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
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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
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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
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Blawg Channel
Chief Blogging Officer
Drew Clark
Chris Cohen
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Daily Whirl
Dead Parrots Society
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Betsy Devine
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Ernie the Attorney
How Appealing
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Frank Paynter
Scott Rosenberg
Scrivener's Error
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Eugene Volokh
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Berkman @ Harvard
Chilling Effects
CIS @ Stanford
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Global Internet Proj.
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IP Justice
ISP @ Yale
NY for Fair Use
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Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
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Monthly Archives

October 29, 2004

Boyle Responds to Epstein on Open Source Sustainability

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James Boyle has a powerful rebuttal to Richard Epstein's provocative piece, "Why Open Source is Unsustainable." Following, a few intriguing snippets :

Boyle rebutting the notion that open source cannot last because it's an "idealistic community":

"[Legal] uncertainty is only part of the reason that Prof Epstein thinks that open source is unsustainable. His key criticism is that 'idealistic communes cannot last for the long haul.' Well, the Catholic Church is also a relatively idealistic institution, based on canonical texts that are subject to conflicting interpretations. It is doing pretty well so far."

Boyle arguing against the idea that open source isn't viable because you can't "cash out"

"People used to say that collaborative creation could never produce a quality product. That has been shown to be false. So now they say that collaborative creation cannot be sustained because the governance mechanisms will not survive the success of the project. Prof Epstein conjures up a 'central committee' from which insiders will be unable to cash out - a nice mixture of communist and capitalist metaphors. ...But so far as we can tell, those who are influential in the free software and open source governance communities (there is, alas, no 'central committee') feel that they are doing very well indeed. ...[T]he tradition of 'rough consensus and running code' seems to be proving itself empirically as a robust governance system."

The whole shebang here.

Comments (2) + TrackBacks (0) | Category: IP Use

NY DA Appeals Bootleg Decision

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Dr. Wex @ Blogbook IP:

The NY DA has, no great surprise, filed an appeal of Judge Baer's dismissal of the case against Jean Martignon for selling bootleg recordings [PDF]. J.D. Martignon, a NYC record dealer and owner of the Midnight Record store in Manhattan, was indicted under a 1994 law that made it a crime to ever sell a bootleg recording of a live performance. The problem is that the law didn't specify a time limit; thus, it gave live recordings perpetual protection, something that Martignon's lawyers successfully argued was unconstitutional.

Remember that SCOTUS, in upholding the CTEA, noted that even though the
law provides for very long copyright protection it is still time-limited
and thus technically not unconstitutional. However, the anti-bootlegging
statute (formally 18 U.S.C. sec 2319A) lacked this and thus was found to
be a violation of Congress' copyright-granting authority.

SF Gate

Previous Copyfight coverage here.

Comments (2) + TrackBacks (0) | Category: Laws and Regulations

Sony BMG Inhales

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Breaking with the rest of the music biz, Sony BMG is partnering with Grokster for a sorta kinda P2P venture:

Although many of the details are still in flux, people familiar with Mashboxx said that it would probably work like this: When users search for a Sony BMG track, the system will allow them to download only authorized versions of the song.

In some cases, these could be free promotional tracks that come with an offer to buy higher-quality renditions of the music. Mashboxx hasn't set any prices. Many online music stores sell songs for 99 cents each.

The idea behind the venture is to let people continue to use file sharing to discover music at no charge, while encouraging them to pay for the songs they want to keep.

Comments (0) + TrackBacks (0) | Category: IP Use

Aren't There Any Terrorists Out There?

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Because if there are, shouldn't the Department of Homeland Security be looking for them rather than personally investigating a potential trademark violation of the Rubik's Cube?

The call came in late July or early August. A man identifying himself as a federal Homeland Security agent said he needed to talk to Cox at her store.
Cox asked what it was all about.

"He said he was not at liberty to discuss that," she said.
They agreed to meet in early August, but the agent later canceled. Cox thought the matter had blown over when the agent called back Sept. 9 to say he was coming out there.

"I was shaking in my shoes," said Cox, who has owned Pufferbelly Toys for more than four years. "My first thought was the government can shut your business down on a whim, in my opinion. If I'm closed even for a day that would cause undue stress."

The next day, two men arrived at the store and showed Cox their badges. The lead agent asked Cox whether she carried a toy called the Magic Cube. She said yes. The Magic Cube, he said, was an illegal copy of the Rubik's Cube, one of the most popular toys of all time. He told her to remove the Magic Cube from her shelves, and he watched to make sure she complied.

The whole thing took about 10 minutes.

Via Siva Vaidhyanathan.

Comments (1) + TrackBacks (0) | Category: Laws and Regulations

October 28, 2004

NBC Chief to Congress: Please help save the Copyright Clause!

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Posted by Jason Schultz

Who knew the Copyright Clause of the US Constitution was under attack?

Well, according to Robert Wright, Chair of NBC Universal, its in critical condition and needs help STAT!:

In Washington to accept a First Amendment award from the Media Institute, Wright, the dean of network chiefs, sent a message to legislators, regulators and whoever else was listening that his company is ready to lead the fight for copyright protection, saying the Copyright Clause is under "enormous pressure and requires our vigilant attention."


Wright said that technology, not legislation, is the best solution to intellectual property theft, but he also said that government needed to create "new rules of the road for the digital world...that encourage technological progress yet at the same time uphold the values that make commerce possible."

His suggestions:

1. Support a house Judiciary Committee package of antipiracy bills  "currently in limbo".

2. Find some compromise in the Senate Judiciary Committee on the so-called induce legislation targeted at peer-to-peer file sharing.

3. Support Attorney General John Ashcroft's proposed intellectual property protection recommendations.

Wow.. a First Amendment advocate supporting Ashcroft? Where can I get some of that Kool-aid?

mmm... Kool-aid... (tm!)

Comments (4) + TrackBacks (0) | Category: Laws and Regulations

October 27, 2004

Copyright Balance Gone With the Wind?

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The Margaret Mitchell estate is at it again:

Heirs of Margaret Mitchell have threatened the U.S.-based Project Gutenberg and Project Gutenberg of Australia -- charging infringement of copyright.

The Stephens Mitchell Trusts wants Australian Gutenberg volunteers either to remove Gone With the Wind from their servers or else take steps to prevent downloads in countries where copyright law bans unauthorized distribution of the 1936 classic.

Otherwise, a lawyer for the heirs says in email and a certified letter, "we will take all appropriate steps to protect and enforce our clients' rights."

Previous copywrongs chronicled here.

Later Dan Gillmor:

Unfortunately, the constant extensions of copyright terms in some countries has set up this kind of situation. And this sort of situation is one of the things likely to lead to more and more "zoning" on the Net.

Even if the Australia site does attempt to block access to people from some countries, there's no way to make this work 100 percent of the time. Does the Mitchell estate really believe it will have won anything valuable?

The bigger issue, as the TeleRead story indicates, is the prospect that the most restrictive political regimes will end up telling everyone what to do. If the most repressive governments and laws determine Internet governance globally, we're all in deep trouble.

Comments (2) + TrackBacks (0) | Category: Laws and Regulations

I'm Mad As Hell, and I'm Not Going to Pay For It Anymore

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Cory responds below to a Copyfight reader who suggests that the way to avoid being asked to pay for a particular product again and again simply to enjoy traditional "me2me" time- and space-shifting "privileges" (à la HBO ) is to refuse to purchase the product altogether. Needless to say, Cory disagrees:

That's a cool personal moral code, but it's not the one I adopt. Copyright is a limited monopoly given on our behalf to creators. What a creator can and can't demand of you is spelled out by lawmakers, who balance the cost to us of having monopolies in the market with the benefit of creating incentives to produce work we can enjoy.

When a creator conditions use or access of his work beyond the scope of copyright (you must stand on your head, you must not make a backup, you may not sell this on), it's not a fair market in creativity that can be corrected by directing a purchase in the right direction: it's an abuse of a regulatory monopoly that picks my pocket to line a right-holder's.

