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.
Columbia University professor Eli Noam has an excellent Financial Times column on the long-term benefits of letting P2P survive until adolescence: "While upholding the copyright principle, [media companies] should accept some early messiness in new applications in order to grow future markets....Suppressing P2P activities that prime the pump for subsequent commercial activity will only harm users, media companies and the digital economy as a whole."
Via the Creative Commons weblog, a new service from Torrentocracy -- Prodigem, free BitTorrent hosting for CC-licensed material:
Prodigem can only be used for the distribution of legally licensed material cleared for distribution via p2p filesharing. So, if you are an artist, creator, author, blogger, podcaster, amateur mogul, lead guitarist, independent movie director or person, and you have material which has been licensed openly, such as with a Creative Commons license, the sky is now the limit.
Update: the flipside of the coin: Findlaw's collection of legal complaints against people allegedly running BitTorrent servers indexing illegal copies of TV programs and movies.
(Via Frank Field.)
Jamie Boyle's Center for the Public Domain has announced the finalists for its "Arts Project Moving Image Contest." The contest asked entrants to create short films demonstrating some of the tensions between art and intellectual property law, and the intellectual property issues artists face, focusing on either music or documentary film. Terrific stuff.
James Grimmelmann @ LawMeme: "I look forward tremendously to having all that public domain material online: watch out publishers, because you're about to have to start competing with free in a whole new way."
Scott Rosenberg: "The public has a big interest in making sure that no one business has a chokehold on the flow of human knowledge."
"[In] the language of current copyright debate, libraries are bastions of organized piracy -- an organized conspiracy to share a book, rather than buy one; note that this [concept] runs up against yesterdays Google search announcement in libraries."
"[We have] two copyright regimes - title 17 and reality - collision between these two regimes continues to shape everything that goes on in this."
I wrote TinyP2P to illustrate the difficulty of regulating peer-to-peer applications. Peer-to-peer apps can be very simple, and any moderately skilled programmer can write one, so attempts to ban their creation would be fruitless.
Public Knowledge: "We have some very good news. The 108th Congress has ended, and Public Knowledge and its allies came out on top. The MPAA and RIAA pressured Congress for laws that would have undermined your rights, hurt the economy, and stifled creative freedom. We stopped every single one."
Christoper Null of MobilePC: "In the last 12 months, the RIAA lost a landmark suit against Grokster (essentially legalizing peer-to-peer software), lost a suit to Verizon (holding that it did not have to provide names of its subscribers who the RIAA wanted to sue), and has yet to actually win against any of the thousands of individuals it has sued in court (some of the cases have been settled out of court, most are still pending)."
A method of styling hair to cover partial baldness using only the hair on a person's head. The hair styling requires dividing a person's hair into three sections and carefully folding one section over another.
Inventors: Smith; Frank J. (233 Cosmos Drive, Orlando, FL 32807); Smith; Donald J. (517 Brockway Ave., Orlando, FL 32807)
Appl. No.: 643681
Filed: December 23, 1975
John Palfrey on the tremendously exciting news that Google will digitize and make searchable some of world's best research libraries: "It brings with it a host of issues about the need to revisit, and likely to reform, the intellectual property regime to make the use of digital works in scholarship more reliably lawful."
Joe Gratz: "Having this material available has the potential to place in the foreground the importance of the public domain. Further, Google may have the resources and incentive to figure out comprehensively which post-1923 books are already in the public domain for failure of formalities.
It will be interesting to see how Google and the libraries plan to justify digitizing entire copyrighted books without a license. Even if theyre not included in the public database, merely digitizing them involves making one or more unauthorized copies."
Edward Hasbrouck, via Dave Farber's IP list: "Google's unauthorized for-profit electronic re-publication of 'cached' copies of Web pages has always been copyright infringement. (The copyright holder can remove a work from the 'cache,' but such an 'opt-out' provision doesn't satisfy the requirements of copyright law, which requires explicit 'opt in' licensing for anything other than 'fair use.')
