Donna Wentworth
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About this weblog
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.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Blogbook IP
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyright Readings
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Julian Dibbell
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
James Grimmelmann
Groklaw News
Matt Haughey
Erik J. Heels
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
Joi Ito
Jon Johansen
JD Lasica
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
David Weinberger
Matthew Yglesias

Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
Chief Blogging Officer
Drew Clark
Chris Cohen
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Ben Edelman
Ernie the Attorney
How Appealing
Industry Standard
IP Democracy
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
MIT Tech Review
Paper Chase
Frank Paynter
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

Berkman @ Harvard
Chilling Effects
CIS @ Stanford
Copyright Reform
Creative Commons
Global Internet Proj.
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office


Monthly Archives

September 30, 2004

Free Speech Vindicated in OPG v. Diebold

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Posted by Wendy Seltzer

In a victory for free speech and transparency in electronic voting debates, Judge Jeremy Fogel has ruled that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions. Decision here.

No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright.
The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA’s safe harbor provisions—which were designed to protect ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.

Last October, Diebold threatened dozens of ISPs with lawsuits if they allowed users to post or link to a Diebold email archive documenting flaws in the company's e-voting technology. Online Policy Group, IndyMedia, and two Swarthmore students, Nelson Pavlosky and Luke Smith, didn't want to cave in, so EFF and the Stanford Cyberlaw Clinic sued Diebold on their behalf instead.

Today, that action was vindicated. Judge Fogel ruled that "there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection." He further held that sending claims of copyright infringement to ISPs when their users are not infringing violates the DMCA's Section 512(f) prohibition on "knowingly materially misrepresent[ing]" infringement. Because Diebold "actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations," it was liable to the OPG and Swarthmore student plaintiffs under 512(f).

Along with opening up the e-voting archives, I hope this decision will give new strength and new weapons to other online speakers and ISPs against the chill of aggressive, improper copyright claims.

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Induce Act Stalled

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BSA Steps Back Into the Ring

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...on the Induce Act, and comes out on the right side:

Throughout the ongoing battle over Senator Hatch's controversial Induce Act, the dividing lines have been clear: the RIAA on one side, and the technology and telecommunications industries on the other, with one puzzling exception -- the Business Software Alliance. The BSA did appear at Senator Hatch's initial hearing on the Act, but other than that has been surprisingly quiet in the debate over subsequent drafts of the bill and the effort to defend the Betamax doctrine.

Last night, all of that changed. In a strongly-worded letter [PDF 65k], BSA (along with CSPP and the ITIC) told Senators Hatch and Leahy in no uncertain terms what's wrong with Induce and what any bill that expands copyright liability would need to pass muster.

Phew. Better late than never. But next time, make it sooner.

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Induce Act Rhetoric Kicks Up a Notch

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..or maybe two.

The Washington Times brings us some choice words from Richard Lessner on the Induce Act and its sponsors: "Unfortunately, this misguided legislation's chief sponsor is Utah's Sen. Orrin Hatch, a Republican who should know better and who once aspired to serve on the Supreme Court. Sen. Hatch, sometime songwriter, is close to the music industry and is happy to carry the water for this trial attorney boondoggle."

Meanwhile, the New York Times offers an amusing point/counterpoint exchange between the RIAA's Mitch Bainwol and cyberlaw prof/Yale ISP fellow/broadcast flag waiver/rising blogstar Susan Crawford:

"Napster was shut down because it had a centralized server," [Bainwol] said, referring to the father of peer-to-peer file sharing that was forced to shut down in 2001, and later reopened as a pay service. Soon after Napster's initial collapse came the decentralized peer-to-peer networks that are now at the center of the debate. "These decentralized systems exploit a loophole. They make money on advertising and their business model is based on theft."

While that may be true, opponents of the Induce Act say that the bill's language is so sweeping that many other technologies may be in danger of being caught in its grasp. They argue that innovations as common as the VCR - or Xerox machines or the iPod - would never have come about if their inventors had toiled under the threat that some users might misuse the technology.

"This is not just closing loopholes," said Susan Crawford, a professor of Internet law at the Cardozo School of Law in New York. "They're creating nooses."

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WIPO 2.0, Part II

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Two pieces for those of you following how the Geneva proposal for a smarter and more humane WIPO is being received:

  • Activists Challenge UN Intellectual Property Pact: "'We are not against intellectual property rights, however we are for intellectual property rights that strike the right balance,' said Martin Khor of activist organisation Third World Network" [Stuff NZ].
  • Development Needs 'Override Intellectual Property Protection': "[S]upporters of a 'development agenda' claim that, under pressure from industrialised nations, WIPO continues to give undue weight to strengthening intellectual property rights such as patents, trademarks and copyright, at the expense of the public interest and other means of fostering innovation and creativity" [Financial Times].

Later: Via Cory, running notes from CPTech's Thiru Balasubramaniam, taken from inside the WIPO meeting.

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Father of MP3 Format says DRM is killing the Digital Music Industry

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Posted by Jason Schultz reports the comments of a founder of the MP3 standard, saying what we've all known all along: the number one roadblock to growth in the online music biz is not piracy, but DRM.

"It has slowed the download business for sure, and it's doing the same for the gadget makers," said Karlheinz Brandenburg, director of electronic media technologies at the Fraunhofer Institute in Ilemenau, Germany.

Consumers nowadays can store thousands of songs in a pocket-size device, play music and videos on their mobile phones, and buy albums at the click of a button.

But to their chagrin, a bewildering number of competing playback compression technologies and antipiracy software options determine which songs play on which devices.

Apple Computer, RealNetworks and Sony each have developed proprietary playback and DRM (digital rights management) antipiracy technologies. Songs bought on Apple's iTunes music store can play only on Apple iPods. Ditto for Sony.

The alphabet soup of technologies is meant to prevent fans from rampantly duplicating and transferring songs to others.

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September 29, 2004

God and MGM at Stanford

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Stanford's ominously-named "Information Security" wrote:

If you believe [the DMCA infringement] notice is mistaken, you have the right to provide a counter-notice. For information on what your rights are, see Section 512 of the Copyright Act. It is available at

That code makes it clear that counter-notices are only relevant for "material ... that is removed, or to which access is disabled by the service provider". That is obviously not the case when one is simply notified of an allegation of infringement, so the counter-notice provision seems inapplicable.

Stanford respects the proprietary interests, including copyrights, others have in their original works, and expects the same of its faculty, employees, students and affiliates.

Does it? Stanford orgnized and publicized an orientation-week event ("Frosted Flicks") at which a "digital collage" combining a number of movie trailers and a song was shown. Did Stanford receive permission from each of the movie studios and production companies and record labels involved?

Stanford's CourseWare website provides supplemental material for class, including scanned versions of copyrighted books, thus distributing them to hundreds of students. Stanford is clearly aware of this since before one can download the work one must agree to a notice about copyrights. Did Stanford get permission from the authors and publishing companies involved?

It appears some Stanford dorms have televisions in the lobby which show pay networks like HBO, in front of which large groups congregate. Has Stanford gotten permission for such performances?

If, however, a user subsequently receives a second notice, his or her connection is immediately disabled and the user is merely copied on the Disconnect Request.