Monopolies aren't subject to market forces: that's why we have trust-busters. I think that buying from the ethical railway barons would not have caused the monopolistic railway barons to act better. We needed to go in with a fireaxe and bust their trust. I don't think that buying from ethical artists will get the big companies to act better either. Regulation -- the creation and maintenance of copyright -- created this mess, and only regulation -- changes to copyright -- will solve it, IMO.

Comments (6) + TrackBacks (0) | Category: IP Abuse

October 26, 2004

The Key to a Good (Fair Use) Defense

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Posted by a good offense. That's the message of Fred von Lohmann's latest column at, which urges ISPs and online publishers to take advantage of the recent ruling in OPG v. Diebold to level the playing field with copyright holders who send abusive takedown demands:

[By] bringing litigation in selected cases, ISPs and Internet publishers can begin to build precedents that may preemptively deter copyright owners from sending blunderbuss takedown notices in the first place. Counsel for copyright owners, on the other hand, will have to examine potential fair use arguments more closely in light of the Diebold ruling, especially if they have been informed by an ISP or publisher that the material may not be infringing.

Speaking of fair use offense, there has been some talk today about whether the Lexmark ruling Jason has been marveling over may turn out to be useful in the appeal of the awful BnetD ruling (PDF). Meanwhile, Ernie's latest web radio show has been released. The topic? The BnetD ruling.

Derek Slater, Joe Gratz, and Michael Madison of Madisonian Theory each have thoughts to share on the Lexmark ruling. Ernie, Michael, and Seth Finkelstein have clearly given a great deal of thought to the BnetD decision. Perhaps we'll see some brainstorming about how the Lexmark ruling could be applied in Bnetd v. Blizzard?

Comments (0) + TrackBacks (0) | Category: IP Use

More good Lexmark quotes

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Posted by Jason Schultz

More from SCC's victory over Lexmark's DMCA claim:

"Nowhere in its deliberations over the DMCA did Congress express an interest in creating liability for the circumvention of technological measures designed to prevent consumers from using consumer goods while leaving the copyrightable content of a work unprotected."

"We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case[.]"

"Congress gives authors and programmers exclusive rights to their expressive works (for a limited time) so that they will have an incentive to create works that promote progress. Lexmark’s reading of the extent of these rights, however, would clearly stifle rather than promote progress. It would allow authors exclusive control over not only their own expression, but also over whatever functional use they can make of that expression in manufactured goods. Giving authors monopolies over manufactured goods as well as over their creative expressions will clearly not “promote the Progress of Science and the useful Arts,” but rather would stifle progress by stamping out competition from manufacturers who may be able to design better or less expensive replacement parts like toner cartridges."

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

Lexmark ruling: Chock Full O' Nuggets

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Posted by Jason Schultz

Wow.. Talk about a mother lode. I've just finished reading through the Lexmark Opinion from the Sixth Circuit. There's a whole lot of good stuff in it about copyright, fair use, and limitations on the DMCA. Here's my current favorite from one of the concurrences (note the shout out to Larry L's new book!):

I write separately to emphasize that our holding should not be limited to the narrow facts surrounding either the Toner Loading Program or the Printer Engine Program. We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case: by, for example, creating a Toner Loading Program that is more complex and “creative” than the one here, or by cutting off other access to the Printer Engine Program.

The crucial point is that the DMCA forbids anyone from trafficking in any technology that “is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [protected] work.” 17 U.S.C. § 1201(2)(A) (emphasis added). The key question is the “purpose” of the circumvention technology. The microchip in SCC’s toner cartridges is intended not to reap any benefit from the Toner Loading Program – SCC’s microchip is not designed to measure toner levels – but only for the purpose of making SCC’s competing toner cartridges work with printers manufactured by Lexmark.

By contrast, Lexmark would have us read this statute in such a way that any time a manufacturer intentionally circumvents any technological measure and accesses a protected work it necessarily violates the statute regardless of its “purpose.” Such a reading would ignore the precise language – “for the purpose of” – as well as the main point of the DMCA – to prohibit the pirating of copyright-protected works such as movies, music, and computer programs. If we were to adopt Lexmark’s reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures “for the purpose” of pirating works protected by the copyright statute. Unless a plaintiff can show that a defendant circumvented protective measures for such a purpose, its claim should not be allowed to go forward. If Lexmark wishes to utilize DMCA protections for (allegedly) copyrightable works, it should not use such works to prevent competing cartridges from working with its printer. Reading the DMCA in pari materia with the rest of the copyright code supports this interpretation.

The DMCA should be used as part of the copyright code as it applies to computer software codes and other digital media. To this extent, the specific “purpose” language of the DMCA modifies the more abstract language of the previous copyright law. As the Court explains, the fair use exception in copyright law explicitly looks to the purpose of the one making the copy in determining whether or not such copying violates the statute, and the DMCA itself contains a reverse engineering exception that also demonstrates Congress’s aim merely to prevent piracy. I agree with the Court that both exceptions apply to SCC’s actions in this case. But we should be wary of shifting the burden to a rival manufacturer to demonstrate that its conduct falls under such an exception in cases where there is no indication that it has any intention of No. 03-5400 Lexmark Int’l v. Static Control Components Page 22 pirating a protected work. See, e.g., Lawrence Lessig, Free Culture 187 (2004) (noting the danger that “in America fair use simply means the right to hire a lawyer to defend your right to create”). A monopolist could enforce its will against a smaller rival simply because the potential cost of extended litigation and discovery where the burden of proof shifts to the defendant is itself a deterrent to innovation and competition. Misreading the statute to shift the burden in this way could allow powerful manufacturers in practice to create monopolies where they are not in principle supported by law. Instead, a better reading of the statute is that it requires plaintiffs as part of their burden of pleading and persuasion to show a purpose to pirate on the part of defendants.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

Sixth Circuit reverses Lexmark DMCA Ruling

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Posted by Jason Schultz

This just in --- Static Control Corp. has won its appeal against Lexmark over the right to produce after-market replacement cartridges for Lexmark printers.

Read the opinion here

More on the case here.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

October 25, 2004

More on Me2Me: Market No Savior

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Cory on why the market won't protect people from attacks on "me2me" freedoms:

Advocates of DRM talk about the ability of the market to find a balance between features and restrictions, because people whose freedom has been unduly restricted will make future purchase decisions that will put the overly draconian DRM systems out of business. But check out this cautionary tale of a guy who bought a home-media centre, started recording his favorite shows to DVD, and then:

Turns out that a couple of days ago, HBO started encrypting all of its programs with CGMS-A. They allow you to "copy" a program that you record from their signal once. The trouble is that they consider that one-time copy to be recording the program onto your hard drive, not taking it from the hard drive to a DVD. THAT SUCKS OUT LOUD and I am extremely angry, as you can imagine. The files are HUGE and, even though I have a 200 gb hard drive, I can't keep them there forever.

When he bought the media centre, it did the thing he wanted it to do with the shows he wanted to do it to: it's like buying a VCR to record the World Series, taking it home and satisfying yourself that it works. It worked.

Then, months later, it stopped working. He could no longer record his favorite shows. Why? Well, because the cablecaster decided to remove a right from him. And because Gateway, the company who sold him the equipment, decided to collaborate with the cablecaster in screwing him out of that right.

When this guy goes back to the store, what should he do to protect his next investment? Say he buys an HP device next, having concluded that Gateway won't look out for his interests. He takes it home and finds that it works fine for his purposes (maybe HP has a "better" deal with HBO that will let him burn more-restricted DVDs from his HP media-centre), then, a couple months later, the cablecaster switches on another flag and suddenly his video won't work.

Where's the market-force here? Should he stop being an HBO customer? A cable customer? A customer for only those PCs that he builds himself and installs a copy of GNU/Linux on?

What purchase-decision can he make or avoid in order to signal to the market that this kind of restrictiveness is unduly harsh and he won't pay for it any longer?