Google's new moves, however, greatly expand its copyright infringement. ...The New York Times reports that Google will sell ads which it will display along with copies of library books. Whatever 'fair use' rights a library may have to loan out a physical copy of a book, they clearly don't extend to licensing commercial online publication. ...
This is copyright theft and for-profit online bootlegging by Google."
Slashdot: "Despite the EU Parliament's vote to exclude software patents, the patent lobby is pressing forward and patentability of software is on the agenda of a workgroup whose advice the European Council will likely follow...If they succeed, software patents could be coming to Europe before Christmas."
Kim Weatherall responds to Jason's op-ed on the broken patent system: "[The] fact that people are developing patents to license, or that patents have 'licensing value' is not the problem. It is the behaviour that Schultz points to that is the problem. And the policy problem is how do you draft a law that can differentiate between 'good' licensing behaviour and 'bad' licensing behaviour?"
Update: "Jason points out to me that his argument is more specific to software and internet patents, and to the bankruptcy scenario - and indeed it is, when you read the article. And my comments above should not be read as saying that Jason's points are invalid - they are perfectly valid, and the kinds of situations he outlines do seem to defeat, or circumvent, the purposes of the patent system.
Good Santa: "So in the spirit of the times (sussing great gift ideas), I've convinced an old friend, and my former Dean, to spend a couple days in this space talking about his new book, Perilous Times. Starting Wednesday, Geof Stone will be blogging here about the book. It is a great and amazing history, both optimistic and depressing. It will be Geof's first time blogging, so please make him welcome.
And were I to use this space to self-promote, I might point to Businessweek's pick of the top ten books of the year. But I won't waste your time with that."
Bad Santa: "In their zeal to stop people from using their legitimately purchased content, [some] companies have gummed up their media with so much copy-prevention garbage that it's practically impossible to watch or listen to anything at your leisure. You might as well wrap your digital media presents in chains.
And then, after you eagerly unchain your presents, get ready to see a lot of contracts called end user license agreements (EULAs). ...Why would I want to give my sweetie a neat entertainment device or program if it might spy on him or her or simply stop working if he or she tries to run it in a nonapproved player?"
Update via a Copyfight reader: Adam Rosi Kessel has an analysis of the claims: "ACS claims that it, and its users, often refers to its service as 'SCHOLAR' and that Google's research tool operates under the name and trademark 'SCHOLAR.' This is apparently how they're going to try to get around the 'house mark' issue -- but I haven't found any instance of SCHOLAR alone on Google's site -- it always appears as GOOGLE SCHOLAR. They'll likely lose on the facts on this one."
Our own Jason Schultz has a terrific op-ed in Salon today. The gist: when a patent portfolio is more valuable as a weapon for a patent "vulture" firm than necessary protection for a live company, it's (yet another) signal that the patent system is seriously broken.
Many have compared these new patent licensing firms to terrorists, and in some ways, the analogy is apt. When the Soviet Union collapsed, one of the biggest worries was that rogue military personnel might sell off one or more of the USSR's nuclear missiles to a terrorist group. Securing those weapons became a top priority. The reason was fear -- fear that the terrorists, who had little to nothing at stake in terms of world peace and national stability, would use the missiles to extort or manipulate the world political climate.
With the patents of bankrupt dot-coms, the dynamics are similar. Rogue licensing firms buy up these patents and then threaten legitimate innovators and producers. They have no products on which a countersuit can be based and no interest in stable marketplaces, competition or consumer benefit. Their only interest is in the bottom line.
While profit itself is often a worthy objective, it is not always synonymous with innovation. Every dollar a tech company pays to patent lawyers or licensing firms is one less dollar available for R&D or new hires. Thus, many companies that offer new products end up paying a "tax" on innovation instead of receiving a reward. When this happens, it's a signal that the patent system is broken. Forcing companies to pay lawyers instead of creating jobs and new products is the wrong direction for our economy to be headed and not the result our patent system should be promoting.
For those of you who missed it, here's a piece of "prior art" by Ben Adida of Creative Commons -- a post comparing software patents to WMD.
