Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Wendy Seltzer
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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

November 30, 2004

By the Way

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The dreadful Induce Act may temporarily be shelved, but the Induce Act Blog isn't. It provides a near-constant stream of news about/analysis of pending IP legislation, and it does it very well.

Comments (1) + TrackBacks (0) | Category: Misc.

How to Get In the Game

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One way: give up today's (and/or tomorrow's) wildly over-priced Starbucks latte and make a donation to IPac.


Wired has a nice new piece explaining why this will make a difference for the copyfight in the US, including a few words from uber-copyfighter Rep. Rick Boucher (D-VA) -- one of the six pro-balance candidates IPac supported in this past election.

Later: Chris Cohen:

IP is an area of legislation where politicians can hand huge rewards to companies at the expense of the public without really getting any negative attention. People just don't know how important IP law is, don't realize they are actually the ones losing out, or don't care because IP doesn't make for a great above-the-fold story. As the copyright law has expanded so massively in the last decade, however, the public's interest in IP has really been piqued.
It is only natural that eventually an IP PAC would pop up. It would obviously make a huge difference to the future direction of IP law if the public took such an interest in IP that politicians were forced to react, and particularly if donors other than the MPAA and the RIAA began to consider IP issues in who they supported financially. That will be a next step that may be a few years off but appears to be happening.

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

Copyright Reform Is Not a Spectator Sport

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Michael Geist again, with a message for Canadian citizens that applies equally anywhere that copyright extremism is on the march:

It is time for teachers, researchers, education administrators, librarians and students to speak out loudly against proposed policies that threaten the use of the Internet within Canadian schools by establishing unnecessary copyright license fees that seek to extend the term of copyright to the detriment of Canadian historians, and that introduce new legal protections that threaten to chill scientific and security research. They should further seize this opportunity by presenting a positive vision of reform that could benefit Canadian research and the broader community.

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

November 29, 2004

When EULAs Bite

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Ben Edelman bites back.

Later: James Grimmelman: "This agreement, whether characterized as a 'license' to use Gator's copyrighted software or a 'contract' between you and Gator, is still a manipulative, low-down, dirty, no-good document."

Later #2: Edward Felten: "I would love to see a 'EULA doghouse' site that listed products with excessive EULAs, or that rated products by the content of their EULAs. At the very least, EULA evaluation could become standard procedure for people writing reviews of software products. Unfortunately, there hasn't been much progress on this front."

Comments (0) + TrackBacks (0) | Category: Misc.

Piercing the P2P Myths

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According to University of Ottawa law prof/copyfighter Michael Geist, rumors of the recording industry's death by peer-to-peer file sharing are greatly exaggerated.

Writes Professor Geist [Toronto Star, reg. req.]:

[Perhaps] the best evidence yet of the tenuous link between file sharing and music sales comes from the music industry's performance following the Federal Court of Canada's file sharing decision denying the CRIA's [ed.- Canada's "RIAA" ] demand to disclose the identities of 29 alleged file sharers at the end of March of this year. Despite the dire predictions that the decision would decimate music sales, the six-month period following the decision saw CD unit sales jump by 12.4 per cent in Canada over the prior year.

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

It's Starting to Look a Lot Like Eldred

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Or at least, that's what federal Judge Maxine Chesney was evidently thinking when she dismissed [PDF] Kahle v. Ashcroft, a challenge to a number of laws extending/expanding copyright. The decision begs the question: Just how twisted (or more appropriately, "contorted") does copyright law have to get before the courts can step in?

More from John Borland at ZDNet here.

Update: Joe Gratz, who personally helped out with the Kahle challenge this past summer: "Under Chesney's simple reasoning, any law that creates more or stronger copyrights is rationally related to the progress of science and automatically passes constitutional muster. Because all of the challenged statutes grant more rights to copyright holders, Chesney reasons, they must all be immune to further constitutional scrutiny.

Chesney is wrong, and I wish Chris Sprigman, Larry Lessig, and the rest of the Kahle team luck in their appeal to the Ninth Circuit."

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

Beyond TiVo (Or Not)

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What benefits does "competition" in the digital video recorder (DVR) market bring consumers in the post-ReplayTV litigation world? If the details in this USA Today piece on DirecTV's DVR-in-planning are any indication, not many.