Comments (4) + TrackBacks (0) | Category: Big Thoughts

The Real Threat: Me2Me

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Jason proposes an interesting theory below: he argues that the recording industry's war on P2P may be a distraction from an even more mission-critical battle -- gaining control of "me2me."

It looks like David Bernstein of the Boston Phoenix would agree with Jason; in a recent piece on the RIAA's strategies, Bernstein writes:

"[The] labels are missing the fact that store-bought CDs, while probably retaining a place in the consumer's world, cannot provide what today's users want: total portability of their music. If users can connect electronically to every song or album they have ever paid for, wherever they may roam, well, the CD just can't match that."

HBO, for one, is very straightforward in its FAQ that the goal is to take away your time/space shifting rights in order to sell them back to you. In one section, HBO says that it has sole discretion to "decide what copying privileges [we] wish to extend to consumers." In another, it tells you its "On-Demand" service means you no longer need to "time shift" programming. But if you would like to own the programming you've just paid to watch, you are certainly welcome to pay for it again. "[The] entire series of HBO's Original Programming (such as The Sopranos, Six Feet Under, etc.)...[is available] in attractive box sets with special features such as out-takes and directors' notes."

So perhaps this battle isn't so much about "competing with free" as it is about competing with our expectation that we can, as we did with analog media, pay once to enjoy our purchase anytime and anywhere.

Comments (4) + TrackBacks (0) | Category: Big Thoughts

Wendy Seltzer: The Engadget Interview

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Check out the new interview @ Engadget, in which our own Wendy Seltzer answers a number of Copyfight-relevant questions. Of particular interest to those concerned about the "plus-copyright" powers of the DMCA: her answer to the question of whether the recent ruling (PDF) in US v. Martignon can help rein it in:

The Martignon decision, finding the federal anti-bootlegging statute unconstitutional because it granted copyright-like protection against live recordings for unlimited times, is an important re-affirmation that copyright is a limited exclusive right, meant to balance public and private interests. In the DMCA fight, we've tried to call attention to the ways anticircumvention blocks access to public domain works whose copyrights have expired [link: EFF comments in Copyright Office rulemaking] - without success so far, but this decision might prompt courts to address those concerns. Judge Baer also ruled that Congress can't use a broader part of the Constitution, the Commerce Clause, to circumvent the limitations of the Copyright Clause. So if we can show that the DMCA's restrictions on speech aren't justified under copyright law, Congress can't make up other justifications.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

October 24, 2004

Fisher on P2P Crisis and Opportunity

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Harvard law IP professor/Berkman Center director/alternative compensation advocate Terry Fisher, guest-blogging at the Lessig Blog:

Larry has kindly offered me the opportunity to host his blog for a week. My plan is to use the opportunity primarily to catalyze a discussion of the current crisis in the entertainment industry and what potential solutions to it are both attractive and practicable.
Before addressing the particular ways in which I and others have tried to solve the crisis, it might be helpful to consider whether my characterization of the crisis is fair and balanced. One potential line of criticism would point to the recent paper by Oberholzer and Strumpf, The Effect of File Sharing on Music Sales (which appeared after my manuscript was set) as evidence that I have seriously exaggerated the extent to which the new technologies (in this case, P2P services) have, at least thus far, threatened traditional business models.

Comments (0) + TrackBacks (0) | Category: IP Use

INDUCE's biggest threat: Me2Me apps

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Posted by Jason Schultz

During the CATO Institute panel on INDUCE last week Markham Erickson of NetCoalition made an interesting point. While discussing the various flaws in the INDUCE drafts, he noted that several versions attempted to outlaw P2P appliations based on language prohibitng specific technological architectures. For example, some of the drafts from the Copyright Office specifically targeted technologies that were "capable of widespread distribution of copyrighted materials."

Markham noted that when he talked to engineers in tech companies about this particular aspect of INDUCE, their main concern was that the direction that P2P architecture is headed (decentralized services vs. central server intermediaries) is the same direction that all network technologies are headed. Today's cutting edge markets -- Wifi, WiMax, Camera Phones, MP3 players, etc. -- are all trending toward flexible decentralized distribution mechanisms, just as P2P does. Therefore, any approach to INDUCE that targets a specific or general architecture threatens not only legitimate innovation in principle but also legitimate innovation in practice, at least according to the engineers on the ground.

This got me to thinking. Why were the RIAA and MPAA so insistent during the negotiations on a broad technological definition? Why not just write a bill that narrowly targets P2P companies by name and be done with it? (For example, one could simply make it illegal to write a software program that utilizes the GiFT, FastTrack, Gnutella, Bittorrent, or OpenFt protocols and that would effectively ban most current P2P apps).

The reason, of course, is that INDUCE is not really just about P2P apps. It's about the future of all distribution technologies and in particular, about what I like to call "Me2Me" apps. As network and distribution technologies evolve, they offer consumers and computer users more and more control over their own media. P2P technology broke into the mainstream as a mechanism for distributing files amongst different people, but the same architecture is becoming popular among technologies designed to distribute one person's content amongst his or her various platforms.

For example, consider iTunes and the iPod. iTunes allows one to stream music to any computer on your local area network. It also allows you to transfer files to any number of iPods. It also allows you to rip, mix, and burn CDs. In essence, it allows massive distribution of content, albeit primarily to one's self, family, and friends.

Or consider the Media Package on Tivo via Wifi. I use my Tivo Media package to listen to music streamed from my computer over my home wireless network. I also use it to view photos. Both of these mechanisms are "Me2Me" distribution technologies which allow me to shuffle my content from one platform to another. Technologies like the Airport Express and SlingBox further extend this capability by allowing you to shift content from your computer to stereo or from your Tivo to your laptop or PDA. And finally, don't forget cell phones. More and more, they are becoming dissemination technologies for audio, video, photos, and music.

The next generation will go even further. Imagine a wireless iPod that can synch with any iTunes application within 75 feet. Or a MP3 player for your car that automatically syncs with your home computer when you pull into the driveway. Or a media player on your laptop that automatically syncs with your TiVo to download the latest episode of your favorite Prime Time addiction.

This is, of course, the RIAA and MPAA's worst nightmare. Both industries have based their business models on controlling each and every permutation of playback for their content. The RIAA wants to make you pay when you buy the CD, when you download the iTune, when you listen to an Internet webcast, etc. The MPAA wants to charge you at the theater, for every copy of a DVD you buy, and (via advertising) for every show you watch on TV. Yet the more and more we as users and consumers are allowed to control and choose our own form of playback, the less Hollywood can justify charging us for each one. The more utility we get out of Me2Me apps, the less we're willing to pay someone for an extra copy or delivery mechanism. In the end, Me2Me technology may pose a larger threat to Big Cotent's bottom line than P2P ever did.

So how does this play into the politics of INDUCE? Well, P2P has been an easy political target for the RIAA and MPAA. Its an easy case of massive unauthorized distribution. In the Grokster case, they were able to show that over 90% of P2P is used for infringement of copyright. Its transfers take place outside the privacy of one's home and often include socially-stigmatized content like pornography, spam, spyware, and viruses.

Me2Me technology, however, would be much much harder to outlaw. Many Me2Me uses would arguably be fair or non-infringing uses. For instance, they tend to be private uses involving only family or friends. Many would involve use of media legitimately purchased by both the sender and recipient of the content (i.e. oneself). Thus, under current copyright law, it would very difficult to outlaw any of them. It would also be difficult to chastize them politically in front of Congress.

This is why the battle over DRM, the Broadcast flag, and now INDUCE has become so important for them. If the RIAA/MPAA wait too long, more and more platform distribution technologies with primarily legal uses will come to market and undermine their case for outlawing specific architectures. As these technologies take hold, public and political sentiment will continue to grow against harsher restrictions and enforcement and more toward allowing and embracing such technologies. Thus, the window of opportunity for the content industry to pass a restrictive law like INDUCE is very short. They must act now (dare I say pre-emptively strike?) while they can to frame the targets as a bunch of "bad" actors (i.e. the P2P companies) before too many "good" actors (i.e. Me2Me products and services) infiltrate the market and obfuscate the ability to outlaw one architecture without threatening the others.

