does Ken even have a job?
Just in time for the growing controversy over This Land, I stumbled over another article on the district court ruling last week in Korea in which a 26-year-old college student was fined $129,000 for creating political parodies and posting them online. The student's crime? Potentially influencing an election and -- I kid you not -- trying to "get the public interested in politics."
"Satire and jest for parody works may be acceptable, but this parody image went too far in criticizing a specific political party and seemed to have a great influence on the election," the ruling said. "Considering that the image tried to get the public interested in politics, a punishment with a fine is sentenced."
Certainly puts things in perspective. We Americans take a lot for granted when it comes to fair use and free speech. Let's keep it that way.
Michael Froomkin has started a mini-campaign of interest to Copyfight readers: he's collecting Copyright Experiences to help pool knowledge about the kinds of copyright demands that law journal publishers are making of academics. As part of the initiative, he's soliciting model copyright agreements -- the nitty gritty, fine print details that determine whether or not someone like Siva Vaidhyanathan can freely encourage others to copy and share his work.
This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we dont give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, thats all we wanted to do.
When does the movie industry decline to assert its copyright, instead stating that the copying is fair use? When the copying is done by the Bush campaign, of course. From Roger Ebert's column:
Bruce Davis, executive director of the Oscars, replies: "... We are not enthusiastic about clips from our broadcast being used in political ads ... but we've been advised by our attorneys that the clip in the Bush ad is short enough, and oddly enough political enough, to be protected under the fair use doctrine.
"Fair use trumps copyright infringement. So while we're not happy about what we regard as a misappropriation of our material, there doesn't seem to be much that we can do about it beyond grousing in the columns of movie critics, when we get the chance."
So presumably publishing that Oscars clip of Napster creator Shawn Fanning is allowed too...
The core argument: copyright infringement over peer-to-peer networks is a problem for artists -- but you don't solve that problem by killing technological innovation or sending it overseas.
The fundamental problem I have with P2P is that the creators dont get paid for the distribution of their work, and I don't really buy the arguments that this "free" dissemination encourages people to buy CDs, or that it builds a fan base, or that it promotes their live appearances. The hard numbers really don't bear these contentions out. INDUCE, however, attacks the wrong part of the problem by attempting to stop technology in its tracks. As the VCR proved, the MPAA's position in the Betamax case was shortsighted at best, and the current bill proves they and their allies haven't learned anything in the intervening 20 years.
Rather than figure out how to get paid from the technology, Big Content is supporting INDUCE in order to stop the technology from coming to market. This is just stupid. INDUCE isn't going to stop hardware and software developers outside the U.S. from working on new technology and bringing it to market. It is going to stop U.S. developers from participating in this growth, just as it will stop U.S. manufacturers, distributors, and retailers from achieving any share of the profits to be made, or employing the people who perform these functions, and no one else is going to be paid, either.
The NY Post reports that Apple is threatening a lawsuit against upstart music video channel Fuse for ads that parody Apple's silhouettes campaign (Apple Blows Fuse Over Ads). Unlike the happy music listeners in Apple's ads, these ads reportedly feature people doing beer bongs, pole dancing and masturbating. Some iPod owners are reportedly furious as well, which is no surprise considering the rabid devotion strong affection many Mac and iPod owners have for Apple.
Food for thought on the relationship between digital copyright and a functioning democracy:
Seth Finkelstein, arguing that the Induce Act (PDF) is to the Betamax doctrine as the DMCA is to fair use: "The Induce Act may preserve the 'substantial non-infringing use' standard of _Sony_, in the same way the DMCA preserved fair use: only as a very abstract theory, not in practice."
If you can't live with the idea that people might criticise your work, you have no business to be a journalist in the first place. And if you try to abuse copyright to silence criticism, you deserve to be laughed out of court."
Korea Times article reminding us that not everyone has our conception of "fair use" to lose: "The court said in the ruling that everyone has the right to express their opinions by creating works, including parody works, but Shin's work passed a limit and tried to influence politics."
Rick Klau expresses the frustration that more and more of us will feel as the content industry begins to leverage the power it won through the broadcast flag mandate: "I understand NFL's concern about its product. But guess what? I pay them for their product. And I pay DirecTV. And TiVo. At what point have I paid enough people for the privilege of watching right to watch it when I want it?"
Good question. The broadcast flag allows copyright holders to take away your legitimate, personal uses, and they are perfectly capable of using that power to sell these uses back to you. The flag doesn't care about "first sale," "fair use," or any of that other stuff that copyright law traditionally allows. It listens to the signal embedded in a broadcast, not a judge. So you may *never* pay copyright holders enough to get reasonable, legal uses of digitally recorded programs. After all, it's not in their interest to stop you from paying -- again...and again...and again.
Fascinating story about an RIAA crackdown on a popular alternative music store selling DJ mixtape CDs (Busting Berry's Music). The music shop was raided, stock taken, and the store's named dragged through the mud. No warning, no cease and desist, the RIAA simply went full bore after the store for selling something (DJ Mixtape CDs) the recording industry praises in other forums. This was not about selling bootlegs or counterfeits. It was a store promoting music. You'd think the RIAA would be a little more supportive.
The owners suspect they were targeted because they broke "streetdate," the day a release is officially to be sold. Stores frequently receive copies on a Saturday when the albums aren't supposed to go on sale until Tuesday. Seems like something the distributors could handle if the labels didn't like it.
Interestingly, the federal copyright charges against the store were dropped. However, the store was still prosecuted for violating a "true name and address" bill that requires the name and address of the CD manufacturer on CDs. Ridiculous. And the RIAA wonders why music sales are doing so lousy. Perhaps taking legal action against music stores and forcing them to close has something to do with it.
