Corante

AUTHORS

Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Aaron Swartz
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Alan Wexelblat
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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

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
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Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
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Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
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
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
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
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
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
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
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Daily Whirl
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Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
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OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
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ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


Copyfight

Monthly Archives

January 31, 2005

On Copyright Law and Myopia

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Seth Schoen has a nice exercise in reductio ad absurdum, pointing out that the only argument the Business Software Alliance (BSA) makes in its recent legislative agenda to refute the notion that copying is beneficial to society is that restricting copying will make the software industry larger and more profitable. Says Seth, "The idea that helping a business sector get larger and richer is a primary duty of legislators or of the public is so peculiar that it bears trying to come up with a few parallel arguments."

For example, BSA asserts:


Some have attempted to paint copyright piracy as a victimless crime, arguing that "if I make a copy of a computer program, you still get to keep your copy, and we are both better off." This is hardly the case.

Reducing piracy offers direct benefits. The equation is a basic one: the lower the piracy rate, the larger the IT sector and the greater the benefits.


...so Seth suggests we might also argue:

Some have attempted to paint conjugal sexual intimacy as a victimless crime, arguing that "if you and I have intimate relations, we both derive pleasure and a sense of togetherness, and we are both better off." This is hardly the case.

Reducing sex among committed partners offers direct benefits. The equation is a basic one: the lower the intimacy rate among committed partners, the larger the prostitution sector, and the greater the benefits.


BSA's logic is not unlike that of the National Association of Broadcasters (NAB). As Fred von Lohmann points out in Kill P2P to Save TV?, its brief in MGM v. Grokster suggests that the northern star for copyright law ought to be whether or not it keeps a single group of businesses -- broadcasters -- big and rich. Or more specifically, that one particular business model (adverts) for one particular industry be protected.

Of course, BSA and NAB are doing no more than using the best arguments they have to further their own self interest. But it's important to recognize the arguments for what they are: myopic. You can argue all you want that because intellectual property protection is good, any form that props up your particular business model is also good -- but that doesn't make it so.

Comments (6) + TrackBacks (0) | Category: Big Thoughts

January 30, 2005

Eyes on the Copyright Fight

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Michael Madison has been engaging in a thoughtful back-and-forth with J.B. Zimmerman on the controversy surrounding Downhill Battle's Eyes on the Screen campaign. This discussion has so far been slipping below the radar; kudos to Prof. Madison for following the thread.

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

Kill P2P to Save TV?

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That's what the National Association of Broadcasters (NAB) proposes, says Fred von Lohmann in a Deep Links post analyzing the organization's brief [PDF] in MGM v. Grokster:


[NAB's] take on the case? P2P must be banned, lest it erode the profits of broadcasters. ...Funny, we recently heard the same thing from certain broadcasters in the fight over the "broadcast flag" regulations -- digital television technology must be locked down, all in the name of protecting ad-supported TV. In fact, they went so far as to threaten to stop broadcasting digital TV unless they got their way.

Too bad the NAB broadcasters didn't make that puerile threat in their brief: "Unless you ban P2P, we'll stop broadcasting." Because if they had, then we could have called their bluff, taken away their free spectrum, and given it to someone who is willing to play. ...

Oh, and did I mention that 85% of Americans now pay for their television programming? And that some of the most innovative programming to hit TV is produced by HBO, which manages without ads? Makes you wonder whether it's a good idea for the Supreme Court to start regulating Internet technologies to protect one, and only one, business model.

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

Myth(TV) Becomes Reality

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Here are photos from the HDTV Build-in Wendy announced below, plus the unfortunately titled Steal This Show, an NYT article that reports on how people are racing the clock to create their own fully enabled, 100 per cent legal Me2Me TV before the FCC can stop them:


The build-your-own-TV advocates say they're not looking to steal content; they're just looking for a reasonable amount of flexibility to watch the same recorded program in different rooms, or on the train to work; to lend friends a TV recording the way they used to lend videotapes; to bring the same set of recordings from their city home to their vacation house.

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

January 29, 2005

Build-in Against the Broadcast Flag Mandate

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Posted by Wendy Seltzer

With just five months left until the broadcast flag, EFF is staging a build-in: Build your own high-definition video recorder that lawfully ignores the broadcast flag.

We're using MythTV, a remarkably full-featured platform that can manage not only live and recorded television, but also music, movies, photos, weather, even VoIP phone calls. Because it's all Free Software, if you don't see a feature you want, you can code it yourself or find a friend who will.