We've been waiting for an active, successful "GeekPAC" for years, and now we've got IPac, an intellectual property PAC that focuses like a laser beam on a worthy goal: bringing constitutional balance back to copyright law. But some supporters worry that in supporting candidates who support balance, they might also inadvertently support other, not-so-great things.
"There are many candidates out there who may stand for the copyright fight but may be against personal beliefs and views concerning our society and politics," writes a supporter. "This, for me at least, presents a moral dilemma. Though I understand and agree with being non-partisan, how can I vote for someone who is against my social and moral beliefs, and how can we know that we are voting into office the best person for a job based on one area of concern?"
It's a good question, and IPac's Matt Stoller has an good answer. The organization encourages you to support IPac in any case, of course, but if you're uncomfortable with that, give selectively.
"As election time approaches, we will send you notices on who we endorse, and the reasons why we endorse them," writes Matt. "You can choose to give to specific candidates at that time, and though IPac will have no control over where the money goes, those candidates will know that you care about the issue of copyright reform. This gives you the advantage of being able to control for ideological factors and isolate your donations to those with whom you are politically comfortable."
Giving to IPac means you're going to give to a political campaign -- and no one has control over what a candidate will do once elected. IPac will help you learn about the candidates beforehand, and you can "control" for other factors that way. That's all any group could do to help ensure that your money is going in the right direction. The advantage of giving through IPac is that your candidate will know it's because you support balance in copyright law.
Pardon me for the hero-worship break, but I love that it's Doc Searls who gets the photo-op and the best quotes in the Steven Levy article on A-list bloggers. He's what I'd call a "pure" blogger -- the opposite of a power-broker. Bravo, Mr. Levy.
Responding to the post below about the possible Time Warner/HBO plan to "grant" us 2-4 weeks to exercise our fair use rights, a Copyfight reader asks, "No Piracy, No reduction in revenue ... Just scheduling [shows] when we want. HOW DOES THIS HARM THE CONTENT PROVIDER???"
Answer: If we are allowed to retain our rights, the copyright cartel cannot sell them back to us at a premium.
Currently, you can record "Six Feet Under" and "time shift" -- that is, watch it whenever you want. But think of how much more lucrative it would be for the copyright holders if the recording "expired" and you were forced to re-purchase the episode by plunking down a chunk of change for "Six Feet Under" on DVD, "in attractive box sets with special features such as out-takes and directors' notes."
David Weinberger blogs Jonathan Zittrain's thoughts on the de-evolution of the Internet: "[Won't] we require licensing of [software] developers so they can't produce apps that destroy entire industries?"
Reshape the network so that ISPs or other traffic routers could have certain controls that would discriminate between types of traffic. Monitor all the traffic and restrict anonymous communications so that we can track the source of distributed content.
That's the Swiftian solution proposed by Derek Slater in a post echoing and amplifying the point Fred von Lohmann is making repeatedly to the press folk covering MGM v. Grokster: This case isn't about the future of peer-to-peer technology. It's about all the other technologies that will be impacted by the effort to control it:
Making "P2P networks...illegal" involves more than flipping a switch and banning P2P networks narrowly. As Ed Feltenexplains, crafting a definition that includes P2P and leaves out most other Internet technologies is basically impossible.
A result against Grokster would thus affect myriad other technologies. But would it affect P2P? Not really. As the Darknet authors conclude, "the darknet-genie will not be put back in the bottle." [...]
Which is not to say that there would be no way to eliminate P2P. Let's not rehash the old "can we regulate the Internet" argument - sure we can.
No matter how the Supreme Court rules, P2P file-sharing software will continue to be available from distributors around the world, many of whom are beyond the reach of US laws. But the Court's ruling will shape the future of companies like Apple and products like the iPod and TiVo -- that is, any company that makes/wants to make/would have made a technology that enables infringement.
I missed this piece when it first made the rounds, but Copyfight readers should check it out. It coins an awful new term: "transitional fair use."