Seth Finkelstein writes that the "most chilling" moment from yesterday's hearing on the Induce Act was the moment when Senator Hatch warned that whether or not the bill passes in its present form, "something has to be done" about copyright infringement via peer-to-peer file sharing. It's not the concept of a solution itself that's chilling. It's that Congress appears willing to explore only a certain subset of solutions -- those that pose a threat to technological innovation, the traditional balance in copyright, or both.
Wendy Seltzer responded to the news yesterday that TiVo has been dragged into a battle with Hollywood over the "portability" of recorded television programs with an apropos warning: "Don't be lulled by the copyright industries' claims that 'it won't hurt much.' Ceding to technology mandates gives the entertainment companies a screw they'll just keep tightening."
The Induce Act doesn't propose a technology mandate. But it does propose to extend liability for copyright infringement the only inch that the entertainment industry would need to take a mile. Already, it has emboldened Copyright Office Registrar Marybeth Peters to argue that the Betamax doctrine ought to be abolished, presumably along with the 20 years of innovation it enabled.
Thankfully, the push to "do something" à la Orrin Hatch is facing push back. Evidently recognizing that the Induce Act would eventually come for its members, the Business Software Alliance is backing off from its endorsement of the bill as is. But as Ernest Miller points out, the bill "might never have gotten as far as it has without [BSA's] initial support."
It's not possible to overstate the importance of fighting this bill now, before it gets any further. Seth and Ernie each have had personal experience with battling uphill against misguided copyright law that remains firmly ensconced at the top. Retrograde motion is extremely difficult, and both time and resource-consuming. There aren't very many Seths or Ernies out there. Please, take a few minutes today to tell your representative why the Induce Act is the wrong way to deal with the conflict over P2P neworks. It's not too late to make a difference in this battle. Don't wait until it is.
The flag was supposed to be about indiscriminate online distribution. TiVo is trying to provide a device that allows 10 people within a personal network to copy TiVo-ed shows onto their PCs. It's perfectly secure. It's just not quite constrained enough for the studios.
And Hollywood is asking [pdf] the FCC to make sure that this TiVo functionality never reaches consumers.
This desperate quest for control, using the FCC as an apparently willing tool, will end its first stage next week. The rumor is that Real and MSN have already caved in to the studios. Only TiVo is still fighting.
The flag proceeding has convinced me that FCC is capable of almost anything. That's why it seems important to let FCC know just how hard making rules about IP-enabled services will be.
Professor Crawford is convening a conference on the FCC and the Internet on September 28th; looks fascinating.
Snippet: "The conclusion of the hearing was that everyone needs to go back to the drawing board and redraft the law. Sen. Hatch is adamant that 'something must be done,' so it appears that there is no going back. On the other hand, it seemed that the tech industry representatives had Hatch agreeing with them that the substantial noninfringing uses Betamax doctrine should be codified, which must be scaring the crap out of the RIAA."
Siva Vaidhyanthan in today's Salon, on the Induce Act: "While industry lobbyists swear they would go only after the proprietors of peer-to-peer services, they don't have much credibility. After all, they have already taken the makers of videorecorders and MP3 players to court. Why wouldn't they do all they could to fix other technologies to behave as they wish?"
For a while there, it looked like TiVo could avoid the copyright battles that felled the competition by playing nicely with the content industries. But as this MSNBC Washington Post article shows, sometimes even asking for permission to innovate isn't enough:
Hollywood studios and the National Football League are seeking to block the maker of the popular TiVo television recorder from expanding its service so that users could watch copies of shows and movies on devices outside their homes.
TiVo has an interest in keeping everything secure," said its Washington attorney, James M. Burger. "We are trying to bring innovation to consumers."
But the system alarms the content industry, which promised to roll out more digital programming over free television networks only after insisting that the FCC adopt rules requiring makers of recording devices to certify that they have technologies to prevent mass Internet distribution.
Digital programming is far more appealing for online distribution because the quality does not degrade as it is copied over and over.
TiVo was one of 13 companies that asked the FCC for approval, arguing that its copy-protection system met the requirements. The Motion Picture Association of America, Hollywood's lobbying arm, and the NFL then filed objections to TiVo's plan.
Mike Godwin, policy counsel for Public Knowledge, an advocacy group for consumer digital rights, said the fight highlights the danger of requiring technologies to be approved by government agencies.
"We've always thought that once the FCC got into the role of approving content protection technologies that the content companies would leverage this to use the agency to throttle various technologies," he said.
MIT's Technology Review makes an important point regarding software vs. music/movie copyright infringement (Can Peer-to-Peer Stop Software Piracy?). If you're downloading warez, you never know what you're installing on your system. Could be the game you want, could be a trojan. There are no guarantees. This means that software is better positioned to fight internet infringement.
On its face, offering to sell a piece of software in a forum where users can obtain the same product for free sounds like a futile endeavor. However, the illicit nature and reputation of these networks makes these sales more likely. Heres why: With the possibility for viruses so high when downloading a piece of software from these networks, consumers may be more likely to purchase software from a trusted source. If youre an intellectual property owner, you have to make it as easy to legitimately acquire your product as it is to swipe it, says Garland. People dont care if an MP3 file is Sony sanctioned. But if youre going to do your [finances] with a piece of software, you want to get the real McCoy.