We knew we couldn't expect to see a major breakthrough in functionality; after all, the copyright cartel has stuck a fork in the DVR, and it wouldn't take very kindly to anyone daring to innovate "outside the TiVo." Here's what we get instead:

  • identical functionality (surprise!);
  • except not really, because you won't be able to jump over commercials entirely using the 30-second hack;
  • video-on-demand included as part of the service; and
  • it'll be cheaper to get video-on-demand + "TiVo" -- nice if you're already purchasing both separately.

And finally, the most exciting new feature of all (at least according to Abe Peled, the CEO in charge): you get to pay for your pay-per-view movie when you watch it, rather than when you first select it for purchase. So you can, you know, change your mind and stuff.

For comparison's sake, check out the list of features you could have if you decided to make your own DVR from scratch -- including the "feature" companies like HBO take away in order to sell back to you: the ability to make fair use of recorded programs and movies.

Comments (0) + TrackBacks (0) | Category: Tech

November 23, 2004

Not That the IP Extremists Are Gonna Take That Lying Down

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As IP Watch warns, the US Is Determined to Attack Within WIPO. Or something like that.

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

US Proposal on Webcasts Sidelined

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Good news out of the WIPO meetings we've been following: "Member states of the World Intellectual Property Organisation (WIPO) have sidelined a US government proposal to extend copyright protection for television and radio productions to cover webcasting, a WIPO official said on Monday."

Said Cory, before presenting an open letter from 20 technology companies opposing the inclusion of webcasters' rights, "This coalition shatters the illusion that there is a technology consensus on this issue."

Reads the letter, "One proposal within the Treaty would extend these pseudo-copyrights to the Internet, by means of a controversial 'Webcasting Provision.' While there has been very little support from the national delegations for this proposal, the insistent voice of self-styled representatives of the technology industry has been loud enough to see to it that this proposal has persisted through draft after draft of the Treaty."

Admitted WIPO Deputy Director General Rita Hayes after the proposal failed, "There was no support for it."

I love it when a negotiation process like this actually works, 100 per cent against the odds.

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

November 22, 2004

Judging IP Policy on Its Merits

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Cory beat me to the punch, but this new column by James Boyle is too good not to risk redundancy. The theme, as Cory writes, is "the crazy way that IP policy gets made" -- that is, without proof that it works for its intended purpose (providing a necessary incentive for innovation). The particular object of Boyle's scorn is copyright-like protection for databases -- something Europe had adopted and we in the US have rejected, but only by the skin of our teeth.


Imagine a process of reviewing prescription drugs which goes like this: representatives from the drug company come to the regulators and argue that their drug works well and should be approved. They have no evidence of this beyond a few anecdotes about people who want to take it and perhaps some very simple models of how the drug might affect the human body. The drug is approved. No trials, no empirical evidence of any kind, no follow-up. [...]

Even the harshest critics of drug regulation or environmental regulation would admit we generally do better than this. But this is often the way we make intellectual property policy.

So how do we decide the ground-rules of the information age? Representatives of interested industries come to regulators and ask for another heaping slice of monopoly rent in the form of an intellectual property right. They have doom-laden predictions, they have anecdotes, carefully selected to pluck the heartstrings of legislators, they have celebrities who testify - often incoherently, but with palpable charisma - and they have very, very simple economic models. The basic economic model here is "If you give me a larger right, I will have a larger incentive to innovate. Thus the bigger the rights, the more innovation we will get. Right?" Well, not exactly.

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

Jumping Off the Omnibus

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Absolutely fantastic news: the aspects of the copyright mashup bill that had so many of us worried were dropped before it passed in the Senate this weekend. The omnibus is now a minibus -- S 3021 [PDF].

Kudos to Public Knowledge, the Home Recording Rights Coalition, the Consumer Electronics Association, NetCoalition, and many others for their hard work in this fight.

Says Gigi Sohn in the PK press release:

Consumers won a major victory when the Senate passed legislation removing the most egregious elements of the omnibus copyright bill that had previously been under consideration. We strongly support the version of the Family Movie Act included in the bill, which gives families more control over how they watch movies and television, preserving the right to skip over commercials. The bill will benefit consumers, both in their entertainment choices now, and from the innovation in technology that will result in coming years.