When HBO's "Six Feet Under" returns in 2005, it won't just be the end of a long-running hit series. It may also be a turning point for TV viewers who are in the habit of recording shows to watch weeks or even months later.
A middle-level executive at Time Warner has approached several cable companies and broached the idea of restricting the ability of customers who use those company's Digital Video Recorders to record several popular Time Warner TV programs.
The term being used by the executive is "transitional fair use," and the scenario laid out goes roughly along these lines:
Viewers would be able to record an episode with their DVR, but there would be a time limit on how long it would be available for viewing. The executive was pushing for an expiration date that coincided with the premiere of the next episode. The consensus of the cable executives was that it needed to be between 2-4 weeks.
You might argue that copyright law, not cable company executives, is what grants or denies fair use. HBO would disagree.
Mark Frauenfelder of BoingBoing passes on the sad and perverse story of a teenager who was given an "F" for writing a paper attempting to distinguish between piracy and stealing:
Geluso, an "A" student, recently completed an in-class exit exam for his Language Arts class. The goal of the exit exam was to write a comparative essay on a topic of the student's choice. Being a student who enjoys a challenge, he wrote an essay contrasting piracy with stealing.
His teacher failed him, saying there was no difference between the two and that he was "splitting hairs." Other teachers who read his essay said that he did well from an organizational and technical standpoint, but because his teacher felt that there was no difference between piracy and stealing, she gave him an "F" because she disapproved of the content of his essay.
So in other words, this teacher is:
1.) an MPAA/RIAA lobbyist deep undercover on a Kindergarten Cop-style reconnaissance mission;
2.) suffered head trauma, lost a few brain cells, then read and swallowed whole What's the Diff?; or simply
3.) profoundly anti-education.
Safe bet she didn't encourage this young fellow to think about a future career as an intellectual property attorney -- those guys "split hairs" like this for a living.
The case is on the March calendar. Opening briefs are due January 24 and opposition due on February 28.
More to come on this; for now, check out Fred's take from a while back on Betamax as it relates to the Grokster case:
Simply stated, [Betamax] establishes that so long as a technology is "merely capable of substantial noninfringing uses," contributory liability for the technology vendor is foreclosed. The doctrine takes its name from the Supreme Court's 1984 ruling in Sony v. Universal City Studios, a copyright challenge to the "Betamax" VCR.
In MGM v. Grokster, no one seriously contested that peer-to-peer technologies were capable of noninfringing uses. The technologies are used today to distribute software, movie trailers, video games and music tracks, all with the authorization of forward-thinking copyright owners. Public domain materials also circulate widely on the networks.
The entertainment industry, however, urged the 9th Circuit to look at the proportion of infringing to noninfringing uses. The 9th Circuit disagreed, emphasizing that it is the capability for noninfringing uses that is critical.
Adam Jaffe and Josh Lerner, co-authors of "Innovation and Its Discontents," have an IEEE Spectrum feature describing how very broken the US patent system is: "We have reached the point where serious lawyers are being paid serious fees by a big company to shut down the PB&J operation of a grocery store." Yes, folks -- that's "PB&J" as in "peanut butter and jelly."
High-Stakes File-Sharing Case Seeks Supreme Court's Ears
Legal Times reports that MGM v. Grokster is on the Supreme Court agenda for review or denial this Friday: "Young Supreme Court law clerks, who help their justices screen cases and draft opinions, may be assigned a new task this week: explaining Grokster and Morpheus to their bosses, average age 70.7."
EM: You've written, basically, that copyright law is communications policy by other means. Can your last two answers be combined into a single coherent whole?
TW: Yes: Copyright law should limit itself to promoting authorship, and communications law should forget about content regulation. That may, again, not sound very radical, but the fact is that today the two areas of law moonlight for each other in fairly shameful ways. Copyright is used to do things that would be embarrassing to propose in communications policy circles. Meanwhile, the FCC is effectively implementing copyright laws that couldn't get through Congress.