The Competitive Enterprise has released an OpEd critiquing the INDUCE Act, set for hearing tomorrow in the Senate Judiciary Committee:
The INDUCE Act is the latest in a string of fast-tracked Senate proposals designed to give major media players more power tools to attack downloading, duplicating, and exchanging music and video files over the Web. However, this legislation is not confined to person-to-person (P2P) file exchanges: It would affect cable, PC, PDA, satellite TV and radio, photocopying, and other technologies that allow transmission of dataand threaten the emergence of future technologies. Had such a law been in place during the 1970s, we may not have PCs, CDs, and other technologies we now take for granted.
My alma materDuke University has announced a new program where all incoming first-year students will receive iPods for "educational" purposes.
I think this is a great thing and I'm proud that Duke continues to be a leader in instructional technology but consider what the INDUCE Act might have to say about it. After all, Duke knows that students infringe more copyrights before breakfast than most people do all day. Would a reasonable person have known that giving them an iPod would allow more infringement to take place? Now there's a good question for Duke Law School's IP final...
Alan Wexelblat @ Blogbook asks whether calling the recording industry a "cartel" is no longer a slur but instead simply accurate:
Continuing to call the music industry a "business" is to fly in the face of reality. They've already been convicted of collusion and price-fixing (has anyone gotten their settlement check yet? I haven't) and now they're accused of blacklisting. These are the classic actions of a cartel (drugs, crime, oil) that seeks to retain its stranglehold on its chosen domain.
In order for the Cartel to continue to maintain that the P2P nets are illegitimate, they have to prevent those networks/companies from having any arrangements with legitimate companies. It's a lovely Catch-22 you see - since we won't let you have our music legally, any music on your net must ipso facto be illegitimate. Roll out the next round of lawsuits, boys!
We talk a lot here about copyright as the 800-pound gorilla of the Internet, but there are other forces with considerable power to influence its development. One of these is the effort to control access to obscene material online -- to keep what a particular community considers "harmful" away from children. The problem is that on the Internet, no one knows you're a dog, and the server doesn't know you're a child living in a certain community -- unless, of course, it does.
Annalee Newitz has a new post over @ Deep Links pointing out that a ruling in the Nitke v. Ashcroft case that upholds the constitutionality of the contested provisions in the Communications Decency Act (CDA) could lead to what Jonathan Zittrain calls a "zoned" Internet -- one in which an adult would be forced to give up her anonymity in order to access online materials that someone (or some software) considers obscene:
[The Miller test] made sense in the 1970s, when obscene materials were usually books, mail, or magazines -- all of which could be located in a specific geographical region with distinct community standards. But when the CDA proposes to use this same rubric to judge obscenity online, things get a little sticky. What, after all, is a "community" on the Internet? How can a speaker be held liable for disseminating obscene materials when she has no idea who is accessing her website or archive online?
Experts testifying on behalf of the government have argued that community standards can be maintained on the Internet through the pervasive use of geolocation software. Seth Finkelstein has argued on behalf of the plaintiffs that implementing such software is cost-prohibitive and that the software itself is inaccurate. But we may nevertheless be facing a future where we are forced to reveal where we live in order to access websites with content that could be interpreted as obscene in some communities.
As Annalee points out, the Nitke case is about much more than obscenity -- it's about the future of anonymity on the Internet. We'll have a ruling in a few months from a federal court in New York City, but whatever the outcome, both sides will likely push for a Supreme Court showdown. Let's hope that the Court preserves the right to anonymous free speech and keeps decision-making about blocking potentially "obscene" materials in the home rather than the server or ISP.
Audible, the audio e-books site, is making the 9-11 Commission hearings available for download, free. Go Audible. I'd link to the specific page, but you can't.
In order to download the files you have to register with Audible. Okay. Understandable, sell your personal information for Audible's bandwidth. You also have to download Audible's proprietary file organizer. Again, understandable. These requirements are not particularly admirable, but Audible is a business. Even more strange, however, is that in order to download these public domain hearings, you have to agree to Audible's terms and conditions (which I can't provide a direct link to either):
When you "clickout" or otherwise "purchase" (referred to herein, collectively as "Purchase") Audible Content from the Audible Service, Audible grants you a limited, revocable, non-exclusive, non-transferable license to download or stream such Audible Content to your computer and/or your Device(s) solely for your personal non-commercial use. You shall not copy, reproduce, distribute or use the Audible Content in any other manner. You shall not sell, transfer, lease, modify, distribute or publicly perform the Audible Content in any manner and you shall not exploit it commercially. Do not (A) decompile, disassemble, or reverse engineer the Audible Content or attempt to do so; or (B) modify the Audible Content or create any derivative works therefrom. [emphasis in original]
Gosh how I love the way some companies claim dominion over the public domain.
Via Ren Bucholz @ miniLinks, a fascinating article on the UK's digital radio market and the products that will let listeners copy/pause/replay anything they can tune:
More than 20 years after MTV aired "Video Killed the Radio Star," the original broadcast medium is moving to reclaim the cutting edge of technology with music downloads over the radio.
...A digital radio already on the market, the 'Bug' from the UK's Pure Digital, lets users record programs -- including songs that would be flawless except for DJ chatter -- and export them to a computer, where they can be loaded onto a portable music player like Apple's iPod or burned to a disc.
Henry Jenkins has a nice post over at the must-read MIT Technology Review weblog in which he points to a study (PDF) by MIT's Ian Condry comparing/contrasting the way that the record industries in the U.S. and Japan are handling the digital "piracy" problem:
[While] the American industry has responded by seeking legal actions against its own consumers, no such lawsuits have been filed in Japan, where industry leaders are seeking to understand why music fans think it is ok to share music. ... Industry leaders have suggested that the aggressive commodification of music had led a generation to ignore its status as someone's expressive output. They are seeking ways to rebuild consumer loyalty rather than demand customer obedience. This is consistent with general trends in Japanese industry to study fan groups, subcultures, and other consumption communities as, in effect, "petrie dishes" where experimentation and innovation occur.