Comments (3) + TrackBacks (0) | Category: Big Thoughts

October 23, 2004

Bang Bang Maxwell's Silver Ecomonic Model of Copyright Comes Down on First Monday

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Posted by Jason Schultz

Terrence Maxwell has a new article in First Monday (Is Copyright Necessary?) attempting to model the effects of different copyright policies historically and into the future (e.g. authors wanting high-protection copyright vs. the public wanting low-protection copyright). His models are fairly abstract and complex (see image below), but his results are interesting:

As indicated in the table, the desired policies of authors, publishers and public domain advocates produce very different outcomes in a 100–year simulation, some of which run counter to the protagonists’ stated goals. For instance, while the authors’ position led to the largest number of authors, it also generated the lowest sales figures, and the fewest number of volumes published. This indicates that the demand for new volumes from authors was the lowest among the three options, and points to a greater level of competition among authors seeking publication. Similarly, while the reader position generated the highest level of sales, the greatest number of different volumes, and the lowest cost for books, it also severely constrained the number of authors. This means that while a greater number of volumes would be available, diversity in authorship would be curtailed. This, in turn, would tend to diminish the likelihood of variety in information products.

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October 22, 2004

The Difference Between Larry and Siva

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Neofiles has an interview with Siva Vaidhyanathan that sheds light on how he differs with Larry Lessig on a few key issues -- including the question of whether the recording industry lawsuits help or hurt the cause of copyright balance. Larry opposes the lawsuits; Siva approves -- in part because he believes that the suits represent a social and financial cost burden that the recording industry and the public will not agree to bear for long:

Neofiles:Lawrence Lessig clearly believes that copyright law is the greatest threat to free speech and discourse in America. You seem to agree with that view to some extent. How would you differentiate your views on this from his?

Siva: Copyright is the most pervasive threat to free speech in America. By that, I mean that it's the instrument of censorship most likely to stifle the most Americans. Other instruments of censorship -- USA PATRIOT Act, secret detentions of immigrants and uncharged terrorism suspects, restrictions on public demonstrations, the thugs who arrest mothers of soldiers at Laura Bush campaign stops -- are more acute and more deeply troublesome than copyright. But they are rather narrowly targeted and thus less influential within this big, teeming democratic culture as a whole. [...]

The only important difference between Lawrence Lessig and me involves our attitudes toward the civil courts. My basic complaint about the current copyright system is that Congress and the copyright industries have driven copyright regulation out of the domain of human interactions like courts and into machines themselves. They have tried to make copyright enforcement cost-free and risk-free. Taking someone to court costs money. I think this is a dangerous, technocratic trend. And Lessig agrees with me so far. But he thinks music companies suing potential infringers over peer-to-peer usage is a bad idea. I see the lawsuits as the proper way to deal with accusations of infringement. ...I don't like the idea of my students losing $3,000 for doing something relatively harmless. But over time, the industry will see that the public cost of the lawsuits outweigh the imagined deterrent effect of them.

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Bush, Kerry Want to Save Betamax, Grokster

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...or, rather, do a very good job of sounding like they do:

"Blaming the technology does not address the issue. We must vigorously enforce intellectual property protections and prosecute the violations, not the technology," Bush wrote.

Kerry responded with, "I strongly support attacking bad behavior -- putting child pornographers behind bars and prosecuting individuals engaged in mass piracy. But, regulating technology should be a last resort to solving any content problem."

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October 21, 2004

Whatever Happened to the Induce Act?

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The Cato Institute held a panel discussion yesterday featuring key negotiators in the discussions on the currently stalled Induce Act -- two from each "side." These are a few of the people who were infamously locked into a room together after Senator Hatch told them to come up with a workable compromise before the Congressional session ended.

For (dis)Content: David Green, MPAA, and Mitch Glazier, RIAA.

For technology/innovation/Betamax: Markham Erickson, NetCoalition, and Gigi Sohn, Public Knowledge.

Below are few very rough notes on the opening gambits from each; I couldn't stick around for the whole thing. You can listen to audience Q&A, etc., here. Fascinating stuff:

David Green begins by digging deep into an old bag of tricks -- attempting to induce, if you will, "shock and awe" over how anyone can get the lastest Hollywood product in mere "seconds" via P2P. He then segues into a discussion about how, no matter what, "everyone" agrees that bad actors must be taken out (if not by Induce, then something else, and soon), complains bitterly about the Grokster decision, and ends by arguing that Induce isn't a new and radical change to copyright law. No mention of Betamax, even while addressing this last point.

Mitch digs into the same bag, pulls out the chestnut about P2P as conduit to porn. Because you must think of the children. Discusses the various drafts; sounds as though he didn't care which one made it past the goal line. Says it's pretty clear to everyone that there is a bad business model here. These actors are bad and need to be isolated. We don't want to hurt the Yahoos and Googles of the world. But these people do need to be stopped.

Gigi starts with Betamax. Larger principles at stake. If this was just about P2P, she wouldn't be here. She calls Mitch on the porn gambit; says it's cynical and unfortunate that he mentioned porn. [People start to clap; she says, "No clapping."] Everyone here has a PC or another innovation, and it's because the Supreme Court found that the VCR is not an illegal copying tool. Technologies capable of substantial non-infringing uses are okay. This is critical. Led to all kinds of innovation. Critical to this economy. The problem with the Induce act, is that it was so broad that almost anyone would be liable. Cites EFF's "brilliant" mock complaint against Apple. Says under the "reasonable person" standard, of course iPod would fall under that. Says we heard all of this, "We won't go after Apple, we won't go after the iPod." But history shows otherwise. Induce would have punished more than bad actors, and further, more than tech companies. Even CNet was getting nervous. Never mind the promises, "No, no we won't sue you." Again, history shows otherwise.

Says she also hears, "We need to get rid of Grokster." But do we? Argues lawsuits are working. DoJ is helping. HR 4077 may even lower the standard for copyright infringement. Legit services gaining popularity, and album sales are up. Finally, spyware is scaring people away from P2P. People talk about impossibility of "competing with free" -- but you can actually do that.

Stresses again that people shouldn't be fooled that this is about P2P -- it's about who controls the future of technology. The content industry wants this. Or govt. controlling it for them. Broadcast flag -- represents kernel of that debate. Who will control: content or tech?

Gigi closes by reading the end of Grokster opinion out loud -- a lesson for content industry, for everyone. "We live in times when quicksilver changes..." Warns: Be careful what you ask for. Because you may kill the golden goose.

Markham starts by stating that "the entire Internet is a giant copying machine." So everything is a peer-to-peer platform. Legislation must distinguish between architecture and everything else. Betamax is the foundation upon which today's tech industry stands. There's got to be something above and beyond architecture. Betamax is responsible for the great products and services we have. Induce Act undermines Betamax. Proponents said they weren't touching Betamax. But our concern was that you were making cause of action irrelevant. The result is explosive litigation over every new tech that comes down the pike. We had reason to fear. So far, the content industry has sued everything that comes down that pike.

Markham says he disagrees that some in tech companies support Induce. Says they all have substantial concerns. His group worked on creating an alt. draft. Thought: secondary liability is case law, not statute. So put in Sony Betamax-like language. BSA had a thoughtful draft. IEEE did, too. Senator Hatch took all the drafts and told Copyright Office to meld/make it work -- it produced two drafts. Behavior-based and business model approach. Smart approach. But problem is that we needed time to work these things out. Hatch wanted to move this out of committee during the session. Told us to go into a room and work it out.