AT SWARTHMORE COLLEGE, the crowd is mostly students, and maybe a few professors and interested outsiders. It's a typical turnout for a public lecture by a well-known law professor. But there is something different and a little odd about this group. Swarthmore doesn't have a law school, so the audience includes no young men in suits that still have the label attached, and no young women with high-heeled shoes so new the soles aren't scuffed. And there is something else, something funny about the T-shirts. Everywhere you look, there are T-shirts with slogans, not logos. No "Tommy Hilfiger" and "Ralph Lauren" here. Just shirts with references too obscure to parse. What is "Downhill Battle"? Or "Grey Tuesday"? One kid has a shirt with the picture of a skull and crossbones on it, and written boldly across it are the words "Home Taping is Killing the Music Industry." Look closer, and you'll see, in tiny type, "(And it's fun)."
Fellow ILAW alums will know what I mean when I say I feel this scene isn't complete without Yochai.
The Honorable Richard A. Posner may have the best definition yet: "It is a fresh and striking exemplification of Friedrich Hayek's thesis that knowledge is widely distributed among people and that the challenge to society is to create mechanisms for pooling that knowledge."
Yale's Information Society Project is working with Public Knowledge and the New Haven Advocate to bring us a free conference on freeing culture. It's called "Digital Mix," takes place this Friday at Yale at 6:30 p.m. EST, and features DJ Spooky, Mike Godwin, Mike Hosler of Negativeland, and Nelson Pavlosky.
University of Ottawa law prof/copyfighter Michael Geist has published the second part of his two-part series debunking recording industry myths w/r/t P2P. The conclusion: Canadian artists have not suffered financially from file sharing, as lost royalties from diminished sales have been more than offset by the collection of nearly $120 million in private copying levies.
Tim Wu, the cyberlaw prof who galvanized discussion about a wide range of copyfight-related issues over at the Lessig blog, is the subject of the latest installment of Ernest Miller's new interview series, "The Future of Digital Media."
Cynthia Webb synthesizes the discussion about the new Pew study [PDF] reporting that while many artists believe file sharing should be illegal, they don't necessarily believe that 1.) it's actually hurting them, 2.) the RIAA lawsuits are doing anything to help the situation.
The headline is a bit of a tease -- I'm not going to talk about how weblogs are better than/worse than and/or threatening/strengthening journalism as we know it. Too many others are doing a much better job at that than I could.
Here's what I'll do instead:
1.) Point you to a press release (republished verbatim) that, with all due respect to Internetmovies.com, I can't imagine being any less helpful for understanding the issues at stake: Digital Millennium Copyright Act. Yes, that's the headline that California Computer News chose for the release, presumably because it a.) didn't understand the content well enough to choose an appropriate headline, or b.) knows Googlers are interested in the DMCA.
2.) Point you to a weblog post by Joe Gratz on the very same news. As many of you know, Joe is a law student and a weblog writer -- a wonderfully clear, solid, precise writer, and consistently on top of the issues. Exhibit #2: Joe's fair use analysis for Fairtest.org, complete with gratis grammar check for the opposing party.
And with that, ladies and gentlemen of the readership, I'll rest.
Update: James Grimmelmann chimes in @ LawMeme on the Fairtest.org debacle Joe writes about in Exhibit #2, above:
The College Board's legal position is incorrect because:
A) The SAT's statistical profile is factual material, and is therefore not copyrightable.
B) To the extent that a test-taker's answers are copyrightable, the test-taker is the author, and not the College Board.
C) Even if the College Board held a valid copyright in the scores, FairTest's use of the statistics would be fair use.
D) All of the above.
I'm late to the game on this, but the Berkman Center for Internet & Society has published yet another terrific study, this time a paper on how the EU Copyright Directive (EUCD) is applied all across the European Union. It focuses on the laws addressing technological protection measures (TPMs) -- WIPO-speak for DRM.
[Where] copyright is concerned, techies quickly shift the conversation to patents, a fairly important topic to the W3C and the web community at large. It's during one of these discussions that it occurred to me that software patents behave very much like weapons of mass destruction.