It seems to me that there's a bit more to the difference in strategy than simply choosing carrot over stick. It's about putting in the effort necessary to understand why people buy rather than "freeload" music. According to Jenkins, Condry argues that the solution to the music industry crisis is "cultural," not legal or economic, and involves "changing the relations between music producers and consumers to emphasize shared interests rather than economic exploitation." I'll be interested to see how Japan's conversation turns out.
If there are no changes in European copyright law, the track [Elvis Presley's That's All Right] will fall into public domain Jan. 1, 2005. Anyone will be able to release it without paying royalties to the owners of the master or the performer's heirs. BMG will start losing a significant piece of its catalog income in Europe.
As "That's All Right" is being hailed by some as the beginning of rock 'n' roll, the implications are that every year after 2005, more recordings that defined the genre will fall into public domain.
Of course, this has the European recording industry in a panic:
Jamieson [executive chairman of British Phonograph Industry] added, "The end of the sound recording copyright on the explosion of British popular music in the late '50s and '60s, not just the Beatles, but many other British artists, is only a short period away. If nothing is done they will suffer loss of income not just for their sales in the U.K. but their sales across the globe."
And Europeans should care about this, why? If the theory justifying copyright is an incentive one, all the artists and recording companies seem to have been properly incentivized. I can safely say that extending copyright for existing recordings is highly unlikely to incentivize the creation of more music in the 1950s and 60s, unless Austin Powers can actually go back in time.
At the recent HOPE conference in New York, my colleague Annalee Newitz spent some time behind the desk at the EFF booth, talking to people about the importance of preserving our traditional rights and freedoms in the digital age. One conference participant asked her to explain the slogan on my personal favorite EFF bumper sticker: "Fair Use Has a Posse." She proceeded to launch into an explanation of the always tricky fair use doctrine, but he stopped her midway.
No, no, he said, I understand fair use. What does "posse" mean?
Fisking is at the 'high end' of blogging spectrum skills. It is a term that has grown out of the blogosphere and, indeed, an art that has been crafted and honed by bloggers...[but all] original work (including online articles) is protected by the law of copyright, which means that only the owner can reproduce that work. Thus, a would-be fisker would find themselves in the position of wanting to criticize words they cannot reproduce. Very difficult.
Fortunately, a fisker can rely on the doctrine of 'fair use' which provides certain circumstances where copyright protected work can be reproduced without permission. One of these circumstances is if the reproduction is for the purposes of 'criticism or review' (and fisking is a compact combination of both disciplines).
Interesting that Carr uses as the basis for understanding old school fair use the "new" online practice of Fisking. It's a good reminder to look at the positive side of what's happening on the Internet with regard to copyright: there is an increasing number of people for whom the question of what constitutes "fair use" is daily (or hourly). New laws and technologies certainly threaten to hoodwink people into believing that fair use on the Internet is tantamount to stealing. On the other hand, direct daily experience with making fair uses of copyrighted material "threatens" the development of new social norms that would provide a much-needed counter-balance to this perspective.
There's some interesting repartee going on in The Library, discussions between Siva Vaidhyanathan and Peter Hirtle of LibraryLaw Blog as to the scope of fair use with respect to nonfiction. Hirtle, applying the traditional fair use factors, explains how a reasonable librarian might conclude copying a whole chapter of a book for school-assigned reading is not fair use. Why not just put a statement in the front of the book giving permission for such uses? The terrible secret, Siva asserts, is that authors typically do not control their works. Publishers do, and publishers don't just apply copyright law but an imaginary, extreme copyright policy. They should be smarter and bolder, given that they are both owner and users of copyrights.
The debate on DRM technology Audible Magic's CopySense continues, with Ed Felten adding his thoughts to Chris Palmer's and Ernest's. Felten wonders if it isn't even possible to defeat CopySense without resorting to encryption. "It may turn out -- and I suspect it would, if independent experts were able to study Audible Magic's technology -- that copyrighted music files could be tweaked in a way that made them undetectable to Audible Magic's algorithms, while still sounding fine to typical human listeners." Ah, the hand is quicker than the eye.
Look who's auctioning: My eyes popped this morning when I saw that eBay has announced that for 180 days it will allow sellers to offer digital downloads, through a new subcategory of its music section. This is one of these ideas that, once you hear it, you wonder why it wasn't done a long time ago. You can find nearly everything else on eBay, so why not? Seems that eBay has only considered digital music verboten for fear of being stuck in the middle of an infringement suit (like that recently filed by Tiffany's). The plan now is that sellers have to warrant that they own the copyright to the recordings being offered. This is in marked contrast to the policy with respect to cds, which are clearly covered by the first sale doctrine. I wonder if this is enough. My suspicion (though I have had many,many great experiences with eBay) is that some sellers will glibly drop in the required language without much concern about whether or not they own copyright. If that happens, I'd expect eBay to pull the plug faster than you can say "Buy it now."
Ernest Miller has annotated the RIAA's letter to the senators supporting the INDUCE act. The letter's on the long side and the comments- some astute, some snarky, make it longer, so there's already an abridged annotated RIAA letter here. I'm still mulling over whether this kind of annotation is an effective form of argument.
His coverage matters to lawyers, techies, copyfighters, and consumers. That is, everyone. Ignore it at your peril. The IICA is one of the most dangerously misguided and malicious pieces of technology legislation to rear its ugly head in the last decade. Ernie's obsessively detailed articles are a powerful indictment of a bad idea. I have only one thing to add to what Ernie is saying: an index.