We tried to do that. Problem -- these discussions quickly devolved into a draft with a technology-specific approach. We had a huge problem with this approach. Who is "good," who is "bad"? This is a losing strategy. Future of the Internet is decentralization. Trying to construct this box will have a tremendous chilling efffect. Look at Internet industry and consumer electronics. The future is portability. Guess what? A lot of that content will be distributed over the Internet. They said, "If you're a good actor, you'll win in court." That doesn't help. Not when you need people to invest.

We need to look at the actions, not the tech itself.

Moderator Adam Thierer says Cato has been largely uninvolved. His own position a tough one -- he's an intellectual schizophrenic over copyright. He struggles. A hard sell on copyright policy. His qs for David and Mitch: What about the Sony precedent? That's a good decision. Made lots of money. Clearly we wouldn't have wanted it to come out another way. Why shoot the middleman at all? Analogy to gun debates. Why not just enforce directly against the infringer?

Qs for the other side -- isn't there any role at all for secondary/contributory liability in copyright law? Aren't some people really inducing? What conduct should be clearly illegal? He says the rule is: don't ban or mandate business models to solve copyright problems. But asks, are there exceptions to the rule?

Later: Coverage from Wired: Toe-to-Toe over Peer-to-Peer.

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October 20, 2004

Who Holds the Copyright to the Universe?

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Too Much, Too Little, Just Right

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Madisonian Theory dons the little red hood wanders into the woods to explore the levels of copyright use/abuse in three recent opinions. Great stuff:

Too Much Copyright: "The conventional 'copyfight' wisdom is that excessive emphasis on copyright's property-like character can lead to quashing, instead of promoting, innovation and creativity.

Too much copyright (and badly understood copyright) has other pernicious effects. Today's example: the recent opinion of the Supreme Court of Arkansas in Arkansas Democrat-Gazette v. Brantley...The Arkansas Supreme Court...effectively [allowed] the newspaper (or any litigant) to hold up the civil litigation process – not a copyright case, but any case – on the ground that the evidence is covered by some copyright interest."

Too Little Copyright: "Sometimes, though, a little copyright goes a long way. Take Grosso v. Miramax (pdf link to the court's opinion), where the Ninth Circuit Court of Appeals ruled last month that a screenwriter who sent an unsolicited script to Miramax could sue Miramax for breach of an implied contract – a state law claim – after portions of the script turned up in Rounders. This is so, it turns out, even though the Ninth Circuit ruled that the screenwriter's copyright law was rightly rejected on summary judgment."

Just Right: "Once in a while, and perhaps more often than academics sometimes concede, the court gets it right. Take Compaq Computer Corp. v. Ergonome Inc. (pdf link to the opinion), in which the Fifth Circuit Court of Appeals recently upheld a jury finding of fair use....For all of you out there teaching and using ergonomic principles to stay healthy at the keyboard, fear not: copyright won’t stand in your way."

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October 19, 2004

How Do C&Ds Affect Fair Use?

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The Free Expression Policy Project (FEPP) wanted to know what effect cease-and-desist notices like the ones to which Jason refers are actually having on fair use. So the organization took a look at 131 such notices compiled by the Chilling Effects Clearinghouse, then culled seven for further investigation. The findings? Whether you fight or fold depends on the circumstances.

Even based on this small number of examples, we can infer that cease and desist letters sometimes -- but not always -- have chilling effects on speech that might qualify as fair use. Critical factors in determining whether the recipient of such a letter will comply seem to include awareness that fair use provides a defense; support from the community; and a non-risk-averse temperament.

DMCA take-down letters seem more likely to have consistent chilling effects. This is because the law requires the ISP to remove the material once the letter (if it's in proper form) has been received, without actual proof of a copyright violation, and then puts the onus on the Web speaker to assert his or her rights.

FEPP is careful with qualifiers, as well it should be; this is an awfully small number of cases, and people who submit C&Ds to Chilling Effects are likely to be clueful types ready and willing to fight back. But I'm less interested in whether or not the report consitutes "proof" of how often legitimate expression is being chilled than I am in what it reveals about what works -- that is, what people need to be empowered in the face of intimidating legal threats.

Check out the report in full; it's relatively short, and the seven "case" studies make for illuminating reading about the state of speech online.

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Copyright Takedown Experiment Reveals Horrible ISP Policies

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Posted by Jason Schultz

Doom9 sez:

Dutch civil rights organization Bits of Freedom has run an interesting experiment: They put up a text by a famous Dutch author, written in 1871 to accounts with 10 different ISPs. Then they made up an imaginary society that is supposed to be the copyright holder of the author in question, and sent copyright infringement takedown notices to those 10 ISP via email (using a Hotmail account). 7 out of 10 ISPs took down the material, sometimes within hours and without even informing the account holder. One ISP doubted the legitimacy of the claim and asked for some proof that the alleged plaintiff was in fact the copyright holder. Yet another ISP actually realized that copyright had long since run out on the work. That's real scary, don't you think? Made up society, Hotmail addresses and a website is gone.

BOF's paper is available here (PDF)

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October 18, 2004

HBO freezes fair use; plugs analog hole

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Posted by Jason Schultz

Going on a trip and want to take the latest episode of The Sopranos with you? Forgetaboutit. Coming this June to a cable or satellite set top box near you, HBO will be locking down all fair use rights on their content -- whether analog or digital. You can make one copy of regular HBO content and no copies of On-Demand content:

Commencing in June, HBO will include a technology in its program services that provides copyright protection information to consumer electronic equipment connected to analog outputs of cable and satellite set-top boxes. The technology (CGMS-A -- Content Generation Management System for Analog) enables compliant digital recording devices to abide by federal digital encoding rules.

In accordance with the federal encoding rules, HBO and Cinemax subscribers will still be able to make a single copy of HBO and Cinemax linear programming, but will not be able to make any copies of HBO-On-Demand or Cinemax-On-Demand programming.

...continue reading.

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October 15, 2004

Disney Caught Pirating from Public Domain -- and Children!

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Posted by Jason Schultz

When will Disney stop stealing from the public domain? I mean really, it's just like taking a CD from a record store without paying for it... except that the record store owner is dead... and well, the store is really the compendium of human knowledge.. and the CD is part of our collective cultural history. Whatever. Theft is Theft, right?

LONDON, England (CNN) -- An unlikely feud is seeing the film empire that built its name on cartoons for children -- the giant Disney corporation -- at odds with Britain's most famous hospital for sick children.

And it is all over another legendary children's favorite -- Peter Pan, the boy who never grew up.

In what the New York Post billed this week as "Sick kids vs. Disney in Peter Pan dust up," Great Ormond Street hospital for children in London is consulting lawyers over a book published by a Disney subsidiary in the United States.

"Peter and the Starcatchers" by Dave Barry and Ridley Pearson and published by Disney's Hyperion Books is billed as a prequel to the children's classic, "Peter Pan."

Great Ormond Street was left the royalties to Peter Pan in 1929 by the author, J.M. Barrie -- and million of pounds earned from copyright fees have gone towards treating sick children in Britain ever since.

This weekend sees the UK premiere of a film about Barrie's life, "Finding Neverland" -- starring Johnny Depp, Kate Winslet and Dustin Hoffman. The hospital will receive royalties from book excerpts portrayed in the film.

But the hospital charity says is getting nothing from "Peter and the Starcatchers" -- which has been on the New York Times best seller lists, has had an extensive author tour and has its own Web site. They say the book has been published without its permission.

A spokesman for the hospital told CNN that Great Ormond Street held the copyright to Peter Pan in the United States until 2023 -- although it runs out in EU countries in 2007 -- and said: "We are considering our options."

Disney, meanwhile, has insisted that Peter Pan is out of copyright in the United States.

"The copyright to the J.M. Barrie stories expired in the U.S. prior to 1998, the effective date of the U.S. Copyright Extension Act, and thus were ineligible for any extension of their term," Disney said in a statement to the Daily Telegraph.