While the broadcast flag mandate threatens to make TV back into a one-way, watch-only medium, open PVRs like MythTV give control back to us. Cut the commercials and watch only the show; or cut out the game and watch only the commercials, as some I know do for the Super Bowl. Re-mix television to make a point. Build your own Google video.

Watch for photos from throughout the day, and let us know the unexpected ways you use your PVR.

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

January 28, 2005

Why EFF Is Fighting Apple

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As a follow-up to our previous discussion in this space about Apple's subpoena requests to a number of Mac-centric news blogs, check out this post by Kurt Opsahl, the EFF lawyer working to protect the blog publishers:


As the courts have confirmed, what makes journalism journalism is not the format but the content. Where news is gathered for dissemination to the public, it is journalism -- regardless of whether it is printed on paper or distributed through the Internet.

[...]

Blogs gain in importance and readership by the content and currency of their news, not their affiliations with the media of old. Indeed, we've seen numerous cases where blogs break the news first, and traditional media follow. Bloggers hammered on the Trent Lott story until mainstream media was forced to pick it up again. Three amateur journalists at the Powerline.com blog were primarily responsible for discrediting the documents used in CBS's rush-to-air story on President George Bush's National Guard service. And the list goes on.

If Apple's subpoenas to Apple Insider, PowerPage and Think Secret are allowed to proceed and the Apple news sites EFF is representing are forced to disclose the confidences gained by their reporters, potential confidential sources will be deterred from providing information to the online media, and the public will lose a vital outlet for independent news, analysis, and commentary. We can't let that happen.

Comments (4) + TrackBacks (0) | Category: Speech

What Can't I Do Today?

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A Slashdotter, on Endangered Gizmos and the threat to harmless "me2me" uses:


At this point, I've accepted that there are things I do that may someday be considered a crime. ...:

  • Record TV shows from my DirecTV reciever that I pay a monthly subscription fee for into my computer using a Hauppauge PVR250 card for archival purposes (to show friends and family when they come over)
  • Rip all CDs that I buy to the infinitely more convenient Ogg Vorbis format so that I can listen to my music anywhere
  • Stream any audio or video from my house to wherever I happen to be using a VPN connection and broadbad. This means I can listen to my music collection, watch my DVDs or even DirecTV as long as I have an internet connection
  • Build custom digital media devices that don't have the limitations that commercial products do

...It's a wonder it's not illegal to use a hammer, nails, screwdriver, drywall, plaster and screws to build or modify your house any way you want.

Update (Jan. 31): Extensive discussion @ Joi Ito's Web.

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

January 27, 2005

Smearing Gigi

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It's clear that the Progress & Freedom Foundation (PFF) dearly hoped to make more of an impact on the debate over the Induce Act. VP Patrick Ross is showing some awfully bitter grapes in this embarrassingly personal article that's supposed to be about policy differences but instead reads as a poorly veiled attempt to smear Public Knowledge President Gigi Sohn. For example, Ross faults Gigi for claiming to speak for the consumer in copyright policy negotiations because he can't remember the last time he "voted for a 'consumer representative.'" Presumably, we're meant to understand that it's a ridiculous concept for the consumer to have a voice in such matters. That wacky Gigi.

For background on PFF's policy views, check out Larry Lessig's post from back in September, responding to the organization's push to replace the Betamax doctrine with a six-factor test:


I can well understand New Dealers racing to craft multifactored tests to regulate innovation. But I thought the whole point of the conservative (economic) movement was to teach us how harmful such regulation was to innovation and growth. Any test that cannot be applied on summary judgment guarantees that federal judges will be forced into a complex balancing to decide which innovation should be allowed. And thus, any industry threatened with competition can then use the courts to extort from these new competitors payment before they are permitted to compete.

This is a group that claims to represent the middle ground?

Update: Siva weighs in: "In a better world, our elected representatives would speak for consumers. But they don't, even though we elect them. They are bought and sold, unlike Gigi. That's why we need Gigi and other consumer advocates. They sacrifice their time and go underpaid for their entire lives so they can sleep soundly at night, knowing they made the world a little bit better. What does Ross think is going on here?

Ross says Gigi does not speak for consumers who want to pay for online content. She most certainly does. I am one of those consumers. I am proud to have Gigi and Public Knowledge speak for me. And I have had no problem paying for content. Has anyone? Is this a frequent complaint? Nobody wants our money?"