This seems like an unreasonable and unfair punishment, considering that a DMCA request contains no actual evidence of infringement and there are no sanctions for filing a false one. It is not hard to imagine this power being abused. But Stanford provides no checks on this power; indeed, it amplifies it by quickly disconnecting the user's Internet connection. What purpose does this serve?

You have no legal liability; you are protected by the DMCA. True, the DMCA does require you take some steps to stop repeat offenders, but it does not require such draconian tactics, merely the enforcement of "a policy that provides for the termination in appropriate circumstances of subscribers ... who are repeat infringers".

I thought Stanford wanted to inspire learning and creativity. As your own law professor Lawrence Lessig notes "creativity always builds on the past". Such a draconian "two complaints and you're out" policy hardly seems conducive to encouraging creativity.

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And More on the PDEA

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Derek Slater: "The bill itself lists many 'findings' about the state of piracy and that it must be counteracted, but there seems to have been no research regarding whether heightened criminal enforcement under lower standards would be beneficial. Much the same can be said for the Pirate Act's allowing the feds to go after infringers as a civil offense. No one at the hearing even thought to compare the war on piracy to the war on drugs. Moreover, on a more concrete level, there's not even the most rudimentary evidence regarding whether these prosecutions and lawsuits would have any practical impact."

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More on IPac

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...from Declan @ CNet:

Geeks now have a political action committee of their own.

Three technology activists, including a Google product manager and an organizer at the Electronic Frontier Foundation, have formed a political action committee that aims to help pro-technology politicians and defeat the ones who want to expand copyright law.

Called IPac, the group is already planning to help out Democrat Brad Carson, who's in a tough race for the U.S. Senate in Oklahoma.

"Our main target is going to be the 2006 election, but during this election cycle, a few good opportunities came up," said IPac's Ren Bucholz, who manages EFF's grassroots activism network. In the last few years, Congress has been increasingly active on intellectual-property topics and is currently considering controversial bills to target file-trading users and products that could "induce" someone to violate copyright law.

Previous Copyfight coverage is here.

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Part of PATRIOT Struck Down

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Off-topic, but absolutely fantastic news: the ACLU just won a case ruling that part of the USA PATRIOT Act is unconstitutional:

U.S. District Judge Victor Marreo ruled in favor of the American Civil Liberties Union, which challenged the power the FBI has to demand confidential financial records from companies that it can obtain without court approval as part of terrorism investigations.

The legislation bars companies and other recipients of these subpoenas from ever revealing that they received the FBI demand for records. Marreo held that this permanent ban was a violation of free speech rights.

In his ruling, Marreo prohibited the Department of Justice and the FBI from issuing special administrative subpoenas, known as national security letters.

Here's a bit more on national security letters under PATRIOT, explaining just how indefensible they are:

Imagine if the FBI could, with only a piece of paper signed by the special agent in charge of your local FBI office, demand detailed information about your private Internet communications directly from your ISP, webmail service, or other communications provider. Imagine that it could do this:

* without court review or approval;
* without you being suspected of a crime; and
* without ever having to tell you that it happened.

Further imagine that with this piece of paper, the FBI could see a wide range of private details, including:

* your basic subscriber records, including your true identity and payment information;
* your Internet Protocol address and the IP address of every Web server you communicate with;
* the identity of anyone using a particular IP address, username, or email adress;
* the email address or username of everyone you email or IM, or who emails or IMs you;
* the time, size in bytes, and duration of each of your communications, and possibly even
* the web address of every website you visit.

Finally, imagine that the FBI could use the same piece of paper to gain access your private credit and financial information - and that your ISP, bank, and any other business from which the FBI gathers your private records is *forever* barred by law from notifying you.

Now stop imagining, and meet the NSL authorized under Section 505 of the USA PATRIOT Act.

Later: Here's the ruling itself.

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PDEA + Induce = Very Bad Law

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Yesterday, the House passed the Piracy Deterrence and Education Act (H.R. 4077) -- a.k.a., the "bad PDEA" (here's a bit about the good one).

Declan McCullagh has a solid piece on what the legislation will mean if it becomes law. But what I haven't seen yet is a discussion about what this means in the context of the push for the Induce Act.

Here's a worst-case scenario: We have a House copyright bill (PDEA) and a Senate copyright bill (Induce). November rolls around, and 'tis the season for appropriations. Someone takes out the scissors and tape, and PDEA and Induce become PDEA+Induce. There's an appropriations bill that looks a little lonely. Suppose we staple PDEA+Induce to the bottom? That way, it'll be sure to sneak by -- because you can't hold back government.

I've pasted a copy of the floor debate on the PDEA below. It's difficult not to get cynical about the way a bill become law; the transcript suggests that there has been very little opposition to the PDEA. At the same time, there are glimmers of hope here and there -- Representative Lamar Smith is careful to distinguish between laws that penalize behavior and those that penalize the technology itself. He even goes so far as to say that peer-to-peer technology "is an essential development of our Nation's high-tech economy."

Here's another reason for hope: it's a brand new PAC to support legislators who will stand up to the entertainment industry on intellectual property issues. It's called IPac, it's nonpartisan, and it aims to promote three core principles:

# Creators of ideas and inventions have the right to be compensated for their work, but not to limit political expression, veto technological innovation, or restrict education and scientific research. [read why]

# Intellectual property laws should be judged by their potential to foster new creativity, as required by the U.S. Constitution. [read why]

# Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits. [read why]

We've been waiting for an effective "Geek PAC" for a long time; I've signed up and am crossing my fingers that IPac will take off. We need many more speedbumps in Congress if we want to stop bills like the PDEA and Induce from driving right on past.

...continue reading.

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A Tax on Innovators

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Fred von Lohmann has yet another cogent, compelling post on the misguided Induce Act, this time explaining why the ACU (PDF) and the National Taxpayer's Union are not fans:

[Let's] call [the Induce Act] what it is: a tax on innovation. Technology companies would find themselves under constant pressure from entertainment industry lawyers waving their newly-minted "inducement" law. This means many great products would be hobbled, and many others would never be built. Less flexible, less useful products means fewer sales, lower revenues. That's a tax on our nation's technology companies, a damper on earnings, a drag on competitiveness.

And all for nothing - this tax won't magically solve the file-sharing dilemma, nor will it put a nickel into the pockets of artists.

That's why the Amercian Conservative Union and National Taxpayer's Union have both joined the long list of public interest and technology industry groups opposing the Induce Act.

I'm a copyright lawyer. I believe in copyright. But copyright has never given an oligopoly of media companies a veto over new technologies.

On that note, EFF today joined forces with Downhill Battle for a new anti-Induce initiative. If you want to make an impact on the debate happening this week in the Senate, do check it out.

Later: Also via Fred, a few numbers to put the RIAA's push for the Induce Act in perspective:

IBM 2002 operating revenues (from annual report) = $81b
Verizon 2002 operating revenues (from annual report) = $67b

Total 2002 annual revenues of motion picture and video industries
(from CBO Report) = $62b
Total 2002 annual revenues of music industry (from CBO Report) = $13b

So IBM's annual revenues are larger than the entire music and motion picture industry ***combined***.

Verizon's revenues alone beat the movie biz.

In addition, Intel's annual revenues are ~$30b (more than 2x the entire music industry).

Q: What gives the movie and music industries the leverage to demand legislation that will levy an innovation "tax" on the technology industry when the tech sector is contributing so much to the economy?