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October 14, 2004

Verizon lawyer chats about online privacy and RIAA case

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Posted by Jason Schultz has the transcript of an interesting online chat with Sarah Deutsch, a lawyer for Verizon, about online privacy, including the Supreme Court's recent denial of cert. in the RIAA v. Verizon case about DMCA subpoenas and file-sharers:

U Boulder, CO: I have heard that the RIAA has technologies that can find illegal downloaders online and track them. Is this stuff legal? Isn't that hacking? Do ISPs allow this kind of software on their networks?

Sarah Deutsch: The RIAA, MPAA and even the pornography industry (acting as a "copyright owners") are increasingly hiring Internet "bounty hunters" who use search tools, including search bots to scour the Internet for infringing files. Just like those mechanical spiders in the movie "Minority Report," the spiders go into users' shared folders on their hard drives and match file names to the names of copyrighted songs and movies. Unfortunately, the bots make mistakes,which is why one ISP received a notice demanding that they terminate a subscriber who had allegedly downloaded the Harry Potter movie when the attachment was actually the Harry Potter book report.

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Banner Day

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Frank Field is having one, digging up the most interesting news items of the day so you don't have to. Check it out.

Speaking of interesting news items, you might also want to check out The Regular, by the good people at Downhill Battle. It debuted today, and aims to be the "Slashdot of politics" -- covering everything from the presidential debates to IP activism. I can't tell yet how it's gonna work -- but I wouldn't put it past these guys to succeed.

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Senator McCain shows spine on IP; defends controlling your own TV/DVR

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Posted by Jason Schultz



OCTOBER 11, 2004


• Mr. President, I wish to briefly remark on H.R. 2391 and H.R. 4077, a package of bills referred to as the “Intellectual Property Protection Act of 2004.” I have objected to the further consideration or passage of these bills by unanimous consent.

• From the text of the bills that have been available to date for Senators to review, I believe that one part of this broad legislation, the Family Movie Act, may actually harm consumers while appearing to help them. To be clear, I support the stated goal of the Act’s authors: immunizing from legal challenges a technology that enables parents to skip offensive material from prerecorded copies of films and television. While I applaud the merits of their stated intent, I fear that the very exemption designed to achieve this laudable goal simultaneously creates an implication that certain basic practices that consumers have enjoyed for years -- like fast-forwarding through advertisements -- would constitute criminal copyright infringement. I note that Consumers Union and Public Knowledge, as well as a host of others parties interested in protecting consumers, share my concerns.

• Americans have been recording TV shows and fast-forwarding through commercials for more than thirty years. Do we really expect to throw people in jail in 2004 for behavior they've been engaged in for more than a quarter century?

• I look forward to working with my colleagues in this chamber to address not only these concerns, but also the uncertain liability created for manufacturers that bring other innovative and pro-family products to market in the face of continual threats of extinction from powerful interests who seek to thwart their entry.

• Mr. President, for these reasons, I do not intend to remove my hold on these bills until I am satisfied that consumer interests have been protected in this legislation.

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Olsen Twins take a page from Arnold's playbook; threaten t-shirt maker

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Posted by Jason Schultz

IPnewsblog notes:

The Olsen twins are threatening legal action against a California design company unless it ceases the production and sale of a popular t-shirt featuring a drawing of Mary-Kate and the words underneath "save mary-kate." The t-shirt is pictured on the link and was produced after Mary-Kate Olsen, 18, entered a facility in June 2004 for treatment of an alleged eating disorder. The letter sent was sent from the Olsen twins' attorneys to the company, contending that the t-shirt violates the Olsens' publicity, privacy, and trademark rights.

Reminds me of Arnold's threats over the Governator Bobblehead doll.

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October 13, 2004

DoJ Endorses PDEA, Induce Act

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As most of you are no doubt aware, the Department of Justice yesterday issued a lengthy report (PDF) outlining its plans for taking the war against intellectual property "theft" to the next level. So what is John Ashcroft's answer to our copyright infringement problems? As Declan McCullagh writes, "more spending, more FBI agents and more power for prosecutors." Meaning, of course, H.R. 4077/PDEA, which among other things threatens to make automatically skipping commercials illegal, and the widely reviled Induce Act, which would put technological innovation into a deep chill and/or send it overseas.

Ah, but that's not all. The plan also includes:

  • Wiretaps for some IP crimes;
  • "Updating" the law so we can charge intellectual property criminals under US law anywhere in the world, no matter what the local regulations say; and
  • Education programs to teach children "respect" for copyright law, so they can "Just Say No to Copyright Infringement."

The DoJ is evidently claiming that the new "war" will be as "forceful and aggressive" as the war on drugs. And no doubt just as effective.

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October 12, 2004

FvL on Grokster Cert Petition

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Posted by Ernest Miller

As I noted on The Importance Of..., the MPAA and RIAA have filed a petition for a writ of certiorari with regard to the MGM v. Grokster decision (MPAA/RIAA Files Petition for Cert in Grokster Case). Over on Deeplinks, Fred von Lohmann explains some of the reasons why granting cert would not be a good idea (Big Media Attacks Betamax in Court):

Often described as the Magna Carta of the technology industry, the Betamax doctrine makes it clear that innovators need not fear ruinous litigation from the entertainment industry so long as their inventions are "merely capable of substantial noninfringing uses." In today's petition, the entertainment industry urges the Court to reverse that established rule and impose on innovators a "legal duty either to have designed their services differently to prevent infringing uses, or to take reasonable steps going forward to do so." Of course, on that view, Sony's Betamax VCR would never have seen the light of day, since Sony could have designed it differently (in fact, the movie studios suggested back in 1978 that Sony implement a "broadcast flag" system!) or modified it after Disney complained.
I certainly hope that the Supreme Court recognizes that courts aren't the best place to decide what innovation is permissible and what innovation is not and declines the cert petition.

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Supreme Court Denies Cert in RIAA v. Verizon

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This just in: the Supreme Court has denied cert in RIAA v. Verizon, the case in which the recording industry initially won the right to unmask an anonymous KaZaA user with a special non-judicial, PATRIOT Act-like subpoena under the DMCA. The DC Circuit reversed (PDF) that ruling, but the RIAA appealed. Now the Supreme Court has declined to hear the case. It's wonderful news.

Despite the rhetoric surrounding P2P, this case is not about filesharers "hiding" from the law. It's about making sure that the law keeps protecting innocents until there is a bare minimum showing of illegal activity. Just because someone suspects you of being a "pirate" -- or would like to use claims of copyright infringement to gain easy access to your personal information -- does not make you guilty until proven innocent.

The DMCA allows anyone simply claiming copyright infringement the ability to get your name, address, phone number, etc. This removes critical constitutional and privacy safeguards on the mere assertion of wrongdoing. Many people are angry about the PATRIOT Act for removing these kinds of safeguards. Shift the context to filesharing, and they tend to shrug it off because it's about "pirates." But it's the same Consitution, and the same rights are being eroded.

Later: Wendy Seltzer @ Deep Links: "The Supreme Court's refusal to take the case leaves the DC Circuit's well reasoned opinion as law: The DMCA doesn't give the RIAA a blank fishing license to issue subpoenas and invade Internet users' privacy."

Later #2: Sarah Deutsch: "This decision means copyright holders and their representatives -- or identity thieves and stalkers posing as copyright holders -- will not be allowed to obtain personal information about Internet users by simply filing a one-page form with a court clerk."

Later #3: The Associated Press makes a mistake right off the bat in its coverage, claiming that the Supreme Court "sidestepped a dispute over whether Internet providers can be forced to identify subscribers illegally swapping music and movies online." Without a court, or indeed, any showing whatsover, we can't say these subscribers have done anything illegal. This dispute is about whether Internet providers can be forced to identify subscribers accused of swapping copyrighted files, on the mere rubber-stamped say-so of the copyright holder.

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October 8, 2004

Copyright Mashup in the Works

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Not the kind of mashup DJ Dangermouse is famous for. The kind Congress is infamous for. Meet the proposed end-of-the term substitute for H.R. 4077 (PDF) --a.k.a., PDEA Plus.