Software patents are used mostly for defensive purposes, as a kind of threat of potential action: software companies stockpile patents as quickly as they can but rarely make use of them. If a party chooses to make use of a patent against another party, the effect is usually devastating, especially if the other party chooses to countersue using its patent portfolio. The fines resulting from a patent infringement lawsuit are enormous (Eolas patent: $521 Million).
What ends up happening is that large software companies have an understood agreement that they will not sue each other for patent infringement, because the effect of suing and countersuing would be too much for either party to deal with. A sort of Mutually Assured Destruction by Patent Litigation, if you will. Of course, the small companies which have a much smaller patent arsenal cannot compete and are forced to negotiate to stay alive.
Certainly, it is too extreme to say that patent firms are the equivalent of Intellectual Property terrorists. But it's important to note how the precarious balance of defensive patent portfolios is about to be shattered by Patent-Only firms, in very much the same way that the precarious balance of MAD during the Cold War was shattered on 9/11.
There are legitimate uses to patents, but we're about to enter an era where they will do far more harm than good. And even the large companies will realize that we're in need of serious patent reform.
Bonus: Professor Lenz strikes back at the "enemies of freedom" in a post on the kind of patents that kill -- not literally, but too close to be tolerated.
In the wake of the Jeopardy/Kottke incident, bloggers are starting to feel a little anxious about what protections the law affords them with regard to online speech. Here's another reason to worry: the question of whether a weblog writer can be held responsible for libel charges for simply re-posting potentially libelous material hasn't yet been definitively answered -- at least not in/by the state of California.
In a case pending before the California Supreme Court, two doctors are suing Ilena Rosenthal, a woman's health advocate, because she posted a controversial opinion piece in a Usenet forum. To be clear, she didn't write the piece. She simply passed it along for discussion -- just as countless bloggers do.
In a radical reinterpretation of section 230 of the federal Telecommunications Act, the California Court of Appeals ruled for the plaintiffs. The plaintiffs' lawyers claim that Rosenthal is liable because posting the piece and subsequent comments makes her a "developer" of the information in question, and she therefore becomes the legal equivalent of its creator for the purposes of the lawsuit. The ACLU and EFF disagree.
"Section 230 protects the ordinary people who use the Internet and email to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don't like what was said about them," says ACLU Staff Attorney Ann Brick. "The vitality of the Internet would quickly dissipate if the posting of content written by others created liability. The impulse to self-censor would be unavoidable."
Denise Howell, weblog writer and attorney-at-law, has written a guide of sorts to the current discussion about how to protect bloggers' freedom of speech in the face of the kind of attention that attracts lawsuits. She suggests formalizing the informal process by which top-notch cyberlaw clinics with pro bono talent to spare often choose cases with good facts for defending speech -- that is, taking the unpatented "submit-C&D-to-ChillingEffects-and-hope-for-the-best-while-contributing-to-knowledge" method one step further:
Hopefully, you can readily grasp the benefits of this, including tangible personal benefits for the blogger who receives such a letter. 1) You've gotten your issue in front of some very smart folks who also happen to be among the most likely to consider taking on your case on a pro bono basis if it's particularly egregious/milestone in nature. 2) If the analysis goes your way when they post the marked up letter (and bear in mind there's no guarantee it will; as far as the law is concerned you might have done something perfectly cease-and-desist-worthy), you have some good ammunition for responding to the sender. 3) The richer the Chilling Effects database, the more people it potentially can help.
The organizations involved in Chilling Effects, along with Stanford's CIS, should be the first line of inquiry for now I would think. What might be interesting to try to accomplish, and this is in keeping with what Jeff has in mind, is to set up a new legal clinic that is entirely devoted to providing pro bono services for these sorts of cases.
I like the idea. I also like that Denise is helping get the word out about what Chilling Effects does. This is a resource that gets better and better (more and more effective) the more people take advantage of it.