Update #2: Joe Gratz: "Ross seems upset that Sohn calls herself a 'consumer advocate' while failing to represent the views of consumers who enjoy paying monopoly rents.

'Wait!,' Ross seems to be saying, 'I'm a consumer, and I think the big content companies who pay my salary should have complete control over the media they release and the technologies used to enjoy those media. She's not representing my view, ergo she is a sham consumer advocate.'"

Comments (8) + TrackBacks (0) | Category: Laws and Regulations

January 26, 2005

Lasica Burns the Broadcast Flag

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J.D. Lasica, in a Reason article on Michael Powell's "invisible legacy" (emphasis & hyperlink, mine):


In telecom policy, Powell lived up to his deregulation rhetoric. But there's another legacy Powell is bequeathing us, one that has been scarcely mentioned in the press: the FCC as Federal Computer Commission...The larger problem is that Powell and the FCC are treating us as consumers rather than users. The federal agency has essentially endorsed Hollywood's line that digital televisions, personal video recorders, DVD recorders, and computers are no more than playback devices for Big Entertainment content rather than intelligent machines that can store, alter, remix and share digital bits.

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

Anti-porn, anti-IP

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Posted by Alan Wexelblat

If you have been kind enough to read what I've written on Tech IP you know that one of my current concerns is the US Government's campaign to stifle speech it doesn't like. I think this is critically interesting because a key facet of intellectual property is the ability to disseminate creativity to an audience. The more mediation there is in this process - be it the FCC or the Content Cartel - the more problems will arise.

One of the public faces of this campaign has been Howard Stern versus Michael Powell. That has had several amusing moments; I really did expect Stern to sing "Ding Dong the Witch is Dead" when Powell announced his resignation. However, on a quieter side, the government has also been clamping down hard on the porn industry. Yes, I'm about to defend porn producers - as has been said, popular speech isn't in need of defense; it's the unpopular stuff that needs defending.

In this case, the creators are Extreme Associates, producers of some fairly edgy material. Their stuff apparently includes simulated rapes, bodily fluids, and even simulated snuff (murder) films. Not exactly family fare and as you'd expect the government picked what ought to be a fairly easy target for its first major porn prosecution in over a decade. To just about everyone's surprise, not only did the government lose, but they got slapped hard by the trial judge (Gary L. Lancaster) who effectively threw out the entire Federal obscenity statute.

Of course this is only the trial level and there are sure to be appeals but this is a decision worthy of examination. I am not a lawyer myself and I'm relying a lot on a very thoughtful writeup by an LJer who goes by the name "alanesq" (pure coincidence I assure you).

The essence of the argument in dismissing the charges is that the government cannot assert an interest in preventing people (adults) from owning the material; therefore, to prosecute someone for production of something that is legal to own is itself a violation of due process and the 14th Amendment to the US Constitution. Interestingly, Lancaster drew heavily on the SCOTUS logic in Lawrence v. Texas. That case, which overturned anti-sodomy laws, essentially cut the legs out from under all attempts by the US Government to prosecute laws regulating private behavior between consenting adults on a "public morality" basis. Thus, even though the Extreme Associates material may be obscene in the public sphere, private sale to adults and private viewing in the adults' home doesn't generate any compelling problems for the government. Thus, no grounds to prosecute.

Alanesq believes that the decision has a weakness in relying on the 14th Amendment rather than directly tackling the 1st Amendment freedom-of-speech issues. I agree that is a problematic area, as there is precedent for the notion that obscenity may not be protected expression. I think that these issues will be more directly addressed in Nitke v Ashcroft, which I suppose will soon be retitled Nitke v Gonzalez and which opens up a whole realm of torture jokes.

The PA attorney hasn't announced whether they'll appeal (which would go to the Third Circuit I believe). I haven't a clue which way the 3rd is likely to lean - anyone want to speculate? On the one hand, Extreme's Zicari issued a pretty public challenge to Ashcroft and there are a couple of other minor prosecutions that are at risk if this decision stands. On the other hand, the Feds may not want to risk setting a larger precedent that invalidates their whole obscenity law framework. If Lawrence actually has the wide-reaching implications that some conservatives fear, then it may not be possible to patch the cracks in the dam.