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September 28, 2004

Yet Another Way to Say No

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Posted by the Induce Act, courtesy of the good people @ Public Knowledge.

Later (11:00 a.m. PT): And another, courtesy of the good people at the American Association of Law Libraries:

AALL Action Alert
September 28, 2004

Stop Induce--Mark-up Sept. 30th
Calls/Emails Urgently Needed NOW to Members of the Senate
Judiciary Committee

AALL has opposed S. 2560, the "Inducing Infringement of
Copyrights Act" (Induce Act) since it was introduced by Senate
Judiciary Chairman Orrin Hatch and Ranking Member Patrick Leahy
in June. The bill is strongly supported by Hollywood and the
recording industry because of their concerns about peer-to-peer
(P2P) file-sharing networks which they say are used mainly by
consumers to illegally share copyrighted materials.

If enacted, S. 2560 would make companies and other Internet
service providers (ISPs) liable if their software or technology
"induces" users to violate copyright laws. AALL is a member of a
large, diverse coalition that opposes this bill because we
believe strongly that the solution is not to ban technology
simply because it can be used to “induce” consumers to make
illegal copies. S. 2560 outlaws technology, not bad conduct, and
P2P technology is in fact used for many important legal purposes.
The bill is so broadly drafted that it has many unintended
consequences far beyond targeting those who infringe copyright.

S. 2560 has undergone many revisions, and a substitute bill will
be marked-up this Thursday, Sept. 30th. Please contact your
Senator immediately, by phone or email, if he's listed below as a
member of the Judiciary Committee.

Express your grave concerns about:

1. THE PROCESS. There have been no hearings on what is now the
fourth version of the Induce Act. Rushing a bill that implies a
fundamental realignment of our intellectual property system
through mark-up and to the Senate floor with no hearings is

2. THE SUBSTANCE. If enacted, this bill could constitute the
greatest threat to date to the innovation processes that the
copyright and patent laws were intended to promote.

• The proposed legislation defines “induces” as
simply manufacturing a product or offering a service; therefore
it wrongly targets commerce rather than conduct.

• The narrow exceptions it provides to this
extremely broad definition of inducement are full of loopholes;
therefore it will not provide meaningful protection to legitimate
businesses and services.


Orrin G. Hatch, Chairman (R-UT)
Charles E. Grassley (R-IA)
Arlen Specter (R-PA)
Jon Kyl (R-AZ)
Mike DeWine (R-OH)
Jeff Sessions (R-AL)
Lindsey Graham (R-SC)
Larry Craig (R-ID)
Saxby Chambliss (R-GA)
John Cornyn (R-TX)

Patrick J. Leahy, Ranking Democratic Member (D-VT)
Edward M. Kennedy (D-MA)
Joseph R. Biden, Jr. (D-DE)
Herbert Kohl (D-WI)
Dianne Feinstein (D-CA)
Russell D. Feingold (D-WI)
Charles E. Schumer (D-NY)
Richard J. Durbin (D-IL)
John Edwards (D-NC

If your Senator is listed as a member of the Judiciary Committee,
you'll find a link to his/her email address at

If you prefer to call your Senator's office, the U.S. Capitol
Switchboard is: 202-224-3121

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September 27, 2004

Closing Canada's "Innovation Gap"

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Michael Geist's most recent column on the copyright crisis in Canada kills two birds with one stone, explaining 1.) how current and pending copyright law and policy is threatening innovation, and 2.) what the Canadian government can do to stop it.

The piece dovetails nicely with the announcement last week of the Geneva Declaration on the Future of the World Intellectual Property Organization, which argues that WIPO should help nations do what Professor Geist proposes for Canada: adopt IP law and policy to foster innovation and help humanity rather than merely to promote international "harmony."

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September 25, 2004

Quoth the Nazgul, "Nevermore"

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Via Blogbook, a marvelous Groklaw piece I managed to miss, taking aim at SCO, Disney, and other abusive copyright holders/claimants:
The Nazgul, a Derivative Work of the Intellectual Property of Edgar Allan Poe

If Edgar Allen Poe was alive and thought like SCO, you couldn't write this without the risk of being sued by the venerable Mr. Poe, because he might say, like SCO, if he shared their concept, that we had 'stolen' his plot line. Just think of how much creativity the world would lose if such ideas about copyright were to be adopted. Without a doubt the world would be the poorer for it. Happily, The Raven is in the public domain, which means we can be as creative as we like with Mr. Poe's original work, with delightful results.

For more on the delightful results of remixing culture, check out the new flash piece introducing the Creative Commons sampling license, as well as the shiny new membership page where you can help support the project by becoming a "Commoner."

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Copyright Terms Must Have Limits, Part II

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Thanks to Larry and Joe Gratz, here's the opinion (PDF) in US v. Martignon, in which a district court in the Southern District of New York struck down the anti-bootlegging provision of the copyright act because copyright cannot live forever.

Writes Larry:

The opinion is fantastic. The Court concludes (1) that antibootlegging regulations are "copyright-like" regulations, and thus are within the scope of the Copyright Clause, (2) that this regulation violates the Copyright Clause because it doesn't have a limited term (citing Eldred (sweet justice)) (And remember, the 11th Circuit's case expressly did not consider the limited times argument), and (3) that Congress can't use the Commerce Clause to do what it can't do under the Copyright Clause, so long as the subject matter is "copyright-like."

I have always been a fan of Judge Baer, but never more than today.

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Toward a Gentleman's Agreement on Copyright

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Thanks to a tip from Siva Vaidhyanthan, I just spent some time perusing Elizabeth Townsend's terrific Academic Copyright weblog. Some of you may recall Townsend weighing in on the back-and-forth between Siva and Peter Hirtle on strategies for responding to unnecessary restrictions to fair use. It turns out she's been doing research on a number of issues of interest to copyfighters, including investigating the current state of scholarly access to unpublished works. Two recent posts explore the tension between copyright holders/publishers and academics/librarians/historians:

Copyright and Unpublished Papers - Three Different Approaches reveals that the people in charge of the Mark Twain papers have put everything on microfilm, claiming that this is "publishing" them, so as to prevent the works from entering the public domain after 2003. Remarks Siva, "This is, of course, great evidence in the argument for copyright formalities."

Some Thoughts on the Internet and Society in Relation to Unpublished Works, meanwhile, looks at a paper Peter Hirtle is writing on the "Gentleman's Agreement of 1935" -- "an agreement between librarians and publishers on what was ok to copy without anyone filing infringement lawsuits." The post takes us off the beaten path of the current discussions about copyright, reminding us that access isn't only about making materials available on the Internet: it's also about "continued access to materials with privacy to look, transparent copyright information for materials posted on the Internet and those still remaining soley in archives, and a better fair use scheme that scholars can actually use and depend on, particularly when literary executors DO NOT give permission to quote from materials (this is when it is needed most)."

It's an important point. Those of us who live and breathe the Internet are dazzled by the possibilities for enriching education, knowledge, and creativity, and we tend to talk about glorious futures snuffed out. But what we're aiming to protect is ancient. We have a history of scholarship, knowledge building, and knowledge preservation. We have communities that still understand and respect fair use, both in concept and practice. It's vital that they get a seat at the bargaining table, explaining what the formalities were good for, and why the gentleman's agreement should still hold.