Ernie has the scoop on what the PDEA is bad for. Below is the official summary of what the Hatch/Leahy-sponsored "PDEA Plus" comprises. And here is an action alert from the good people at Public Knowledge, warning that movement is likely "possibly today or tomorrow (yes, even Saturday!)."

Title I, the "CREATE Act" (H.R. 2391/S. 2192). This title includes the version of the CREATE Act that has passed both the House and Senate.

Title II and Title III, the "Piracy Deterrence and Education Act of 2004" (H.R. 4077). This legislation passed the House on September 28, 2004, and includes the Family Movie Act, as well as legislation substantially similar to the ART Act, S.1932. The substitute modifies the Family Movie Act with bipartisan, compromise language that has been negotiated among the cosponsors and stakeholders. The substitute also includes Section 5 of the ART Act, "Civil Remedies for Infringement of a Work being Prepared for Commercial Distribution," which directs the Register of Copyrights to create a registry of pre-release works in order to better address the problems associated with piracy of creative works before they are offered for legal distribution. Title III designates the national tree as the oak tree.

Title IV, the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004" (S. 2237). The bill passed the Senate by Unanimous Consent on June 25, 2004. The substitute makes one minor change to clarify that the civil enforcement authority created by the legislation and to be exercised by the Attorney General is to be used only in lieu of criminal prosecution.

Title, V, the "National Film Preservation Act of 2004" (based on S. 1923). The National Film Preservation Act will reauthorize a Library of Congress Program dedicated to saving rare and culturally significant films. The language in the substitute includes compromise funding levels to allow the National Film Preservation Board and the National Film Preservation Foundation to continue its important work.

Title VI, the "Preservation of Orphan Works Act" (H.R. 5136). This provision corrects a drafting error in the Sonny Bono Copyright Term Extension Act. Correction of this drafting error will allow libraries to create copies of certain copyrighted works, such as films and musical compositions that, in their last twenty years of copyright term, are no longer commercially exploited, and are not available at a reasonable price.

Title VII, the "Enhancing Federal Obscenity Reporting and Copyright Enforcement Act of 2004" (S. 1933). This measure was reported by the Judiciary Committee on May 20, 2004. The substitute language includes Section 1, Section 2, Section 3, and Section 5 of the EnFORCE Act.

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New Patent-Battle Hotspot: WiFi

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Acacia is claiming patent rights to "the methods wireless ISPs, WLAN aggregators and other Wi-Fi networks use to redirect users to a common login web page," e.g., the technology behind gateway page redirection. And that Wi-Fi hotspot operators must pay the company $1,000 a year or face a lawsuit.

Says Acacia executive VP of "business development"/general cousel Robert Berman: "Anybody who operates a hotspot with redirection can assume they'll hear from us."

Surprised much? I didn't think so.

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BusinessWeek: Are the Copyright Wars Chilling Innovation?

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Posted by Jason Schultz

Interesting Commentary in BusinessWeek on the follies of the RIAA's war on innovation:

Today's turmoil over copyrights contains a disturbing new twist, however. Digital technology -- from MP3 players to software that makes it easy to build Web pages -- shatters almost all of the technical barriers to duplicating and sharing copyrighted works. That has caused unparalleled anxiety among copyright holders. As a result, music and movie companies have adopted a strategy of targeting digital technology itself as well as those who design it and those who use it.

In time this could threaten the delicate balance between copy protection and technical innovation. The intent of copyright law in the U.S. is to promote learning and innovation while giving artists, musicians, and writers a limited monopoly on their work. The goal isn't to assure that artists or intellectuals make oodles of cash.

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October 7, 2004

Induce Act Runs Out of Gas

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Ted Bridis @ AP catches up with Ernie on the Induce Act, which is officially stalled -- for now.

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...the latest issue of EFFector is out, and will soon be posted online. Below, an item likely to be of interest to Copyfight readers following the BnetD case:

: . : . : . : . : . : . : . : . : . : . : . : . : . : . :

* Help EFF Fight for the Freedom to Innovate - Give to the
BnetD Defense Fund!

Fair use was recently dealt a harsh blow by a Federal Court
decision that held programmers liable for creating free
software designed to work with commercial products. The
court ruled that creating BnetD - open source software
that provides a way for gamers to play popular Blizzard
games online - violates the Digital Millennium Copyright
Act (DMCA) and the company's end-user license agreement
(EULA). According to the court, building alternative
platforms for legitimately purchased software should be

That's not good for innovation, and it's definitely not
what copyright law is for. The three authors behind BnetD
built something for free that added value to their
lawfully purchased software. This kind of creativity
shouldn't be stifled; it should be applauded.

If this decision is allowed to stand, other innovators
will have to be even more wary of anti-competitive
companies with hungry lawyers.

EFF is appealing the decision, and we need your help. Our
legal work in this case is done for clients who can't
afford representation, so we depend on people like you
for funding. If you value technical innovation and
balanced copyright law, please donate to the BnetD
Legal Defense Fund today:

Contribute here.

Thank you for your support!

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October 6, 2004

Creative Commons Blows Up

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In the best sense, of course -- it hit Newsweek. Bravo.

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Meet the New Induce Proposal, Just as Bad as the Old Induce Proposal

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Edward Felten and Derek Slater examine the latest draft (PDF) of the misguided Induce Act and deliver a one-two punch:

Felten: "This draft is narrower than previous ones, in that it tries to limit liability to products related 'peer-to-peer' infringement. Unfortunately, the definition of peer-to-peer is overbroad....By this definition, the Web is clearly a peer-to-peer system. Arguably, the Internet itself may be a peer-to-peer system as well."

Slater: "It could also apply to Windows networking, which allows sharing of folders over a network that certainly could be considered 'public.' Furthermore, it could apply to IM systems that allow people to send files. 'Locate and obtain' is in no way restricted to your typical search interface; consider an IM service with a chatroom called 'Share Music'(this is basically how sharing on IRC works, with bots that you can query). Even if you think they could successfully defend themselves, they could still be dragged through a money intensive lawsuit. And the boundaries of this definition will be continually pushed my new technologies.

Shall we go on?"

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CNN Abusing DMCA Takedown?

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Glenn Reynolds: "More Crushing of Dissent: Following in the footsteps of the New York Times, CNN has filed a DMCA complaint trying to shut down the National Debate over its CNN parody.

CNN should be ashamed. And perhaps they should read this."

The MPAA, meanwhile, sounds not the slightest bit embarrassed or regretful about having misfired at Linux Australia, brushing off the suggestion that it could be prosecuted under spam laws and boasting that "99.9999 percent of individuals who get them are infringing on the works and they certainly not soliciting a notice of infringement from us or their ISP."

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October 5, 2004


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Siva Vaidhyanathan is blogging today @ Eric Alterman's Altercation, and delivers a welcome call-to-arms to readers to join EFF in fighting the Induce Act:

If you are not familiar with the Electronic Frontier Foundation, you should be. This cyber-rights organization is working hard to keep freedom and information flowing over this very medium that you are enjoying right now. The EFF has scored two major victories in the past few months.

First, EFF lawyers liberated Woody Guthrie's song "This Land is Your Land" by showing the publishing company that controls its rights that the song is actually based on multiple works in the public domain, and itself entered the public domain since the early 1970s.

Then last week it took down Diebold, the incompetent electronic voting machine company that had tried stop students and journalists who dared to criticize the company by accusing them of violating the Digital Millennium Copyright Act.

Now EFF is trying to stop a stupid bill making its way through the US Senate. It's called the Induce Act, and it could potentially threaten innovation within industries that produce goods that COULD be used to facilitate copyright infringement: your photocopy machine, fax machine, personal computer, and the iPod.

Thanks, Siva!

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Copyright v. Democracy

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My former boss at the Berkman Center, the thoughtful, energetic and inspiring John Palfrey, explains what the Diebold case teaches: "In the Federalist Papers, James Madison wrote of the Congress' copyright authority that 'The utility of this power will scarcely be questioned.' But the scope of the power must be questioned, just as the students did. Copyright abuse can cost society dearly, especially when issues core to the functioning of our democracy are at stake."