Here's one more: No matter what we say about the Induce Act, it could still pass. If you don't like that idea, take a few minutes to tell your senator why.
CNN:"The Bush campaign is demanding that the Kerry-Edwards campaign release video of a fundraising event in New York; apparently several celebrities in attendance made off-color anti-Bush jokes on camera. Kerry's camp is refusing, citing the possibility that distributing the footage might constitute a violation of copyright law.
"[Bush campaign manager Ken] Mehlman pledged that the president's campaign would not use the footage. He also said that rules allowing 'fair use' of newsworthy copyrighted material would allow its release for use by the media."
Hrmm...the President seems to have changed his mind about fair use since the days when his budding campaign sent a cease-and-desist letter to the satirical website GWBush.com, memorably argung that "there ought to be limits to freedom."
Copyfight co-author Wendy Seltzer has concluded the below-referenced online colloquy on fair use and academic publishing; below, a snippet on the fair use argument for using Fox News clips to criticize the company's reporting:
Question from Lloyd Davidson, Northwestern Univ.:
Robert Greenwald's new film, Outfoxed: Rupert Murdoch's War on Journalism, will probably attempt to escape copyright infringement lawsuits against his use of significant excerpts from Fox's news programs by claiming that critical and satirical use of such material is protected. Whether you have seen the movie or not, do you think that such a significant use of material could ever have a chance of being protected from copyright infringement suits based on such a defense?
While I haven't seen the film, I'd argue strongly in its favor as protected fair use -- whatever political angle it takes. I'd similarly defend a critic of Michael Moore's who wanted to use excerpts from Fahrenheit 9/11. So long as the excerpts are used in the process of criticism, and not merely gratuitously, they serve a purpose different from that of the original work and don't substitute for the original's commercial market. In today's multimedia environment, you can't effectively criticize newsmakers without using materials in which they may claim copyright. We need to ensure our critics have access to the same tools and technologies that their targets have.
Peter Hirtle, who knows from fair use, responds to my post on Siva Vaidhyanathan's experience with a professor asking to make fair use of his book. He argues for what I'd characterize as the Creative Commons solution: making the author responsible for asserting affirmatively that people have rights to the work:
Vaidhyanathan, Wentworth, and Finkelstein use [Siva's experience] to discuss how hard it is to use fair use; as Larry Lessig has noted, "fair use in America simply means the right to hire a lawyer." There is a second solution to the problem, however. Namely, Siva could have made clear in the book what users could and could not do with the text. [...]
We can, and should, try to change fair use to make it easier to use. But we should also be as explicit as we can on the uses we allow. For example, on my publications I always try to include the following wording: "Permission is granted for nonprofit educational and library duplication and distribution, including but not limited to reserves and coursepacks made by nonprofit or for-profit copyshops." A statement such as this in Siva's book would have made the whole fair use analysis moot.
I say: Go for it. If copyright is broken, rebuild it with your explicit instructions. And obviously, choose the kind of publishers that embrace such reconstruction.
Larry Lessig today brings us a little variety in perspective,: a Hollywood publication -- Variety, no less -- explaining the difference between stealing copyrighted material and making fair use of it:
If Greenwald's use of Fox's content is "fair use" -- as we believe it plainly is -- then it is no more "stealing" than walking across a sidewalk in front of a neighbor's home is trespassing on the neighbor's property.
Copyright is property, but like all property, the rights it grants are limited. "Fair use" is one such limit, constitutionally compelled, giving critics such as Greenwald the right to use a limited amount of copyrighted material without asking permission first.
Democracy depends upon such criticism -- especially as the owners of our culture become fewer in number, and the power they exercise, because of media concentration, increases.
"Property rights are as important as the right to free speech," Berman told AVNOnline.com July 6. "For example, if someone broke into your garage and stole your SUV, and put a speaker on the top, and was driving around the neighborhood making some political statement, trying to get your SUV back wouldn't be trying to stifle free speech, it would be you trying to get your property back. If somebody is using your property, you have a right to stop them or receive a license or receive royalties."
That, said EFF Staff Attorney Jason Schultz, is "possibly the most twisted and contorted analogy I have ever heard," saying it shows Acacia and similar companies -- other EFF frivolous patent candidates include Clear Channel, Nintendo, Ideaflood, Firepond, and Acceris -- conflate physical property with dreams of intellectual property.
"There's no question now that an SUV in your garage is something you own. But here there's a real question as to whether Acacia actually invented anything new or simply is claiming monopoly on technology that millions of people use every day to express themselves," Schultz told AVNOnline.com. ..."[Acacia] doesn't want to own just the SUV, [they] want to own every single automobile and stereo system in the world, to use [their] contorted analogy."
Mattel isn't a big fan of free speech -- at least not when it applies to their products. So when Utah artist Tom Forsythe took this photograph of Barbie in a blender as part of a series of critical fine-art Barbie photos, Mattel got pissed. So what did they do to try stop Tom's message? They decided to sue his ass. Usually, a guy like this would have no chance going up against a fleet of corporate lawyers; and from the corporation's perspective, that's the whole point...Luckily for Tom, he convinced some lawyers from the ACLU to step up to and fight his case, and after a long legal battle he was victorious.
Indiana University Press's withdrawal of a scholarly reader on the Anglo-American composer Rebecca Clarke is just the latest example of scholarship bowing to the assertion of copyright claims. The case law on fair use is decidedly murky, but increasingly aggressive assertions of copyright are affecting the willingness of publishers to include any material that asserts a right to "fair use" of copyrighted materials. So just what use are "fair use" provisions in copyright law if presses lack the wherewithal to challenge copyright claimants? Do such cases create a "chilling effect" on scholarship and in academic publishing? What steps can be taken by scholars and other groups interested in copyright law to protect the shrinking arena for fair use? When, indeed, can such claims be asserted?