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September 24, 2004

Induce Act 2.0

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Ernest Miller is back from Rathergate with a new IT Conversations audio program on the many alternative drafts of the misguided Induce Act.

Later (4:27 p.m. PT): Just had a visit with the charming Mr. Miller, and he tells me he has a scoop of some kind that he'll soon share, so be sure to stay tuned to Importance Of...

Later #2 (4:45 p.m. PT): ZDNet catches up with Jason/BoingBoing, running a piece on the American Conservative Union's opposition to the Induce Act.

Later #3 (5:00 p.m. PT): Just finshed listening to Induce 2.0. It's among the most informative, interesting conversations about Induce that I've heard. And I've heard many. A must-listen.

Later #4 (Sept. 25): Ernie posts the draft of Induce that the Senate will mark up (PDF), and says it's "more narrowly drafted with carve outs for everything that EFF had in their original mock iPod complaint" but "retains many of the provisions, including the incredibly vague 'reasonable person' standard, as well as other issues."

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Copyright Terms Must Have Limits

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Whaddaya know (reg. req.):

A U.S. law criminalizing the sale of bootleg recordings of live performances is illegal because it doesn't limit the life of a copyright, a judge ruled in the case of a Manhattan man indicted for selling concert tapes.

U.S. District Judge Harold Baer struck down the law, which carries a five-year prison term. He didn't address a related civil statute. U.S. copyright law limits protection of a work to the life of the author plus 70 years, Baer said. The criminal anti-bootlegging act runs afoul of that legal standard because it "grants seemingly perpetual protection to live musical performances," the judge said.


The case is U.S. v. Jean Martignon, 03cr1287, U.S. District Court, Southern District of New York.

Later (Sept. 25): This I didn't know: Larry Lessig worked on this case, and will soon have the scanned opinion posted. The short of it: "It says (1) this is copyright-like, (2) must be under the Copyright clause, and (3) commerce can't supplement. "

Joe Gratz has more on the context, promising still more once the opinion is posted: "In the last notable criminal bootlegging case, United States v. Moghadam (11th Cir. 1999), the court went through some pretty deep constitutional analysis, holding that the statute was enacted under the commerce clause and rejecting Moghadam's appeal that the statute is invalid because it is inconsistent with the Copyright Clause's fixation requirement. Moghadam failed to raise the 'limited times' issue, so the court could not invalidate the law on these grounds, though it seemed inclined to do so."

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September 23, 2004

Permission Culture v. Education

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I find it extremely sad that educators are forced to "plea bargain" with copyright holders over how students can use the Internet to learn. This CBC piece on the battle in Canada over proposed changes to Canada's Copyright Act shows just how the desperate the situation has become. It lays out The Rules for what we in the US might call "fair use" for educational purposes -- rules that strike me as profoundly anti-education:

[Students and teachers could use] online material, but [there are] limits:

  • It only applies to students in a program under the authority of an educational institution.
  • Students and teachers would have to cite the source of the web materials used.
  • It excludes online content that has limited access, such as those requiring a password.
  • Institutions would still have to pay for CD-ROMS, licensed software and web courses.

That's right, kids. No unauthorized learning allowed in this precinct. You're not registered to learn at an accredited school, you ain't gonna learn. Keep it on the straight and narrow. And please, guys, document every step you take, and have your parole officer -- I mean, your authorized teacher -- sign at the bottom.

The sad thing is, these are the rules that the educators themselves proposed, in a desperate attempt to carve out some way for students to learn without having access to knowledge metered and sold in chunks, to the highest bidder (or more accurately, wealthiest school district). [Note: it turns out the situation is even more complicated than it appears; see Michael Geist's recent column for details.)

One of the most extraordinary things about the Internet is that it helps bring more people more tools for education more cheaply than ever before. It's just astounding to me that our culture is so concerned with putting the wine back in the bottle that we would rob our own children of access to true -- that is, unfettered, self-guided -- learning.

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The Induce Act - the View From Across the Pond

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Guy Kewney, asking how American copyright extremism/expansionism might influence the rest of the world (emphasis, mine):

If I copy all the stuff off my iPod onto my hard disk, using software written in Taiwan, can I be pretty sure American senators won't try to get economic sanctions against the author on the grounds that he's 'inducing' me to break copyright?

The fact is, of course, that technology changes. People listen to music on Ipods today, not on CDs. Inevitably, sales of CDs go down.

But looking back, when CDs came in, sales of vinyl went down and nobody thought it was right to create laws to protect this. Nobody should try to inhibit the mp3 trend just because it's harder to copy-protect them than it was to prevent CD duplication.

If you think I'm being unreasonable, just remember: when video cassette recorders first appeared, American movie makers sued Sony to prevent them from being made and sold.

The Supreme Court, in 1984, decided that this was stupid. It said there were "significant non-infringing uses" for the technology. By one vote: five judges thought it was fair to let Sony sell VCRs, four thought it wasn't.

The point is, it's insane to imagine that the US can pass laws prohibiting copyright breaches on the Internet unless, somehow, it thinks it can prevent them across the whole of the web. Not just in California, or Utah, where Orrin Hatch resides, or in Afghanistan, but everywhere.

And all based on a completely bogus understanding of how technology advances.

Hatch thinks that Sony versus Universal was the wrong decision and should be reversed. He said so. So if you want his definition of 'a reasonable person' then it's a person who thinks that simply owning a VCR is the same as being 'induced' to break copyright.

You don't want to know what he thinks a broadband connection and a PC could do in the mind of a 'reasonable person'. I just wish I had a comfortable feeling that he wasn't going to try to impose his version of 'reasonable' this side of the Atlantic.

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September 22, 2004

WIPO 2.0: A Declaration for the Future of IP

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There's a battle going on at the World Intellectual Property Organization (WIPO) -- one that could accurately be described as a struggle for the soul of the organization. The central question is whether WIPO will coninue to promote the protection of intellectual property for its own sake -- IP "uber alles" -- or, as a number of developing countries and others are advocating, pursue a range of initiatives that reflect such notions as "balance," "innovation," or "access." What's at stake is much more significant than the harmony or disharmony of IP regulations. As James Boyle points out in his Manifesto on WIPO and the Future of Intellectual Property, WIPO decisions affect everything from the availability and price of AIDS drugs, to the patterns of international development, to the communications architecture of the Internet.

Jamie Love of the Consumer Project on Technology (CPTech) has been working at the front lines of this battle for many years, and today he forwarded a document proposing that WIPO formally adopt a "development agenda" and other reforms to unlock the organization's considerable power to help humanity. The document, called the Geneva Declaration on the Future of the World Intellectual Property Organization, lists a number of problems that a new direction for WIPO could address:

  • Without access to essential medicines, millions suffer and die;
  • Morally repugnant inequality of access to education, knowledge and
    technology undermines development and social cohesion;
  • Anticompetitive practices in the knowledge economy impose enormous
    costs on consumers and retard innovation;
  • Authors, artists and inventors face mounting barriers to follow-on innovation;
  • Concentrated ownership and control of knowledge, technology, biological resources, and culture harm development, diversity, and
    democratic institutions;
  • Technological measures designed to enforce intellectual property rights in digital environments threaten core exceptions in copyright laws for disabled persons, libraries, educators, authors, and consumers, and undermine privacy and freedom;
  • Key mechanisms to compensate and support creative individuals and communities are unfair to both creative persons and consumers;
  • Private interests misappropriate social and public goods, and lock up
    the public domain.