PDF of the decision in Extreme Associates: http://www.adultinternetlaw.com/Cases/extreme.associates.f16a863.pdf

Comments (2) + TrackBacks (0) | Category: Speech

Dr. Alan Wexelblat Joins Copyfight

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Today we are very excited to welcome Alan Wexelblat to Copyfight. Some of you may know Alan as "Dr. Wex" from Blogbook IP -- where he's a frequent, incisive critic of the copyright cartel -- but he's been a commentator on the copyright wars since 1998. In his day job, Alan works as a Senior Staff Human Factors Engineer for EMC-Legato and runs HOVIR, an independent consultancy that provides usability, human factors, and project management services. He is a member of Usability Professionals Association (UPA) and Vice President of Operations for ACM SIGCHI (Special Interest Group on Human-Computer Interaction). Alan's background includes a PhD from the MIT Media Lab and 20 years of work in the computer industry.

Welcome aboard, Alan!

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

"Ready to Share" Conference, Jan. 29

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David Bollier sends word about (another) conference on creativity and originality -- specifically, the fashion industry's embrace of sampling, appropriation, and borrowed inspiration:


I thought you might be interested in "Ready to Share," a conference about the ownership of creativity in fashion, to be held this Saturday at the Norman Lear Center at the USC Annenberg School for Communication. The one-day event will explore how most of the creative output in fashion cannot be owned and, indeed, how creative appropriation and derivation is the norm. Yet fashion still serves up plenty of originality and is a creatively robust, competitive global industry. A webcast will be available. Details and other contact information can be found...at www.readytoshare.org.

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

January 25, 2005

Once More Into the Betamax Breach

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Yesterday, the major motion picture studios and the recording industry filed a brief [PDF] in MGM v. Grokster arguing that the Betamax defense "should not apply when the primary or principal use of a product or service is infringing." They specifically reject the "mere capability" test that the majority of the Supreme Court endorsed in 1984.

Fred von Lohmann has now posted a response over at Deep Links. The gist? If we substitute a "primary use" test for mere capability, we swap an incentive to explore new business models with an incentive to "let slip the dogs of litigation as early as possible, before a new technology starts proving its noninfringing potential." While the Betamax test has allowed technological innovation to move forward, a "primary use" test would force it into retrograde.

Ed Felten also has a must-read post on two of yesterday's briefs -- the Solicitor General's brief [PDF] and a brief from a group of anti-porn and police organizations [PDF]. He argues that the briefs "are caught between nostalgia for a past that never existed, and false hope for future technologies that won't do the job." What they really want, writes Felten, "is [an Internet] that is easier to regulate, a net that is more like broadcast, where content is dispensed from central servers."


Their main criticism of Grokster is for its "engineered ignorance of use and content" (p. 9; note that the quoted phrase is a reasonable definition of the end-to-end principle, which underlies much of the Internet's design), for failing to register its users and monitor their activities (e.g., p. 13), for failing to limit itself to sharing only MP3 files as Napster did (really! p. 17), and for "engineer[ing] anonymous, decentralized, unsupervised, and unfiltered networks" (p. 18).

These arguments (as the lawyers say) prove too much, as they would apply equally to the Internet itself, which is ignorant of use and content, does not register most of its users or monitor their activities, does not limit the types of files that can be shared, and is generally anonymous, decentralized, unsupervised, and unfiltered.


Fascinating stuff -- and no doubt there will be much more to come. Once again, the spots to watch for briefs are here and here.

[Note: I posted this in extreme haste, and have since edited for coherence/readability.]

Comments (3) + TrackBacks (0) | Category: Laws and Regulations

January 24, 2005

Grokster Briefs via RSS

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Also courtesy of Joe Hall, here. For those without RSS aggregators, keep checking here or here.

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

The Grokster Briefs - Same Old, Same Old?

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Joe Hall sends word that Pam Samuelson has written her debut post on the weblog for her new class at Berkeley, Peer-to-Peer (P2P) Technology: Legal and Policy Challenges. The subject? The briefs that will be filed today in MGM v. Grokster -- or as Pam puts it, "More Grist for Our Mill":


It will be interesting to see whether MGM's position will be more refined than it was at the trial court and before the Ninth Circuit. Will it continue to argue positions that the Court considered and rejected more than twenty years ago in the Sony v. Universal decision? Or will it articulate some new and possibly more targeted challenge to Grokster's defense?

Speaking of which, fellow copyfighter Derek Slater has a few thoughts on the first brief we've seen, which was filed by the Video Software Dealer's Association and has been circulating on various IP lists all weekend. As I understand it from the excerpts, the VSDA argues that in Sony, there was no way for the Court to mandate redesign of the VCR to limit infringement without also unduly limiting the freedom of expression -- but in Grokster, there very well may be. Derek respectfully disagrees.