The RIAA has been touting technologies offered by Audible Magic as the cure for peer-to-peer (P2P) file sharing on university campuses. The company has also been making the rounds of congressional offices in Washington, DC, talking up its technologies as a silver bullet for P2P infringement.
It's critical that universities take steps to educate staff and students about copyright law, as well as to control excessive bandwidth usage. At the same time, it's important that universities are not sold expensive, ineffective solutions simply to appease the public relations needs of the RIAA. My EFF colleague Chris Palmertook a close look at how Audible Magic's "filtering" technology works and argues that it's no silver bullet.
"Session encryption for file transfers based on ephemeral keys represents a cheap, easily implemented countermeasure that would effectively frustrate Audible Magic's filtering technology," writes Palmer. "Based on publicly available information, it does not appear that this vulnerability can be easily remedied. Should Audible Magic's technology be widely adopted, it is likely that P2P file-sharing applications would be revised to implement encryption. Accordingly, network administrators will want to ask Audible Magic tough questions before investing in the company's technology, lest the investment be rendered worthless by the next P2P 'upgrade.'"
Just below, Donna discusses the new documentary (OutFOXed) that criticizes Fox News' "fair and balanced" news reporting (Fair Use It or Lose It, Part II). One of the main issues is whether or not Fox News will sue for copyright infringement against the fair use commentary of the movie. Well, it looks like Fox just may, according to statements from Fox this afternoon: Outfoxed Rope-a-Dope Begins?:
The illegal copyright infringement actions of moveon.org in cooperation with The New York Times, including 'cutting a deal' not to give Fox News Channel adequate time to react, is unprecedented.
The protagonist is Liane Curtis, who compiled an anthology including excerpts of unpublished work by Anglo-American composer Rebecca Clarke for publication by Indiana University Press. The copyright to this work is held by Christopher Johnson of Oxford University Press, and he accuses Curtis of violating it by using unauthorized excerpts. Ms. Curtis disagrees, arguing that the use is fair -- but her publisher simply doesn't have the resources to back her up in court.
The problem isn't that Ms. Curtis should be able to use any copyrighted materials she chooses -- she may indeed have violated Mr. Johnson's copyrights. It's that without sufficient funds or friends of the pro bono persuasion, there isn't any contest. The threat of a lawsuit is alone adequate to decide the "case" in favor of the copyright holder. This means that even (or especially) in academic publishing, the bottom line is the bottom line -- because, as the Indiana press music editor puts it, "No one has $11-million to test the gray areas."
Sigh. We've seen this scenario play out in a number of different arenas, but it's especially sad to see it happen in academia.
Rob Heverly is starting a collection of strange and/or absurd copyright claims (Strange Copyright Claims). One such claim was found in a disclaimer at the bottom of a website "This material may not be published, broadcast, rewritten or redistributed." Well, the fact that it was already on a website indicates it was published.
Anyway, Heverly isn't sure what he'll do with the collection, but he is asking people to send him more examples of bizarre copyright claims.
Where will the story go next? Despite early indications to the contrary, there's a possibility that Fox will still sue.
Larry's post subtly suggests that a lawsuit might not be such a bad result. "As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium -- now liberated by digital technology -- is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first."
In other words, if Fox sues, a court would have the opportunity to create meaningful breathing space for this kind of speech -- buttressing the (fragile) fair-use defense of future Robert Greenwalds/Michael Moores.
The unstoppable Ernest Miller has already posted a response that takes the thinking a step further. "[Why] use copyright law if there are other means to prevent the making of these sorts of films?" he asks, pointing out that with the broadcast flag mandate in force, "using such clips [would be] significantly more difficult (and expensive)." On the other hand, if a film does get made, there are plenty of avenues for distribution that bypass the traditional points of control -- e.g., "broadcatching." The law is only one front in the battle for fair use.
Where does this leave the average copyfighter looking to support fair use and the freedoms it allows? Two suggestions:
Forward and/or link to Boynton's piece. It's one of the better articles for articulating the connection between fair use, the First Amendment, and a functioning democracy.
As Larry advises, see the film. Encourage others to see it. If more of us don't practice/experience/celebrate our "particularly American" freedoms, we won't notice when they finally slip out of our grasp.
After all, you have other automakers, such as BMW, offering digital music for car stereos but through a safe, DRM'd product...Clearly, offering wireless transfers of non-DRM'd music is begging for piracy.
Isn't that what Ford is trying to do, "sneak" P2P into its cars? Indeed, Ford should know better; check out the first comment on the article (I'm not making this up):
He he, this might be the start of those P2P highway networks we've already mentionned ;)
Or how about this post on Boing Boing by the notorious Cory Doctorow (WiFi car-stereos):
A new generation of WiFi-equipped in-car MP3 players is shipping. The possibilities are endless -- imagine a traffic-jam-area file-sharing/streaming net...
...Clearly, however, Omnifi Media knows that its consumers are writing apps letting people upload music from its players: Doctorow's Car Audio Paaaartay!
Yesterday's NY Times' Circuits section had a great article about the impediments of DRM and the DMCA for those who legitimately own DVDs (Whose DVD? A Debate Over Copies). One example used is of a couple who take copies of their large (expensive - lots of money sent to Hollywood already) DVD collection when they travel on their boat. The ability to copy saves hauling the DVDs back and forth and the consequent risk of loss, damage or theft. Well, we may not all own boats in Bermuda, but we can all sympathesize with the couple who have no intention of harming Hollywood.