We are also pleased that HR 4077 was dropped from the bill that passed. That legislation would have lowered the standard for copyright infringement. The Senate also wisely removed the PIRATE Act, which would have made the government the entertainment industry’s private law firm at taxpayer expense.

The Senate should also be commended for including in the bill legislation helping to preserve orphan works and reauthorizing the National Film Preservation Board. These features of the bill are important steps in preserving our nation’s culture. We look forward to working with Congress in coming sessions to make further progress in advancing consumer interests and preserving copyright balance.

Reuters has more; so does CNet.

Later: Derek Slater: "Take note again of how much better the public interest is being represented today than just a few years ago. Still playing a lot of defense, but at least it's relatively successful defense."

Later #2: Wendy Seltzer: "While much has been stripped out of the end-of-year copyright bill that passed the Senate over the weekend S. 3021, much that's harmful remains. Particularly egregious is a provision that hasn't gotten much attention, the 'Fraudulent Online Identity Sanctions Act.' Ostensibly aimed at infringers who hide behind false domain name registrations, the provision seriously penalizes those who merely want to protect their privacy."

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

Perfect 10 Sues Google

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Last we heard from Perfect 10, the porn purveyer failed miserably in its Induce Act-like attempt to hold credit card companies liable when people use the cards to purchase access to purloined Perfect 10 pics.

Andrew Bridges, a partner in the firm representing MasterCard, observed that the company's attempt to apply the Napster decision to the case shows how law made in extreme cases -- e.g., to fight peer-to-peer file sharing -- can later be applied in different scenarios (*cough* Induce).

"A lot of copyright [litigation] is being pushed by pornographers who are trying to take advantage of cases brought by more mainstream media," Bridges said.

Now Perfect 10 is at it again, this time filing a filing a complaint (PDF) against a company that it presumably hopes will be an easier target: Google.

Writes John Palfrey:

What's intriguing about Perfect 10's claims, and I suspect their best shot at differentiating their claims from previous assaults on search engines, is the way they're trying to hook nearly the entire set of claims on (in a general sense) the notion that Google gets adwords revenue thanks to the porn company's content that's been copied and distributed on "stolen content websites" who in turn pay Google (so one would presume from the complaint, anyway) for click-throughs -- see paragraphs 27 - 34, then claims 2 (contributory infringement of copyright) and 3 (vicarious infringement of copyright) and the subsequent trademark, unfair competition, and right of publicity claims.

In short, Perfect 10 says: Google is profiting -- a lot -- from the bad acts of others and they should stop doing it and pay us for what they've done.


Reading it in the wake of the Jeff Jarvis interview I linked to below, I can't help but imagine how he might respond: "If 'bad actors' can profit this handsomely from the 'distribution' of copyrighted works via P2P or search, why can't we find a way for the 'good actors' -- the copyright holders -- to profit just as much?"

Later (1:20 p.m.): Wendy Seltzer @ Legal Tags: "Perfect 10's complaint doesn't look so strong, but its basic arguments are recurring ones in the online debates: that IP owners should be able to deputize intermediaries as their copyright, TM, etc. cops. (It's no coincidence that Perfect 10's lawyers include Russ Frackman, counsel to the record labels in MGM v. Grokster.) Sure, holding everyone in the chain liable might help stop infringements, but it would also kill search engines, whose value comes from helping users to find whatever they're looking for, if it exists on the Web."

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

November 21, 2004

The Future of Digital Media

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Ernie interviews Jeff Jarvis in the first of a series on our favorite subject:

JJ: I do believe in the need for copyright. I flatter myself to think that I am a creative person; if I ever get off my butt and write that successful book or movie, then I believe my child should be able to benefit from it just as much as if I had instead bought and tilled a farm. As a media executive, that's clearly in sync with my interests. But I do believe that the industry and Congress are going overboard with such efforts as DMCA and INDUCE. Yet that's not the worst of it. They are being strategically stupid. Instead of trying so hard to find ways to keep people from consuming our products (as we used to say), wouldn't it be so much smarter -- and more lucrative -- to find ways to exploit this clear desire by the people to control and distribute our stuff? Instead of locking down a TV show so it can't be distributed, why not embed ad calls and sponsorhip pings (or subscription codes) in it so we make money every time it is copied and shipped to a friend? Then it would be in the interests of content creators to see their content distributed as widely as possible.