"Distinguishing Sony because it only dealt with enjoining the technology altogether seems wrong to me. In terms of interpreting Sony, I think the Court resolved how we should treat redesigns, as I discussed here. From a normative perspective, I think Sony was right to not assess potential redesigns and simply use the substantial non-infringing uses rule, as I discussed here."

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

EFF Announces Endangered Gizmos List

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Here is one of the reasons I've been relatively scarce of late -- we at EFF have been working on a brand new campaign to demonstrate the many ways that the copyright cartel is spoiling the environment for innovation:


FCC Chairman Michael Powell calls TiVo "God's machine," and its devotees have been known to declare, "You can take my TiVo when you pry it from my cold, dead fingers!" But suppose none of us had ever been given the opportunity to use or own a TiVo -- or, for that matter, an iPod? Suppose instead that Hollywood and the record companies hunted down, hobbled, or killed these innovative gizmos in infancy or adolescence, to ensure that they wouldn't grow up to threaten the status quo?

That's the strategy the entertainment industry is using to control the next generation of TiVos and iPods. Its arsenal includes government-backed technology mandates, lawsuits, international treaties, and behind-the-scenes negotiations in seemingly obscure technology standards groups. The result is a world in which, increasingly, only industry-approved devices and technologies are "allowed" to survive in the marketplace.

This is bad news for innovation and free competition, but it also threatens a wide range of activities the entertainment conglomerates have no use for -- everything from making educational "fair" use of TV or movie clips for a classroom presentation, to creating your own Daily Show-style video to make a political statement, to simply copying an MP3 file to a second device so you can take your music with you.

Rather than sit back and watch as promising new technologies are picked off one-by-one, EFF has created the Endangered Gizmos List to help you defend fair use and preserve the environment for innovation.


For more on precisely these themes, check out:

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

January 20, 2005

Righting Copyright: Fair Use and "Digital Environmentalism"

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The always eloquent Robert Boynton has written the book review to end all book reviews -- at least for copyfighters. It's an in-depth look at four books on the contemporary movement to restore consitutional balance to copyright:


Boynton goes well beyond typical book review territory, offering a compelling synthesis of perspectives as well as an analysis of the current state of play in the copyfight:

The cultural prong of digital environmentalism has had somewhat more success. Represented by writers like Bollier, Vaidhyanathan ..., Kembrew McLeod ..., and others, they all advocate the path of activism and resistance. Working within existing law, they propose that artists and authors aggressively exercise their intellectual property rights in the face of threats and legal challenges from overbearing copyright holders. Bollier, for one, perceives the work of digital environmentalists as benefiting from the momentum generated by legal challenges like Lessig's. "Acts of civil disobedience against the antisocial, personally intrusive claims of copyright law have only grown since the Eldred ruling, in part because of it," he writes.

A terrific, involving read, regardless of whether you've read or plan to read the books. Bravo.

Comments (1) + TrackBacks (0) | Category: Big Thoughts

January 19, 2005

A New Kind of Induce Act

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Jason Schultz @ Deep Links, responding to the news that California senator Kevin Murray has introduced an Induce Act-like bill before the state's legislature:


The bill, introduced in the Senate last week, would make a criminal of anyone who sells or distributes software that allows users to transmit files over a network, if the seller/distributor fails to exercise "reasonable care in preventing use of the software to commit an unlawful act" such as piracy, computer trespass, or dissemination of child pornography.

Goodbye innovation; hello regulation. "Reasonable care" could mean anything from the forced design and/or redesign of software to mandated filtering and digital rights management (DRM) -- even the forced installation of spyware to monitor user behavior. ...

From the birth of the Xerox machine to the modern web server, every technology that enables people to copy or disseminate content has had the capacity to be used for some illegal activity. Under Murray's logic, we should have stopped the manufacture and sale of VCRs, dual tape decks, postal services, carbon paper, and any other service or device that could potentially be used in a crime..


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

January 18, 2005

A New Kind of Civil Disobedience

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Civil rights leader Lawrence Guyot, quoted over at Daily Kos: "I would call upon everyone who has access to 'Eyes on the Prize' to openly violate any and all laws regarding its showing."

The very sad backstory is chronicled here [Globe and Mail] and here [Washington Post; reg. req.]. Also apropos is Daniel Love's Powerful Pictures, the video that recently won first place in the Moving Image contest sponsored by Duke's Center for the Study of the Public Domain.