The story publishes the counter arguments:
The Federal District Court judge in one case, Susan Illston of San Francisco, was unswayed by arguments that users of the company's products did not routinely engage in piracy or otherwise damage the market for DVD movies. "It is the technology itself at issue, not the uses to which the copyrighted material may be put," she wrote in her opinion.
That sounds persuasive. Not.
It is stories like these that will eventually undermine Hollywood's desparate attacks on consumers.
According to the Guardian Unlimited, Bertelsmann BMG will begin offering three flavors of CDs to its German customers: an "anti-piracy" CD with no frills (only title and information on the disc) for 9.99 Euros, a regular version for 12.99 Euros, and a "luxury" version with additional features for 17.99 Euros.
Maarten Steinkamp, the head of the label in Germany, said the "anti-piracy" CD will look exactly like the one burned at home -- essentially a bootleg-style version of the CD. He added that it would be "absurd" to keep sticking "Don't Steal Music" labels on albums. "It would be better for us to write, 'Thanks a lot for buying something from us,'" he said.
It's tough to imagine this scenario happening in the U.S., where we need legislation to get the record companies to put warnings on copy-protected CDs to let the public know that the CDs have been hobbled, and are therefore worth...well, less.
Larry Lessig yesterday called the IICA/Induce Act a "lawyer employment act," arguing that it will "force technologists into court before they get to enter the marketplace and "shift responsibility for striking the balance in copyright law from Congress to unelected federal judges."
Ford has a new product that would give Induce Act-wielding lawyers plenty to do: the 2004 Lincoln Aviator SUV -- a car with built-in WiFi technology. This article from the Detroit Free Press reads as pure inducement:
One of the great frustrations with the vast amount of digital music many of us now have stored on our computers is not being able to take it with us easily when we're on the road.
What we do today is burn CDs -- endless numbers of them. It's time consuming, and we never seem to have that one new song we really want.
But now I've seen the solution: a WiFi vehicle.
So the automobile industry is finally out on the dance floor for the MP3 revolution, after many years of watching demurely from the side lines. The WiFi vehicle has made it to the marketplace, but just barely. Question for Senator Hatch: Do we really want a federal judge deciding whether or not it gets to stay or go home?
They're looking for law students, prior art searchers, patent attorneys, and technologists interested in helping bust the patents. Of course, if you have examples of prior art, you can submit that too. And if you're affected by the patent, you can can donate some cash or sign up for updates.
I was honored recently to attend a private book reading by Siva Vaidhyanathan and Larry Lessig at Stanford. Both spoke at length about the future of fair use, revealing a schism in perspective: Siva is generally more hopeful, Larry characteristically pessimistic. Siva suggested that society and the court system might eventually have more promising answers to the current conflicts over copyright; Larry, meanwhile, argued that "fair use is the right to hire a lawyer."
Today, Siva has a sad tale suggesting that most people have begun to agree with Larry -- and worse, that society's gatekeepers of fair use -- librarians, educators, school administrators -- are letting it happen.
The story in a nutshell: a professor at a Northeastern college asked Siva for permission to distribute a copy of a chapter of Anarchist in the Library. "Of course," Siva replied, adding that he really ought not to have asked. The professor responded by forwarding to Siva a note from the college librarian, which warns firmly that "educational purpose is only one of the four determining factors, and that the courts have weighted one of them, the impact on the potential market, heavily in recent cases." Siva, horrified, runs the use of the book chapter through the four-factor test to show that the professor has a slam-dunk "case."
"Does that mean that some silly copyright holder might sue anyway? Sure! [...]
This is the problem with fair use: It is a gamble. If you were confident that the copyright holder would not care or would not bother for fear of bad publicity, then you could go ahead and use the material as the law intended you to do. But we have all been taught that copyright holders are vultures out for a quick and easy meal. This is not always true.
But if we don't make a stand against vultures we might as well be waiting around to become carrion.
[The] important thing to remember here is that if you follow your librarian's advice and ask permission, you are making this entire fair use calculus irrelevant. Why do we need section 107 at all if educators are just going to cower upon the advice of copyright experts on campus?
It is our duty to push the envelope of fair use. And it is our duty to demand that our institutions back us up when threatened by bullying copyright holders who do not respect values of openness and freedom.
The problem with this, as Siva himself admits, is that hiring a lawyer costs a great deal of money, and paying the possible infringement penalties a lot more than that. It may be our "duty" to stand up to the vultures, but few people, and few schools, can actually afford to do it.
I see four main avenues for attacking the problem:
Fair use it or lose it. This is, I believe, Siva's main point, and it's important: on a personal level, don't give in to the fear-mongering. Don't be the person who asks Siva, Larry, or Cory Doctorow whether you can make fair use of their books.
Use and advocate the use of Creative Commons licenses, not only to make work available but also to help people understand in a tangible way that they are entitled to legitimate uses of creative works.
Fortify the fair use gatekeepers. Provide as many resources as we can for faculty members, librarians, systems administrators, school officials, DMCA-takedown compliance officers, legal counsel, etc., to take a stand against the bullies -- not only when push comes to shove and someone files a lawsuit, but in the small, everyday ways that cumulatively alter our perception of what constitutes fair use.
Support and advocate supporting legislation that seeks to turn back the tide by providing affirmative protection for traditionally legitimate activities.
Four quick pointers on the Inducing Infringements of Copyright Act (a.k.a. the Induce Act), which by extending copyright liability to those who "induce" infringement would give copyright holders an incredibly powerful tool to hamper the development of technologies like the iPod:
USA Today: "Internet search giants Google and Yahoo, chipmaker Intel, Internet service provider Verizon, auctioneer eBay, website operator Cnet Networks, and phone company MCI are among 42 companies and groups who signed a letter that will be delivered Tuesday to bill author Sen. Orrin Hatch, R-Utah, requesting hearings on the issue.