So what's the antidote? According to the declaration, the key is recognizing the opportunities implicit in the "astoundingly promising innovations in information, medical and other essential technologies, as well as in social movements and business models" and resolving to act upon them:

Humanity stands at a crossroads -- a fork in our moral code and a test of our ability to adapt and grow. Will we evaluate, learn and profit from the best of these new ideas and opportunities, or will we respond to the most unimaginative pleas to suppress all of this in favor of intellectually weak, ideologically rigid, and sometimes brutally unfair and inefficient policies?


The proposal for a development agenda has created the first real opportunity to debate the future of WIPO. It is not only an agenda for developing countries. It is an agenda for everyone, North and South. It must move forward. All nations and people must join and expand the debate on the future of WIPO.


Delegations representing the WIPO member states and the WIPO Secretariat have been asked to choose a future. We want a change of direction, new priorities, and better outcomes for humanity. We cannot wait for another generation. It is time to seize the moment and move forward.


Love and other supporters are seeking additional signatures. If you're interested in signing, send an email to CPTech and the good folks there will guide you through the process.

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September 21, 2004

Induce Boosters Send Email to Grammy Members

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In an evident attempt to counter the efforts by a broad coalition of tech companies and public interest organizations (PDF), Downhill Battle, Public Knowledge, and many, many others to the stop the fast-moving Induce Act in its tracks, the National Arts and Recording Academy -- e.g., the group behind The Grammys -- has created its own pro-Induce action alert:

The U.S. Senate is considering the "Inducing Infringement of Copyrights Act of 2004." In the words of its chief Senate sponsor, the bill would allow legal action against "corporations that profit by encouraging children, teenagers and others to commit illegal or criminal acts of copyright infringement." The Act is supported by the Recording Academy and more than twenty other music industry organizations, and has been cosponsored by a bipartisan group of Senators.

For some time now, the only legal recourse to address illegal file sharing has been for the industry to sue individual computer users. This bill provides a good alternative; it puts responsibility in the hands of companies that profit by encouraging illegal use of your intellectual property.

We need your help. Please ask your Senators to support the "Induce Act." This system will send an email to your Senators. If you are a Recording Academy member, a printed copy of your email will also be hand delivered by the Academy's Washington, D.C. office.

It only takes a minute to have your voice heard. To begin, simply type your zip code in the box above. Thanks for your support of artists' rights.

I'm told that this alert just went out to all 20,000 members of the Recording Academy. If you're reading this and haven't yet visited the EFF action center to tell Congress you oppose the Induce Act, now is the time to do it. It's clearly not too late for the public to make an impact on this process.

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Cory on the Creative Archive

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Go on, admit it -- you've been wondering what exactly Mr. Doctrow is up to over there in Jolly Old England. So here's a nice Guardian piece with the scoop on the BBC's Creative Archive, plus Cory himself testifying to the UK government committee that will give the project a thumbs up/thumbs down.

The pith:

The world's media companies are running away from remix culture, locking up their media in increasingly baroque copy-restriction schemes that aim to block playful, sticky-fingered artists from appropriating an image, a beat, a phrase. The works of the commercial entertainment world grow ever less-available to remixers.

...and the pitch:

But not the BBC -- while the private sector strives to keep its material away from remixers, the BBC proposes to do the opposite.

The Creative Archive project will take the very essence of British popular culture -- the material that the United Kingdom spent billions of pounds on in order to entertain, educate and inform itself -- and give it to Britons to extend, to make their own, to interweave with the stories they tell and hear. [...]

[The] audience is awakening to the possibility of mining the culture that surrounds us for the raw materials from which new works may be constructed, from school projects that include clips and music captured from variegated sources to "mash-up" mixes of cleverly combined and juxtaposed music to re-dubbed and re-edited parodies of popular works. This "remix culture" grows by leaps and bounds as the public realises the value of a new kind of folk-art, something that both affirms and defines shared cultural identity by allowing all comers to actively participate in the creation of media, rather than simply eating what we're fed.

There's a lot more out there right now on so-called open content; below, a few recommended articles:

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September 20, 2004

Cutting Patent Claims Back Down to Size

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This just in: Consumers Union, Public Knowledge and EFF are working another angle in the fight against over-broad patents: asking (PDF) the courts to take a narrow view of patent claims. Literally.

The case is Phillips v. AWH Corporation, in which a key issue is, interestingly enough, interpretation of the word "baffle" (the physical kind, not the mental one). The appeals court made a specific request for industry and public opinions on interpreting claims. According to the counsel-of-record for the brief, Joshua Sarnoff, this could be the most important patent case ever decided. "Claim meaning is the name of the game in patent law," says Sarnoff. "[The] Federal Circuit has the chance to lay down clear rules to determine claim meaning that will benefit society."

The joint amicus brief (PDF) takes aim at earlier panel decisions finding that patent claims are valid if they are not "insolubly ambiguous." Amici argue that this invites judges to impose a meaning on ambiguous claims, when they should instead reject them outright.

Later: The Foundation for a Free Information Infrastructure (FFII) tells The Register that even narrow interpretation can't rescue software patents from the land of bad ideas: [Our] concern is that this kind of thing could give the impression that we only need to worry about bad patents, that if only patents were awarded according to the rules, properly examined and checked for prior art, everything would be OK. We don't believe that to be the case. We believe, more fundamentally, that the whole nature of patents on computer code is a mistake."

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Linux Australia "Shot in the Dark" by MPAA

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One topic of discussion this weekend at the EFF staff and board retreat was what Wendy calls the "Attack of the Subpoena-bots" -- that is, the trend toward automatic weapons-style litigation campaigns. This is when companies or industry groups like the RIAA and MPAA use key-word searches and the like to target possible infringers before firing off round after round of seemingly indiscriminate cease-and-desist letters. The problem with this is that even if the recipient is 100 percent innocent, he or she may have no idea of how to respond to the intimidating legalese/exhorbitant demands in these letters. Rather than risk doing the wrong thing, and eager to avoid the expense of an attorney, the recipient frequently decides to give up rather than to fight -- leading to the widespread chill of perfectly legitimate activities.

Fortunately for the Internet community, every once in a while a stray round hits the wrong guy -- someone not only willing but eager to fight back. Which is evidently what happened when the MPAA recently sent cease-and-desist notices to Linux Australia for providing access to two copyrighted movies: "Grind" and "Twisted." Except that what Linux Australia actually did was provide access to a download of the Twisted framework written in Python, and Valgrind, a tool for developers to locate memory management.

Needless to say, Linux Australia was not amused. And as luck would have it, the group has the legal chops and resources to do something about it:

"This seems to be a huge misuse of resources, an infringement upon various global spam laws, an infringement upon our own Copyright Act under Section 102 and needless stress and cost upon small Australian organizations and companies," [Linux Australia President Pia] Smith said.


"Linux Australia is concerned that this kind of shoot-in-the-dark approach to copyright protection is potentially damaging for Australian organizations and companies," Smith added. "Organizations that participate in such behavior should be held accountable, and forced to put at least some effort into researching the validity of their keyword searches."