Comments (5) + TrackBacks (0) | Category: Interesting People

Copyright Odyssey 2010

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Ed Foster takes the MPAA lawsuits and the ever-ratcheting penalties for copyright infringement to their illogical conclusion, imagining what kind of punishment lies in store for us when/if file sharing actually harms the off-the-charts successful movie business:

Members of the jury, it is my sad duty today to now present the closing arguments in the prosecution's case against the defendant you know as Ms. X. I say it's sad because we all hoped that the passage of new copyright statutes last year -- popularly known as the Maintaining Mickey Mouse Mandates Act of 2010 -- would sufficiently deter crimes of this nature. As we have seen in this court, that unfortunately did not prove to the case with Ms X.

The facts here are not in dispute. On or about a week ago last Sunday, Ms. X did willfully and illegally obtain on the Internet a pirated copy of the 2008 cartoon feature 'Cinderalla Meets the Little Mermaid.' You heard the government's expert witnesses testify that secret detection technology indicated the film was indeed subsequently played on her television set. And you heard the defendant herself freely confess that she and she alone was involved in this heinous crime.


As this is one of the first prosecutions under the MMMM Act, you may also not understand why the defendant is not represented by counsel. Let me just assure you that the intent of Congress in this respect was very clear. Movie piracy is a crime that threatens the very fabric of American society. There can be no defense.

Finally, I know even the most hard-hearted of you might feel the state is going little too far in asking for the death penalty in this case. But under the MMMM Act, we in fact have no choice. If the infringement is willful, it is a capital offense.

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

Fair Use -- for $350

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Planet Simpson:

I paid $350 (in US funds) to use a handful of quotes from Radiohead songs in my book. [...] I was not required to fork over a single dime to quote from The Simpsons itself, nor to quote at length from Tony Hendra's excellent book Going Too Far, nor to quote from Foucault or Mark Twain or David Foster Wallace. But to use 87 words from the collected lyrics of Radiohead? Three hundred and fifty simoleons. Roughly $4.02 per word. (Which, incidentally, is more than double the highest amount I've ever been paid per word to write for a magazine or newspaper.)

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

November 18, 2004

Journalism Happens

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Even on weblogs (gasp!).

Congratulations to Carl Zimmer for winning an American Association for the Advancement of Science's 2004 Science Journalism Award for his excellent Corante weblog, The Loom.

Comments (0) + TrackBacks (0) | Category: Kudos

Whoomp, There It Is

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Update (Nov. 18, 3:45 p.m.): Correction -- Cory is blogging at Deep Links after all.

Contrary to what I wrote below, it looks like all of the running notes from the WIPO meeting on the controversial Broadcast Treaty will be posted in one place: the Union for the Public Domain.

A few intriguing snippets:

A delegate from Brazil, on day one of the meeting:

IP protection should not be an end in itself, nor should upward harmonization proceed irrespective of countries' levels of development. Action is needed in all countries to ensure costs don't outweigh the benefits of IP protection. New norms in the field of copyright and related rights can have a serious impact on the development and social policies of countries in several crucial areas. The provisions of any treaty in this field must be balanced and taken on board the interests of consumers and the public at large.

Access to information and knowledge sharing are essential elements to foster innovation and creativity in the informatin economy. Adding new layers of IP protection to the digital environmment could seriously obstruct the free flow of info and scuttle efforts to create new arrangemets to promote innnovation and creativity.

A delegate from Chile, on day two:

We recognize the usefulness of TPMs [ed. - WIPO-speak for digital rights management, or DRM] for protecting authors' rights and related rights. We're also aware that the application of past treaties with similar provisions have given rise to problems regarding the use of works in the public domain and the legitimate use of protected works. We need to find a way to be sure that these measures don't unduly effect the public domain.

On a more distrubing note, Robin Gross of IP Justice reports that documents prepared by EFF [PDF] and other public-interest organizations have been trashed -- not figuratively, but literally. Copies were found in the waste basket.

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

November 17, 2004

Something Old, Something New, Something Borrowed

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...something Grey.

As Cory says, check it out before the lawsuits start.