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Another Strike at IP Uber Alles

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Laura Murray has a new article warning Canada not to sign the pending WIPO Internet treaties and explaining the difference between protecting IP for its own sake and protecting culture and creators. Below, a few intriguing snippets:

On copyright rhetoric:
Spend more than a few minutes browsing Canadian court rulings, policy materials, or public hearings on copyright, and you will come across somebody seeking or promoting "protection." "Protection" seems to be a good thing, and somehow copyright provides it, or should be providing it. But protection of what? Protection from what? ... Only a few argue for protection of consumers or those whose creativity builds on copyrighted works, and fewer still the citizenry or the public domain.

On "creator" vs. "consumer":
Even the metaphor of balance has its limits because it posits users and creators as distinct entities placed on either side of a fulcrum. In fact, as many have pointed out, we cannot draw a firm distinction between "creators" and "users": every single person alive on earth is a consumer of culture, and anyone who ever puts pen to paper (or finger to keyboard) is also a creator.

On copyright in education:
Even those who would not presume to the title of artist may seek to respond creatively to pop culture, however clumsily, and a copyright system must acknowledge and enable this participation in cultural production. This is where education comes in: one might hope for a copyright law that would acknowledge students' and teachers' role as participants in culture, not just purchasers of it.

On the copyfight in Canada:
[There] has been, to date, little public activism in Canada concerning copyright reform. It is true that when the government asked for public comment on copyright reform (and specifically digital issues) in 2001, they were surprised to receive 700 submissions. Of these, some 250 consisted of form letters from members of the Electronic Frontier Foundation, and there were a few other submissions from concerned individuals or experts, but most came from educational, industry, and cultural organizations, and many of these piggybacked on each other [16]. Only in the past year has the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa established a profile on the Internet and become active in legal and policy intervention. Michael Geist is the only scholar commenting regularly in the Canadian media on public interest issues in copyright policy and cases.

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October 4, 2004

Massive Victory for Copyfighters

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Cory has very big news, and puts it best:

For years now, progressive elements and copyfighters have been trying to get the UN's World Intellectual Property Organization to start thinking about ways of promoting creativity and development instead of just IP -- to get the organization to see that its raison d'etre is a better world, and that stronger IP laws is just one way of accomplishing that -- and that IP only works sometimes.

We've been foiled at every turn by the maximalists, the movies studios and the trademark offices, the patent-cops and the recording industry lobbyists and the IP lawyers' associations.

Which is why this is such good news: at the general session of the WIPO in Geneva this weekend, the Assembly as adoped a decision to put development and the promotion of creativity front-and-center in its goals. That means that from now on, WIPO isn't an organization that blindly supports more IP no matter what, but rather one that seeks to improve the world by whatever tool is best suited to the job.

More information available here; previous Copyfight coverage here and here.

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Oregon's (Donald) Duck

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Posted by Ernest Miller

Oregon_Ducks_2.gifAn interesting story about a Disney character's use as a university mascot (Donald endures in hearts of Duck fans). It was a simpler time:

The university has had a web-footed mascot since at least the 1920s, when a live duck named Puddles surfaced at football and basketball games. A duck emblem was in use by 1933, and by 1936 it was starting to look more like Donald, catching the attention of Disney officials.

In 1947, Oregon Athletic Director Leo Harris shook hands with Walt Disney himself on an agreement to allow Oregon to use Donald as the mascot. The deal was put in writing in 1974 in a licensing agreement giving the university limited use of Donald at athletic venues.

Wow. A good-natured handshake agreement for almost thirty years.

Of course, such things could not be allowed to continue:

In 1991, the agreement was expanded to allow wider use of the likeness on sweatshirts, glassware and other merchandise.

The frenzied "charging duck" pumping his fists inside a large, eight-sided letter 'O' was a ubiquitous campus logo for years. It was eventually replaced as the UO marketing machine grew and felt confined by Disney's restrictive contract, which forbids the school from selling items with the Donald Duck logo beyond the Oregon border.

Although Donald is much beloved by Oregon fans, a stylized "O" will have to do for out-of-staters.

Ah well.

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Tackling Canada's Cultural Deficit

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Michael Geist on why Canada should follow the UK, not the US, for culturally healthy copyright policy:

The United Kingdom provides an excellent model for such policies. In recent months, the British Library has unveiled an ambitious plan to digitize and freely post on the Internet thousands of historical newspapers that are now in the public domain. Similarly, the BBC has established the BBC Creative Archive, which will allow users to download clips of BBC factual programming for non-commercial use, where they can be stored, manipulated and shared.


Policy makers should also recognize that even ratification of the WIPO Internet treaties will not satisfy many rights holders, who have continually sought new rights that might increase their earnings. In the United States, the U.S. Congress has recently been considering proposed legislation called the Induce Act, which could conceivably regulate a wide range of electronic equipment including popular devices such as Apple's iPod.

Canadians can expect similar proposals to surface here as rights holders have left little doubt that the WIPO Internet treaties represent only the tip of the copyright reform iceberg.

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October 3, 2004

Click Here to Allow Unlawful Restraint of Trade

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John T. Mitchell, who writes beautifully about the damage that code + law (PDF) can do to the public's side of the copyright bargain, has a short-but-powerful response to the BNetD decision (PDF) over @ Freedom-to-Tinker:

When a copyright owner uses the copyright monopoly as leverage to extract an enlargement of its rights even further by conditioning the license upon a waiver of rights granted by law, it thumbs its nose at Congress and enters an agreement in restraint of trade.

In effect, Judge Shaw has ruled that none of the limitations Congress placed upon copyrights (Sections 107-122) are worth the paper they are written on if the copyright owner can get the public to agree to give them up as payment for access to the works.

A travesty, and one that must be appealed.

Speaking of limitations on copyright, Derek Slater brings news that fellow Berkman-ite Dotan Oliar has written a new paper (PDF) on the roots of the Copyright Clause, revealing that (surprise) "promote the progress of science and useful arts" does indeed represent a limit to Congress's power to grant intellectual property rights. Which means, of course, that the courts ought to enforce this limitation. According to Dotan, this requires that we develop a "concept of progress for the Clause" -- and he explores several ways that the courts could do so.

Sounds fascinating. Thanks, Derek.

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October 1, 2004

Click Here to Lose Your Fair Use Rights

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Ernie has a great post gathering commentary & analysis of yesterday's crushing defeat for fair use/reverse engineering/open-source programming in the BnetD case. He also offers his own .02, highlighting the decision's oddities:

If you reverse engineer for interoperability, in order to do the same thing as another program, apparently that extends "into the realm of copyright infringement." What that means is unclear. Why it takes away your defense under § 1201(f)(1) is similarly unclear. Is the program infringing or not? If not, why don't you get the exemption?

What the heck can you use the reverse engineering exemption for under this logic? You can interoperate, but only for purposes that are entirely different? Huh?

I also like the part that open source software is more likely to violate the DMCA because it has "limited commercial purpose." You see, if you don't or can't sell it, you are even more evil according to this ruling.


Madisonian Theory, meanwhile, manages to capture all of its wrongness in a single sentence: "It's a disaster of an opinion, from the court's uncritical acceptance of Bowers v. Baystate as authority for enforcing a 'no reverse engineering' shrinkwrap license, to the court's whimsical application of the DMCA's anti-circumvention rules to the so-called 'secret handshake' between each game copy and the authorized server software."

It seems to me that most unfortunate thing about this ruling is the power it gives companies to crush the competition. What copyright giveth (fair use, reverse engineering for interoperability), contract via clickwrap buttressed by the DMCA taketh away. A reader over @ Freedom-to-Tinker observes that "This ruling even implies that the only way to do it is to ask the copyright holder for explicit permission. I'd love to see that: 'Mr. Software developer, I'd like your permission to become your competitor.'" Me too. And pigs growing wings.

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