Here in the states we're waiting for a ruling to come down that may provide additional protection for those inappropriately targeted by infringement claims: the decision in OPG v. Diebold. As Wendy notes in a recent OJR article, there's a seldom-used section of the Digital Millennium Copyright Act (DMCA) aimed at stopping misuse: 512(f), which provides that anyone who knowingly misrepresents material as infringing "shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer."

[Section 512f] allows one who has been hit with a purposely abusive demand letter to reply, "Not only am I not in the wrong, but you don't have the right to say I am," says Seltzer.

What I'm wondering is what the court will require to prove that Diebold knowingly abused the DMCA to silence its critics -- and how that might compare to what it takes to prove that someone has knowingly violated copyright law.

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Induce Act on the Move

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There's a new Hollywood Variety piece (ad-view req.) on Friday's coalition letter (PDF) asking Senators Hatch and Leahy to put the breaks on the Induce Act, which could see some movement in committee as early as tomorrow. It's short but sends precisely the right message, especially in stating unambiguously that "The Induce Act would usher in the most sweeping changes to current copyright law since the U.S. Supreme Court blessed the VCR in 1984."

Luckily, as Jason points out at Deep Links, the companies that could be targeted by any or all of the competing versions of the bill are now stepping forward. The question they're finally asking: "We've got two weeks to weigh the merits of a bill that would reverse the doctrine that brought us twenty years of technological innovation?"

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September 15, 2004


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My apologies for quiet here; I'm working on a few other projects. More to come soon.

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September 13, 2004

Stop Induce & Save Betamax - Call Congress on Sept. 14

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Save Betamax

If you prefer to write rather than call, you can use EFF's Action Center.

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This Is Your Brain

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September 11, 2004

Calling the DRM Bluff

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Fellow Copyfight author Wendy Seltzer has a new Legal Tags post responding to the news that TiVo and ReplayTV have agreed to hobble their products with digital rights management (DRM). Therein, she compares and contrasts the story the entertainment industry tells about DRM with what history teaches:

The story, as these entertainment producers tell it, is that without DRM, no recording at all would be permitted of pay-per-view. Or, if they couldn't control the tech to stop consumer recording, they wouldn't even broadcast some content in the first place...In that case, individuals are left with the choice between DRM-encumbered content and none at all.


Would mass entertainment cease to be if mass producers couldn't restrict the choices of their audiences? No, no more than musical composition stopped when courts ruled that the piano roll wasn't an infringing reproduction or sound recording stopped when audio artists had no public performance right. Scrappy upstart technology companies disrupted the business of producing music, but when producers couldn't control the technologies of distribution, they changed their business models instead.

So far, it looks like the entertainment industry is succeeding in doing everything but change business models. Indeed, it's working to persuade lawmakers to change the law to protect old business models, while supporting attacks on doctrine shown to enable new ones. Meanwhile, we -- the lowly customers without which the industry wouldn't exist -- get to "enjoy" less and less functionality for more and more money.

So what do we do about this? There's been plenty of discussion about, though little movement toward, building a "GeekPAC." But Wendy reminds us that there's a simpler, more direct route to influencing the industry: refusing to purchase DRM-hobbled products:

Too much of the public is willing to sell out the benefits of competition and creative destruction for the shorter-term promise of entertainment content. If we could instead commit ourselves to rejecting DRM, we'd force the entertainment industries to a test of whether they'd really shut down rather than offering open content, and we'd leave room for innovation in the creation and delivery of mass entertainment content.

To that end, Wendy is leading a project at EFF that could serve as a shopper's guide of sorts for innovative -- and because of that, endangered -- technologies; we plan to unveil it in November, just in time for the Thanksgiving/Christmas shopping season. Stay tuned.

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September 10, 2004

What the Fox Proposes for the Henhouse, Part 2

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Below, the text of the Copyright Office's second "consensus" draft of the misguided Induce Act, to which Ernie referred earlier today; more to come.

Later: Fred von Lohmann @ Deep Links, arguing that the proposal would break the Betamax doctrine: "If this isn't about using copyright law to squash disruptive technological innovation, I don't know what is. Transport yourself back to 1976, substitute the word 'reproduction' in place of 'public dissemination,' and you would see the VCR and the cassette recorder banned. Today, because any effort to ban those kinds of private copying technologies would result in public outcry, the Copyright Office takes aim at the technologies of the future: wireless and networking."

Later #2: Derek Slater: "Better, but still incredibly, superbly rotten...Short story: send in the accountants! Let's ask all businesses to open up their portfolios to see where their revenue comes from and base everything on the product's current uses without paying any attention to potential uses."

Later #3: Joe Gratz: "Even under the revised bill, something like the EFF's iPod complaint would probably get past summary judgment.

And that means the bill must be stopped, even though it's guys like me who would be able to rack up untold billable hours fighting off bogus INDUCE lawsuits."

Later #4: Bob Schwartz @ Wired: "The copyright office is now suggesting the exploration of a new and radically unprecedented approach to copyright law. It would not require that a defendant in a copyright suit have any knowledge of infringing conduct, any relationship with a particular infringer or any intent to commit a violation of the law."

Later #5: Downhill Battle: "Is Congress insane? You might think so at first glance. Voters, technology experts, public interest groups, and electronics manufacturers all oppose these efforts to weaken Betamax. So why is it still happening? Because the major record labels and the movie studios -- the same companies that opposed the Betamax ruling -- make huge donations to the re-election campaigns of the Senators who are sponsoring this legislation. And most members of Congress assume this is a non-controversial issue, off the radar of most voters. If they can please their donors without a big fuss, they will. It's bad policy, but until we start making noise, it's smart politics."

...continue reading.

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Updating the Copyright Clause

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Walt Crawford of the excellent Cites & Insights has a new piece over @ EContent in which he updates the Constitution's copyright clause to reflect today's unfortunate reality:

Original: "The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries."

Crawford's update: "Members of the MPAA, RIAA, and AAP shall have the right to control technological change in order to enforce perpetual rights to creative works. Congress shall ensure that the corporate right to control over and payment for every use of those creations takes precedence over outmoded notions such as freedom of speech, fair use, and the first purchase doctrine."

Nice. Or rather, not so.

Crawford notes that he's been writing a lot about copyright in Cites & Insights, and adds that there's no shortage of other sources on the Web -- but "no matter where you look you'd best be paying attention to the evolution of copyright as it hits closer and closer to rights you may have taken for granted." Spot on.

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Hasta La Vista, Balance

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One way that movie and music industry groups work to tip the copyright balance in their favor is by sending reps to tech standards groups and WIPO negotiations, where they push for "modernization," "harmonization," or "unification" of copyright law. Below, a snippet from the latest Greplaw interview, in which Professor Thomas Hoeren of Germany lifts the lid of these euphemistic terms to reveal the true nature of the negotiations:

Greplaw: Why do you think the Europeans are so non-visible in the international debate on digital copyright and other Internet regulation issues?

Dr. Thomas Hoeren: First, US lawyers are very powerful in fighting for their copyright model in the world. They often tend to believe that US law has "of course" and "naturally" to be applied in all parts of the world. Europe does not have this "terminator feeling." We have a tendency to stress the differences in legal systems, the incompatibilty of different cultural values in regulating i.e. the Internet. And we are too self-referential, focusing mainly on European or even national problems. Thus, we are not trained as US lawyers are to enforce EU ideas on an international level. If you attend to a WIPO meeting, you regularly see a lot of well-prepared top experts representing the USA - and a few EU representatives who always complain about being badly informed and prepared.