Comments (1) + TrackBacks (0) | Category: IP Use

Copyright Wars 101

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Edward Felten, who can make any complex, obscure technical topic lively and accessible, has posted a new lecture that aims to do the same for the current battles over intellectual property online. It's entitled "Rip, Mix, Burn, Sue: Technology, Politics, and the Fight to Control Digital Media," and it was delivered on October 12 at Princeton:
RealPlayer 56K; RealPlayer 350K; WinMedia 56K; WinMedia 350K

Comments (0) | Category: Events

On the Birth of TiVo-tising

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Alan Wexelblat @ Blogbook IP:

Copyfight, among others, has been tracking the varied zigs and zags of TiVO as that company tries to navigate the shark-infested waters of modern electronics. OK, those are [Copyright] Cartel lawyers, not sharks, but who can tell the difference?

Now it appears that TiVo has sold out entirely, but not to the Cartel. Instead, they've climbed into bed with a coalition of 30 big advertisers to implement a "feature" (and I use that word advisedly) that takes away your ability to skip ads. Instead of a simple forward jump, you get to have your commercials overlaid with... wait for it... commercials. But they're TiVo's commercials. Soooo much better.

According to the LA Times story linked above, these "tiverts" as I think I'll call them will pop up during fast-forwards, offering contest entries, giveaways or links to other ads. And of course, this is accompanied by a vast giveaway (well, technically it's probably a sale) of your personal information to the advertisers.

Even if you don't participate in this effort to get you to mainline commercialism, you'll still be part of an intensive "market research" effort in which TiVo will examine your viewing habits on a second-by-second basis (no, I'm not making that up) and then sell THAT data.

"The message we really want to get across," says Davina Kent, TiVo's advertising and research sales manager, "is that we now have a dedicated road map for advertising." It's completely unclear to me whether they have a dedicated roadmap for customer satisfaction.

Another must-read post, on the off-chance you haven't seen it yet: TiVo Sells Your Fast-Forward Button to Advertisers [Cory Doctorow @ BoingBoing].

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

Blogging WIPO 2.0

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The subject line of an email from the Union for the Public Domain (UPD) says it all: "Broadcasters Try to Steal More of the Public Domain this Week at WIPO."

As regular Copyfight readers may remember, the UN's World Intellectual Property Organization (WIPO) took an extraordinary step forward in October when it adopted the Development Agenda -- a proposal that the organization throttle back its "IP Uber Alles" philosophy and tap into its considerable power to spur innovation and help humanity. Starting today, the organization will hold the 3-day Twelfth Session of the Standing Committee on Copyright and Related Rights, and a number of non-government organizations (NGOs), including CPTech, EFF, and the UPD, will be there to urge WIPO to stick to its guns.

My EFF colleague, the indefatigable Cory Doctrow, will pursue four major initiatives on EFF's behalf:

  • asking WIPO to apply public-interest considerations in revising the highly controversial Broadcasting Treaty, which proposes the creation of a new and unnecessary layer of pseudo-copyright protection for broadcasters (see EFF's statement [PDF] for details);
  • joining other NGOs in proposing an alternative draft [PDF] of the treaty -- one that targets the problem (signal theft) rather than adds new rights;
  • advocating filling in the "negative space" at WIPO -- that is, using the organization to establish a miniumum global set of rights for the public as well as for copyright holders; and
  • supporting 20 tech companies that will speak out against the inclusion of "webcasters" in the Broadcasting Treaty.

Here's the best part: we get to tune in and "hear" what's going on as it happens. Below, two spots to watch for live-blogging from behind WIPO's closed doors:

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

November 16, 2004

Copyright Mashup Remains a Threat

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The good people at Public Knowledge have one-stop shopping for learning about and taking steps to oppose the copyright mashup bill that may once again be on the verge of passing.

Michael Grebb @ Wired:

Several lobbying camps from different industries and ideologies are joining forces to fight an overhaul of copyright law, which they say would radically shift in favor of Hollywood and the record companies and which Congress might try to push through during a lame-duck session that begins this week.

The Senate might vote on HR2391, the Intellectual Property Protection Act, a comprehensive bill that opponents charge could make many users of peer-to-peer networks, digital-music players and other products criminally liable for copyright infringement. The bill would also undo centuries of "fair use" -- the principle that gives Americans the right to use small samples of the works of others without having to ask permission or pay.