Two copyright bills were passed by a voice vote in late June without hearings, which is why the tech industry is concerned."
The letter itself (emphasis, mine): "By combining (1) a new and separate cause of action for "intentional inducement," (2) a lower civil, rather than higher criminal, standard of liability, and (3) a circumstantially "reasonable" test, [the Induce Act] would seem to ensure that massive and intrusive discovery proceedings, and a jury trial, would await any innovator or investor who introduces to the market a product that some copyright owner, someplace, believes will 'induce' infringement."
Copyfight author Ernest Miller "translating" statements by Senator Hatch's office on the possibility of holding hearings on the bill: "Hearin's? Hearin's? We don't need no stinkin' hearin's. And if we tells you the schedule, how we goin' to sneak the bill through?"
The EFF Action Center, where you can send a letter opposing the bill: "Right now, under the Supreme Court's ruling in Sony v. Universal (the Betamax VCR case), devices like the iPod and CD burners are 100% legal -- not because they aren't sometimes used for infringement, but because they also have legitimate uses. The Court in Sony called these 'substantial non-infringing uses.' This has been the rule in the technology sector for the last 20 years. Billions of dollars and thousands of jobs have depended on it. Industries have blossomed under it. But the Induce Act would end that era of innovation. Don't let this happen on your watch -- tell your Senators to fight the Induce Act!"
The New York Times had an article the other day about the quality of digital music and whether most people will ever notice the difference (From a High-Tech System, Low-Fi Music). Not directly IP related, but buried below the fold was an interesting discussion of the shift from owning music to renting music and the trade-off between that and committing to a medium:
I don't always agree with Dave Winer, but in this instance I couldn't agree more. In the last few years I was there, John Palfrey managed to rekindle, and then to build upon, what makes the Berkman Center for Internet & Society more than just another think tank: its commitment to active research. The Internet isn't an object to be studied from afar. You have to dig your hands into the dirt. Once you're there, you can't help but understand that it's something worth fighting for.
A more hopeful model [for cultural theory and criticism] was proposed [in a recent talk] by Siva Vaidhynathan...He outlined the work of a diverse and lively cadre of economists, sociologists, linguists, anthropologists, ethnomusicologists, communications scholars, lawyers, computer scientists, philosophers, librarians, literary scholars, and historians who work together to explore an emerging set of concerns. These include intellectual property, fair use, the impact of legal and computer codes on cultural practices and production, and what he called "semiotic democracy" -- that is, "citizens' ability to employ the signs and symbols ubiquitous in their environments in manners that they determine," such as the right to make meaning from, read, and revise cultural products.
What distinguishes critical information studies from cultural studies is that its practitioners are committed to both open source scholarship and open communication with members of the public. Rather than obfuscating everyday practices by filtering them through veils of theory, they clarify complex technological and legal structures and demonstrate their cultural implications.
I'm with Derek: just because fellow Copyfight author Ernest Miller has been posting his series on the Inducing Infringements of Copyright Act (IICA, formerly the "INDUCE Act") over at Importance Of... doesn't mean you should miss them.
Here's a single link where you can check them all out. And while you're at it, here are two more posts on the IICA that contribute significantly to the conversation:
Edward Felten's Tech Lobbyists Slow to Respond to Dangerous Bills: "Giving the entertainment industry a veto over new technologies would have two main effects: it would slow the pace of technical innovation, and it would create barriers to entry in the tech markets. Incumbent companies may be perfectly happy to see slower innovation and higher barriers to entry, especially if the entertainment-industry veto contained some kind of grandfather clause, either implicit or explicit, that allowed incumbent products to stay in the market -- as seems likely should such a veto be imposed."
The broadcast flag mandate is part of Hollywood's plan for what it considers the ideal transition to a future with high-definition television (HDTV). The mandate is aimed at locking down use of the high-definition signal so that copyright holders can exert maximum control over content. Unfortunately, that kind of control doesn't recognize the traditional fair uses we make of copyrighted material, including educational uses and good, old-fashioned discussion and criticism (think The Daily Show). In addition, by forcing manufacturers to remove useful recording features from television products and forbidding others, the mandate directly treatens innovation and free competition. As EFF's Seth Schoen put it when the mandate was adopted, "The FCC has decided that the way to get Americans to adopt digital TV is to make it cost more and do less."
EFF's response? Use the time we have left to build broadcast flag-resistant personal video recorders (PVRs) that do more and "cost" less -- at least in the sense that they won't rob us of our current ability to time-shift and lawfully manipulate media.
Spearheaded by fellow Copyfight author Wendy Seltzer, EFF's Digital Television Liberation Project will use these PC-based PVRs as benchmarks, comparing the capabilities of the general-purpose computer to the limited subset of viewing options broadcast flag-compliant devices can offer. "When people see how many more features today's PVR has than next year's, we think they'll be as puzzled as we are by the FCC's choices to 'advance the DTV transition'," says Wendy in the official press release.
So what happens after we figure out how to build these PVRs? We go "open source," creating a user-friendly recipe -- or even an entire cookbook -- and sharing it widely.
Bloomberg is running a pretty long feature on movie piracy, particularly on the internet (Time Warner, Disney, Viacom Lose $3.5 Billion to Film Pirates). The piece is not as skeptical of Hollywood's claims as I would prefer, but it is actually a pretty good summary of many of the issues. I would recommend it for those who haven't been paying close attention to these issues and want to catch up a bit.