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September 9, 2004

Books Were Written

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It doesn't surprise me in the slightest that legendary Harvard law professor Charles Ogletree has admitted to mistakenly "lifting" passages from legendary Yale law professor Jack Balkin's published work.

It isn't because I believe, as the headlines will surely scream, that "plagiarism" is running rampant in the top echelons of Ivy League universities, or that "academic dishonesty" is on the rise. It's that so much academic writing is a product of what I would call collaborative authorship -- that is, researched, drafted, edited, rewritten, edited again, fact-checked, proofread, etc., by more than one person. A research assistant doesn't often get his or her name put on the book cover, but that doesn't change the fact that the work is collaborative.

Professor Ogletree says he read the final copy of the book with quote marks mistakenly deleted from the excerpted passage, but didn't recognize that the words were not his own. Again, no surprise. I certainly don't remember every word I've written over the past few years here at Copyfight, and writing a book often takes quite a bit longer than that. In addition, the editing process can take a piece of writing quite a distance from the original draft, and Professor Ogletree, scanning the six paragraphs quickly under a tight deadline, may have assumed that they were indeed his own -- only modified through the editing process.

Finally, it's likely that Professor Ogletree originally chose to include an excerpt from Professor Balkin's work in his book because it resonated with him. And because of that, the passage may indeed have sounded "familiar"-- the way a really good song sounds like you've heard it before. I find this perfectly understandable.

To be clear, I'm not suggesting that copying passages wholesale and calling it your own is okay. That's unethical. I'm simply pointing out that the fictions we create about authorship -- the solitary author who creates something out of nothing (rather than, say, responding to the work of his peers), who then "owns" his words the way he owns a car -- can lead to unfair judgments in situations like this. All artists are "borrowers" in some sense -- because we only have one world, under one sun, and there isn't anything new under it. There are variations we might call unique, but each of us is drawing from the same well. That's nothing to be ashamed of. Humbled, perhaps, but not ashamed.

If this were Capitol Hill, a PR professional might have advised Professor Ogletree to announce that "mistakes were made," so as to spread responsibility. I would say that "books were written" -- and that spreading responsibility in this instance is the only honest thing to do.

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September 7, 2004

RIAA Lobbyist: DRM 'up or INDUCE is gonna getcha

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On the heels of Fritz Attaway's antagonistic comments about P2P the other week, there was an interesting Q&A in CNET last week with Mitch Glazier, head DC lobbyist for the RIAA. I found this exchange particularly illuminating:

There has been speculation that the original Induce Act could make Apple Computer liable for selling like the iPod. Could it?


Why not?

The original Induce Act focused on the totality of the circumstances. There's no way that a company that produces great digital rights management for a licensed product is ever going to be shown to want to profit from piracy.

In other words, the RIAA intends to use INDUCE as leverage to pressure companies into incorporating DRM. If you incorporate "great digital rights management for a licensed product", they won't sue. Leave out the DRM, however, and well.. you enter the marketplace at your own risk.

Also, it appears that Mitch is confusing his Apple products. Apple's iTunes Music Store does put DRM on each of its songs, but the iPod can handle an unlimited number of DRM-free MP3 files without any restrictions. Apple could have designed the iPod to only handle DRM-protected content, but it didn't. Does the fact that it enforces DRM rules for some songs but not for others still mean it can't INDUCE?

...continue reading.

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September 6, 2004

M$ for Choice? - Er, Not So Much

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Fred von Lohmann @ Deep Links:

As we reported last week, Microsoft's new music download store, MSN Music, advised its frustrated iPod-toting customers to simply burn their purchases to CD, then rip them to an open format like MP3. That way, they could play their MSN Music downloads on their iPod (or any other device) without having to worry about the incompatibilities created by Microsoft's platform-specific DRM restrictions.

Of course, that was too good to last. According to Salon, senior Microsoft honchos decided to have that bit of tech support advice pulled off the website.

I don't know whether Microsoft did it under pressure from the record labels, or whether out of a desire to maximize platform lock-in, but I do know it wasn't to benefit Microsoft's customers, the people actually expected to be paying for the MSN Music downloads. Chalk this up as another anti-competitive, anti-consumer use of DRM.

Later: Derek Slater: "MS changed the language, noted by Fred, that advocated burning DRM-locked songs onto CD and then re-ripping into another, possibly unencrypted format. It now reads simply:

'Unfortunately Apple refuses to support the popular Windows Media format on the iPod, choosing to only support their own proprietary DRM format. If you are an iPod owner and are unhappy about this, please send feedback to Apple and ask them to change their policy and interoperate with other music services. There are more than 70 portable audio devices that support MSN Music today, and we hope that someday Apple decides to join with the industry and support consumer choice.'
70 devices: wow! I mean, Microsoft has picked them all out for me ahead of time, probably put a little red bow on them, too. What would I need interoperability and independent consumer choice for when Microsoft can shepherd me to approved devices?"

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September 3, 2004

What the Fox Proposes for the Henhouse

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We'll likely have some more here @ Copyfight on the Copyright Office's "consensus" draft of the misguided Induce Act, but in the meantime we have a choice quote from Will Rodger (culled from Declan McCullagh's updated CNET piece):

"First it was the Hollings bill, then Induce, now the Copyright Office's bill. They look different, but they all revolve around the same thing: Giving content (providers) veto power over all new technology. Who decided that holders of government-granted monopolies should determine the future of high tech? I don't remember reading that memo."

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The Importance Of...Listening to Ernest

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If you haven't yet, do check out Ernest Miller's The Importance Of...Law and IT.

Conversation #1 is on the recent decision in MGM v. Grokster and features Denise Howell, C.E. Petit, Tim Wu, and Fred von Lohmann.

Conversation #2 is on Apple v. Real v. Microsoft - e.g., the battle over which DRM-hobbled online music platform will win the most adherents. It features Mike Masnick, Rafat Ali, Jason Schultz, and Derek Slater.

And while you're at it, check out two new weblogs bringing fresh perspectives on developments in the copyfight:

Copyfutures, a group weblog for students in Lawrence Solum's IP seminar.

The Technology Liberation Front, a group weblog featuring Adam Thierer -- co-editor of the excellent Copy Fights.

(Thanks to Ernie for the all the pointers.)

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September 2, 2004

The Irony of Digital Music DRM -- More Choices, Fewer Options

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Posted by Jason Schultz

One of the things people love most about the Internet is that it runs almost entirely on open standards. For example, you can send email to anyone in the world with any email client. You don't need to use a Hotmail account to send to a Hotmail user. You don't need to use Outlook to send email to an Outlook user. Every email program works with every other email program.

In the digital music world, however, we're seeing an increasing trend toward technological balkanization. Apple's iTunes won't work on anything but the iPod. Real's music won't work on open MP3 players. And now, as Frank and Donna have noted, Microsoft has launched its new MSN Music Store into the marketplace for digital downloads complete with Janus-encrypted DRM that only play on MSFT-approved devices. Thus, much like Apple and Real, Microsoft's music launch is just the latest effort to "bring music to the masses" by, ironically, setting up a new, separate, incompatible DRM fiefdom.