Update (November 17): PK's updated action alert:

[It's] after the election, and the Senate is holding a lame duck session in an effort to pass what they could not before. This means, just like a Hollywood horror film, many bills are back from the dead. To get them passed, the content industry may try to put all their eggs in one basket and pass one big "omnibus" bill, or they could hitch the bills individually to other bills that have momentum. Regardless, you voiced your concerns before, and we need you to do it again.

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

Kids Smell Bull***t

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Remember when the Motion Picture Association of America (MPAA) proudly debuted its copyright "education" campaign for school-age children? There was a handy classroom booklet entitled "What's the Diff?" in an evident attempt at kidspeak. And the kiddies already had a wascally weasel mascot, which, if you took the booklet's "lessons" at face value, the Business Software Alliance (BSA) blatantly stole from Walt Disney Comics.

Now, Downhill Battle has published the inevitable rejoinder, sans tangible condescension. Kids who can use Google (know any?) will able to check it out and absorb its lessons -- including how best to poke fun at transparent corporate propaganda.

This isn't a true copyright counter-curriculum, of course, but it makes a valuable point: kids aren't stupid. There are subtleties in copyright law, and feeding children a cartoonish "dumbed down" version will only decrease -- not increase -- the "respect for copyright" that the MPAA and BSA want so dearly to cultivate.

Bonus link: fellow Copyfight author Aaron Swartz details his encounter with the copyright police at Stanford (scroll down to "What the F***k Is Fair Use?"):

[Stanford Senior University Counsel Lauren Schoenthaler ] gripes a little about a 2005 state law making filesharing a crime, which she thinks is unnecessary. But her real purpose is to "get the word out on the DMCA." She claims the DMCA says you can't fileshare and, furthermore, permits copyright holders to track the Internet for people sharing. (Neither of these are true. When contacted by email, Ms. Schoenthaler defended the statement by saying that while it is "less than precise" but communicates the "big picture." This seems an odd position for a lawyer.)

Comments (0) + TrackBacks (0) | Category: Misc.

November 15, 2004

Grimmelmanniacs Rejoice

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James Grimmelmann is back with yet another must-read piece @ Lawmeme, providing his take on how to distinguish between "good" and "bad" digital rights management.

Comments (1) + TrackBacks (0) | Category: IP Use

On the Roots of Copyright Activism

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As many of you already know, Siva Vaidhyanathan is one of the leaders of the current movement for balanced copyright, and his first book, Copyrights and Copywrongs, is among the handful of canonical texts for understanding what a number of us have been calling "the copyfight" -- not only what it is but why it matters.

The Nov. 19th edition of The Chronicle of Higher Education has a great new profile of Siva, exploring (among other things) why and when it began to matter to him:

Mr. Vaidhyanathan came to his academic career in copyright not through an interest in law but as a fan of hip-hop music. In college he loved how rappers used samples of recorded music to form the backbones of their songs, which brought new meaning to both the rap lyrics and the sampled, looped tune.

Despite poor grades, he slipped into graduate school -- also at Austin -- and took a course on American music. At the time, hip-hop was getting "bum rushed," he recalls. Established songwriters were threatening rappers with copyright lawsuits, effectively stripping a whole creative element out of the music.

"I decided I had to read everything I could on copyright," says Mr. Vaidhyanathan. "I went looking for a clearly written book for laypeople to read, and I found that there wasn't one. I thought I should probably write one."

What's intriguing to me about this is what it reveals about the people in this movement -- that what inspires many of us to become copyright activists is our admiration for the creative process. This is, of course, the opposite of what we hear from the "other side," which imagines/insists that people fighting for balance are a bunch of lazy freeloaders -- adherants to a morally suspect "Everything-For-Free" philosophy.

Yesterday, my Everything-For-Free colleague Seth Schoen, who is far more brilliant than he has any right to be, wrote an email to the Dave Farber IP list that is ostensibly about whether TiVo has betrayed its customers by selling out to copyright holders. What it's really about is the struggle to maintain creative freedom in the face of companies or organizations that would dearly love to own (control) the process. My friend and former boss, Harvard law professor Jonathan Zittrain, says watching TiVo is like "mainlining" television -- and for the copyright cartel, that's plenty good enough. It has decided it's It's time to stick a fork in the PVR and move on. Seth begs to differ:

I would not get so worked up about any one action that TiVo takes. We know their strategy, and it involves co-operating with movie studios to impose restrictions on end users. The reasons why they do this are not mysterious. If you want to criticize TiVo -- and that's fine with me! -- the right place to start is much earlier in the company's history.