Red Herring, reporting on Sony Entertainment threatening Jason Kottke with infringement claims after he spoiled the "surprise" ending of Ken Jennings' winning streak on Jeopardy -- while letting The Washington Post off the hook (hyperlinks, mine):
"I think it's possible that Sony thinks individual bloggers are more easily intimidated," said Wendy Seltzer, an Electronic Frontier Foundation staff attorney who specializes in intellectual property law. "I don't think they had a reasonable request. A short audio clip -- not a full show -- could be a fair use in the context of news reporting. Jason Kottke was reporting an event that had, in fact, happened. And just because television producers wanted to treat it as suspense media, doesn't mean that it's not also news."
"Even copying a small part of someone else's work can be a copyright infringement," said UCLA law professor Eugene Volokh, an expert on the First Amendment and Internet law. "Sony can say, 'We're particularly unhappy about this one guy who is the first to publish the spoiler and we want to send a message,' or Sony might say, 'Why should we start scrapping with someone who may have lots and lots of lawyers instead of someone who's more likely to give in?'"
It's a short, one-sentence blog post + a link, à la Kottke remainders (see below for an example). We'll be using "blink" posts here at Copyfight to share links to articles, resources, and websites of interest that do not necessarily require paragraphs of context or analysis. Enjoy!
Speaking of children and copynorms, Fred von Lohmann has a new Law.com column chronicling the misadventures of Marvel Comics as it seeks (PDF) to hold NCSoft Corp. and Cryptic Studios -- the operators of an online game called "City of Heroes" -- liable for the alleged copyright and trademark infringement of people who don virtual masks and "become" their favorite (Marvel) superheros.
Marvel's assertion of copyright and trademark rights over the noncommercial expressive activities of its fans is both unprecedented and unnecessary. The fundamental justification for copyright is that we must tolerate a limited statutory monopoly on expression in order to secure an adequate incentive for the creative industries. That's an adequate incentive, not the maximum conceivable incentive. ... Does anyone believe that Marvel will fire its authors and close up shop if it can't prevent little Johnny from pretending to be Wolverine online?
When will the "content" industry begin to recognize that there are long-term rewards to letting fans be fans? A fan's gratitude and loyalty would last a lot longer than the judgment-money from shutting down the playground.
What does television look like to someone for whom TiVo has always existed? Blogger Alan Taylor has a three-year-old daughter, and he's written up a few observations that provide a glimse of the way media "consumption" is changing:
First -- she doesn't watch much TV (an allotted hour per day), but when she does watch it, she gets a choice of a recent episode of any of her favorite pre-recorded shows (current favorites are Dora the Explorer and Caillou), and she can watch it at any time of day. We get to choose what shows we'd like to allow her to watch, set up a Season Pass, and we're done.
Second - commercials are an infrequent novelty to her. We always fast-forward through commercials, or watch non-commercial shows. When she does occasionally see a full commercial, she's fascinated, and will often ask us to stop so she can see what's going on. How can we demonstrate to her the evils of commercial interruption, when she has never had to experience it?
Third - ignorance of schedules/programming - she has no idea when her favorite shows are on, never has. She gets quite confused when we are watching a non-TiVo TV, and she asks to watch "a kids show," and we have to explain that this TV won't do what ours at home does. We've sometimes shortened this explanation to "This TV is broken," which she seems to accept, and will wait until we get home to watch our "fixed" TV.
Fourth - pausing taken for granted. She is now the master of paused TV - saying "Can you please stop this for a minute - I have to use the Potty."
Interesting: TV you can't pause or fast-forward is "broken"; on the other hand, commercials have exotic appeal. What more could an advertiser ask for?
There are two solutions to this overEULAfication problem. A court could throw out this kind of egregious EULA, or at least narrow its scope. Alternatively, users could raise the price of this behavior by refusing to use overEULAfied products. Realistically, this will only happen if users are given the tools to do so.
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.
If, unlike me, you have the (metaphorical) bandwidth: the APC Magazine's KazaaGate blog, which promises "whispers from the court gallery of the world's-biggest-copyright-case for the Internet's most-downloaded-program-in-history...and other hyperbole, nonsense and mischief."