The problem with this world is that users can no longer count on the same freedom and compatibility they enjoy for Internet apps like email when it comes to online music. In fact, they will have significantly less freedom than they would buying a CD. Rip a CD and you can take the unencumbered MP3 files anywhere you go and listen to them on any computer or MP3 player you happen to be using. However, if a friend of mine wants to come over and play me a new song he just bought from an online store, I now have to ask him which store, what DRM restrictions are on it, is it compatible with my system, etc., or when he comes over, his song may not play on my system. This seems to me like a step backwards in technology, not forwards.

DRM also poses a serious threat to the notion of a "music collection" as we know it. Microsoft's new Music Store restrictions may seem innocuous and reasonable today if you own a Windows machine or use MSN as your OSP. But what if you switch at some point to a Mac? Or Linux? Or what if you cancel your MSN account? Will you be able to take your music with you? What if Microsoft decided in five years to drop support for its Music Store? Or what if most MP3 player manufacturers decide to drop Microsoft? All of the sudden you could end up with your music locked up and no key to unlock it. And the worst part is you have no control over the situation. You don't own the keys to your own music; Microsoft does.

These are the kinds of limited, crippled choices DRM gives us. And as DRM standards proliferate, incompatibilities and restriction will likely only increase. Unlike most markets where new options mean more choice and better deals for consumers, competition in the DRM music space fractures the functionality and choices that consumer want the most -- freedom, compatibility, and mobility.

So where will these DRM Wars lead us? Ironically, as my colleague Fred notes from a recent entry on Microsoft's own Music Store FAQ, they may lead us right back to where the digital music revolution started -- ripping MP3s from CDs onto our hard drives.

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Know the Enemy 2: The LA Times Talks With Dan Glickman

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Posted by Ernest Miller

Yesterday, I took a look at a Hollywood Reporter interview (Dialogue: Dan Glickman) with the new head of the MPAA, Dan Glickman (Know the Enemy: New MPAA Chief Dan Glickman). Today, the LA Times (reg. req.) interviews the new guy (New MPAA Chief Brings Bipartisan Skills to His Role).

Herewith, some thoughts on this interview.

Some have wondered why the MPAA has been so successful with members of the Republican Party, despite the fact that Hollywood, in general, provides much more support to Democrats. Well, those people can continue to wonder:

Almost everybody here [at the Republican National Convention] that I've met has been open, curious, friendly and positive. They all want to work with me…. I recognize that there are some who wanted a Republican in my job of president of the MPAA. But I think folks also wanted somebody good at consensus building and that would fight for the motion picture industry. Clearly the movie industry, and all the industries interested in creative and copyright protection, have a lot of friends here in the Republican Party.
What he has to say on copyright infringement:
I don't think that MPAA is anti-technology. But it's vital that we combat piracy with a three-pronged approach: improve [piracy deterring] technology, enforce the laws and educate people, largely the younger people, in high schools and universities....We are engaging Congress on piracy. There are several bills that predate my coming into this job that are aimed at addressing this issue. These bills will make it easy to go after pirates. I think what we need to do is make the standards [that allow law enforcement] to go after violators more realistic.
His take on the tech industry ought to send shivers up the spines of Silicon Valley types:
I have spent time with our technology people in Washington, trying to familiarize myself with the technology. But the bottom line is, we need to make it as difficult as possible for people to engage in piracy activities.
Read the whole thing. See also, Techdirt (Dan Glickman's Bad First Impression).


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M$ for Choice

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Posted by

No kidding.

Writes Fred von Lohmann @ Deep Links: "Tech support for Microsoft's new MSN Music service is responding to the incompatibility between its downloads and the iPod by advising its customers to burn the downloads to CD, then rip the CD to a compatible format...Now that's what I call freedom of music choice, in contrast to Real Network's misleading campaign of the same name."

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September 1, 2004

HDTV: Engineering for Incompatibility

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Posted by Wendy Seltzer

Even as the FCC and consumer electronic companies try desperately to push Americans toward HDTV, one Washington Post reviewer joins the crowd throwing up hands at the complexity of it all. Parts don't interoperate well, even once you've upgraded for high-res, and worst of all, that's on purpose:

[T]he link from cable box to D-VHS remains troublesome -- by design. Thanks to an industry agreement, a high-def program can be copied from Comcast box to D-VHS only once. If you stop halfway and try again from the start, a "copy flag" prevents it.

In other words, consumer electronics manufacturers have so far capitulated to the demands of greedy copyright owners that they've built extra failure modes into their devices. It's not enough that the picture might pixellate due to weak signal or bad connections, the industry must punish its best customers (those who have just spent thousands on HD-capable equipment) by breaking perfectly reasonable personal use patterns. Of course, if you're sick of being treated like a thief, you might try an open-source MythTV-based HD-PVR.

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Know the Enemy: New MPAA Chief Dan Glickman

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Posted by Ernest Miller

Yesterday, I noted an interview with retiring MPAA chief Jack Valenti (The Willful Blindness of Jack Valenti). Today, recognizing the official change of command, incoming MPAA chief Dan Glickman is interviewed by the Hollywood Reporter (Dialogue: Dan Glickman). Fortunately, or perhaps unfortunately, Glickman doesn't seem nearly as willfully blind as Valenti.

There a number of interesting tidbits in the interview, such as the fact that 70% of the MPAA's 250 employees are involved in anti-piracy work and that the anti-piracy office is "really where the interfaces with the studios" are. The MPAA will also continue to make itself heard in promoting draconian copyright laws through international treaty:

One of my goals is to use my background and experience in dealing with international trade issues, particularly as I was involved in the agricultural arena, to further the market-opening free-trade discussions.
It is practically Orwellian how "market-opening" in MPAA-speak means innovation-controlling, as the MPAA exports the DMCA around the world.

Of course, there is a hint of arrogance in Glickman's comments regarding Rep. Rick Boucher (D-VA)'s Digital Millennium Consumer Rights Act:

Obviously there's some support for the Boucher bill -- and I think it needs to be fought vigilantly -- but my judgment is that there's no imminent threat of passage. It's going to require vigilance on (the part of) folks like the MPAA, the (Recording Industry Association of America) and others. The battles have heated up even more in the last couple of years on this. Rick is actually an old friend of mine; we served together on the Judiciary Committee. I have to go in and teach him a few things when I get a chance. (Laughs)
Let us hope he finds his arrogance mistaken.

Most importantly, Glickman's main focus will be copyright issues at all levels:

Copying is an international plague; it's pure, downright theft. The question is: How do you deal with this in the modern, changing world? It's a multifaceted strategy. Specifically as it relates to the movie industry, it has to be a combination of aggressive law enforcement by state and federal authorities, use of litigation, civil litigation (and) education. I spent two years in a university at Harvard, and I would hope to use those talents in part of the (public relations) and educational strategy to further the work that has already been done on college campuses. (Also important is) being open to new technology, exploring with the people who create new technologies how one permits those technologies to flow and develop but at the same time respects the creator's rights.
Frightening language in its anti-innovation clarity: aggressive state law enforcement, how one permits technology to develop.

Glickman will be leading the charge from the other side of the copyfight, what he says and does is important.

Teleread is not pleased by the claimed bipartisanship of the new chief lobbyist (Dan Glickman takes over at MPAA while press continues the Great Snooze).

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