But if you actually want to opt out of the DRM game, it seems to me that the thing to do is to spread the remaining unrestricted technologies as far and wide as possible while they're still legal.

People who got excited about "convergence" last decade often didn't mention DRM (and sometimes weren't even aware of it).


In terms of end user control, there is an opportunity for [Consumer Electronics] devices to converge up (enhancing customers' control) and a risk of PC devices converging down (eroding it). I think the world the entertainment companies have built is providing exactly the wrong incentive at every point as this question is worked out.

These are not the words of a freeloader. They are the words of someone who plans to spend his Friday evenings after work patiently guiding a group of volunteers in developing new recipes for something far better than mainline TV: technologies that allow us to continue to create as well as to consume.

There's a lot more to say about this, but alas -- the day calls. Do check out the Siva profile and Seth's IP list email in full. Both are rich in food for thought.

Comments (3) + TrackBacks (0) | Category: Interesting People

November 9, 2004

RIAA bloodlust not satisfied with 12-year-old Brianna, sues 10-year-old downloader

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Posted by Jason Schultz

via the Miami Herald:

When he bought his 10-year-old a computer, Antonio Morrell was just trying to help the boy get ahead in school. Now the Miami construction worker is being sued by the music industry, which has brought its battle against Internet piracy to South Florida for the first time.

More than a dozen record companies have sued 30 South Florida residents, accusing them of illegally downloading music and making it available for others to copy.

Some of those named in the lawsuits told The Herald the record companies have offered to settle for about $4,000 each.

Morrell said he never downloaded any songs. Yet he's named in a lawsuit, he said, because his son, Alessandro -- who was 10 when his father bought him a computer two years ago -- downloaded about 1,000 songs and opened the door for others to copy them.

''I don't see how I could be paying somebody $4,000 for something I didn't do,'' Morrell said. ``I bought the computer for schoolwork. I'm sure he didn't know he was doing anything illegal.''

Morrell said he separated from his wife over a year ago and wasn't around to monitor his son's computer activity.

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November 8, 2004

The Grokster Case - Once More Into the Breach, Dear Friends

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Posted by

StreamCast and Grokster have just filed a joint brief [PDF] asking the Supreme Court to leave standing the landmark Ninth Circuit ruling [PDF] that the two peer-to-peer software distributors are not liable for copyright violations by the people who use their software. At stake in the case is the continued vitality of the Betamax doctrine -- what Fred von Lohmann calls the "Magna Carta of the technology industry" because it "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.'"

The primary arguments are 1.) the Ninth Circuit ruled correctly in light of Betamax, 2.) it ruled consistently with other P2P decisions in federal courts, and 3.) if copyright law needs to be adjusted in light of P2P, that task properly falls to Congress.

Bonus links:

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

Postal Service to Promote Postal Service

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In what has to be among the most bizarre-yet-cool trademark infringement settlements ever, Postal Service, the pop sensation whose song is covered on the excellent Garden State soundtrack, will be granted free license to use the name "Postal Service" in exchange for working to promote using the mail. Reports the NYT (reg. req.):

Future copies of the album and the group's follow-up work will have a notice about the trademark, while the federal Postal Service will sell the band's CD's on its Web site, potentially earning a profit. The band may do some television commercials for the post office. The group also agreed to perform at the postmaster general's annual National Executive Conference in Washington on Nov. 17.

It's interesting to compare/contrast this solution to the one proposed by the evidently clueless garbage collection company Sunset Scavenger, which has forced Wide Hive Records to change the cover and title of the DJ Zeph CD, "Sunset Scavenger." DJ Zeph might have helped Sunset Scavenger improve its profile; it sure wasn't going in the other direction.

Later: James Grimmelmann, who evidently was thinking the same way about this, but 4 days earlier: "Americans who buy stamps, a tiny bit of your money is going to hire some musicians to play a show. San Franciscans living in the Sunset, a tiny bit of your money is going to sue a musician and force him to pay to reprint an album. Which of these two seems like a better deal?"

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Mitchell v. Project Gutenberg .au: Lawyer Surprised by Effect of C&D

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Posted by Wendy Seltzer

The NYT reports on the current state of the dispute between Project Gutenberg .au and the estate of Margaret Mitchell over posting of Gone With the Wind. Post CTEA, that work is still under copyright in the U.S. but public domain in Australia.

The NYT gets comment from a lawyer for the Mitchell estate -- who's surprised that his cease-and-desist demands had the effect of taking the work offline in Australia. It's not clear what else he expected:

On behalf of the Trusts, we hereby demand that Project Gutenberg and/or PGA confirm to us within five (5) days of receipt of this letter that you have removed GWTW from the Web Site entirely or that you have taken all necessary steps to prevent the downloading of GWTW in all places in which it is protected by copyright.

Given that geolocation doesn't work and legal advice isn't instantaneous or free, for the most part, what did he expect? If it was just to give a scare, that's the kind of chill we don't need more of.

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November 3, 2004

In Recovery

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Posted by

My apologies for the relative quiet here @ Copyfight. For the past week or so, I've been blogging at Deep Links about e-voting. Now I'm in recovery from the election. Looking for the America in my heart.

A bit of good news for copyfighters: As Larry points out, 5 out of 6 candidates backed by IPac won. For this I am grateful.

Comments (3) + TrackBacks (0) | Category: Misc.

November 1, 2004

Krispy Kreme goes after 36-year-old ice cream stand for TM infringement

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Posted by Jason Schultz

Another classic case of overly-aggressive IP lawyers:

Channel 6 News asked people Friday when you hear Krispy Kreme, what do you think of?

"Good donuts." "Donuts." "Donuts." "An Ice Cream Cone."

Ice cream cone? Yes. That's what Krispy Kream Drive In on Route 422 in Cambria County sells. The current owners have been in Belsano since 1968.

Christina Hoover owns the Ice Cream shop with her husband. She tells Channel 6 News, "We're an ice cream fast food stand. It's a drive in."

And business is good. Then in the past month two letters from Krispy Kreme donuts. The corporation is not happy with them. But it's not about donuts and ice cream. The problem has to do with the name. Krispy Kreme donuts wants Krispy Kream Drive In to change theirs.

Amy Hughes is the Communications Director for Krispy Kreme. She tells Channel 6 News, "Unfortunately this business is violating a federal regulation trademark that we've had since 1951. And we've respectfully requested that they cease doing so within a reasonable amount of time."

Krispy Kreme couldn't be more wrong. Sure, it may have been using the name in connection with donuts since 1951, but ice cream and donuts are two different kinds of products. No one thinks the KK donut chain sells ice cream cones.

What Krispy Kreme is really arguing is dilution of their "famous" brand. Since going IPO a few years ago, Krispy Kremes have popped up everywhere across the county, from SBC Park in SF to the Excaliber in Las Vegas. So yes, within the last few years, one could argue that they are a "famous" tradermark like McDonalds or Kodak and should be protected from dilution (e.g. someone selling McDonalds backpacks or Kodak bicycles). The problem with this argument is that you can only sue someone for diluting a famous mark after its become famous. Since the Hoovers' ice cream stand has had the name "Krispy Kream" since 1968, they are quite safe from a dilution attack.

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

E-voting Night(mare) Watch

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I'm going to be spending the next day or so blogging over at EFF's Deep Links about any e-voting problems that may will arise.

Needless to say, I'm far from alone in the endeavor. Below, three good spots for e-voting news and analysis, including updates on pending lawsuits, etc.:

The Computer Doctors -
When they say "experts," they're not kidding -- the roster includes Avi Rubin, David Dill,Bruce Schneier, and Edward Felten, among others.

The Lawyers -
Brought to us by the Moritz College of Law at Ohio State University, this site plans 'round the clock coverage starting today until...well, none of us are sure about that, are we?

The Indian Chief -- er, the Pollster -
This is a one-man operation, and the one man, Andrew Tanenbaum, will be staying up all night on Election Day to give us the latest news on which candidate has captured which state.

One last pointer, to Marty Schwimmer's post on common-sense steps to take as you prepare to vote. Nice to have that information in one spot.

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