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

January 17, 2005

January 14, 2005

How Does IP Law Affect Art?

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Check out the winning videos from the Center for the Study of the Public Domain's moving image contest for wonderfully creative answers. My personal favorite: "Stealing Home."

Comments (1) + TrackBacks (0) | Category: Announcements

Where the "Wow" Went

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One of the goofy songs my mom used to sing me as a child was Does Your Chewing Gum Lose Its Flavor on the Bedpost Overnight? I can hear the tune in my head as I read Kevin Maney's review of the Consumer Electronics Show.

For Maney, the flavor -- or as he calls it, the "wow" -- is gone. It used to be that we saw stuff that made "even hard-boiled techno-weenies" get excited. Napster. The Blackberry. But no more. How come? According to Maney, the "real wows" require two things that aren't in evidence at the moment:


First, someone has to invent a radical enabling technology -- hardware or software that's not much good on its own but can be used to build something that's never been built before. The microprocessor and MP3 compression for music were both enabling technologies.

Then, someone has to take that enabling technology and invent a life-altering way to use it. MP3 made it possible for Shawn Fanning to launch Napster from his dorm room. Apple Computer and others latched onto the microprocessor and created the PC.


Ah: a "radical enabling technology." Life-altering" uses and extensions thereof. Just the sorts of things a hypothetical "someone" might create and bring to a show like CES. Provided, of course, that the someone gets permission from Hollywood and/or the major consumer electronics companies first.

As Cory recently pointed out, often the most revealing question to ask about a new gizmo isn't "What does it do?" but, rather, "What won't it let me do?" After all, if it's "life-altering," it's a threat to the status quo -- and those who profit from it.

Julie Jacobson of CEPro Magazine has written a scathing editorial on the kind of coercion going on behind the scenes for DVD CCA dues-paying companies like Kaleidescape -- even before they attempt to slip the bonds to achieve "wow":


The DVD Copyright Control Association (DVD CCA) is a bully.

Not just because this legalized cartel sued Kaleidescape, but because the organization manages to coerce all manufacturers of DVD players to sign away their rights to innovation.

The DVD CCA was created in 1999 to be the sole licensor of the Content Scramble System (CSS), an encoding scheme used by DVD makers to thwart the playback of DVDs by anything other than a "legitimate" DVD player.

A "legitimate" player is one whose manufacturer pays a $15,000 annual fee to the DVD CCA (the CSS license is "royalty free," says the DVD CCA; the annual fee is "to offset the costs associated with DVD CCA's administration of CSS....") and agrees to whatever capricious specifications the DVD CCA dictates. [...]

So, then, who collects the tens of millions of dollars in "administration fees" that flood into the organization every year?

The money goes -- surprise, surprise -- to the for-profit organization that manages the DVD CCA, License Management International, LLC (LMI). The Morgan Hill, Calif., company was founded by John Hoy in 2000 -- the year after Hoy founded the DVD CCA. Go figure.

LMI, it turns out, also manages the three other significant "copyright-protection" bodies, including 4C Entity, which is expected to license the forthcoming CSS 2.0 -- potentially paving the way to double-charge CSS licensees -- once through the DVD CCA and once through 4C, with the proceeds going to LMI.

I don't know enough to suggest that the DVD CCA is wrong in the Kaleidescape case. But I do know enough to infer that something about the DVD CCA stinks. An organization that wields that much power should have to, at the very least, put a contact name and phone number on its Web site, post its bylaws, disclose its board of directors, name its management company.


Okay, so I'm no longer humming silly tunes from the early 60's. Now it's Woke Up This Morning.

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January 13, 2005

Let a Thousand Googles Bloom

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Speaking of Larry, it appears [LA Times; reg. req.] that he and Professor Geist are of one mind about the larger implications of Google's plan to digitize some of the world's best libraries:


[The] excitement around Google's extraordinary plan has obscured a dirty little secret: It is not at all clear that Google and these libraries have the legal right to do what is proposed...Google, to its credit, has decided to accept these risks. It can afford to fight the lawsuits, and the benefit to society and Google from such access apparently outweighs its potential costs.

But not everyone is Google. Not every library could afford the risks that Google can. And so before we accept a world where only a Google can build valuable, network-based digital libraries, we should ask whether the system that produces these profound uncertainties is a system that we should change.

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January 11, 2005

Jailed for a Song

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IPac has just unveiled Jailed for a Song, a new public-awareness campaign that makes it clear that people who support sensible copyright law aren't the radical extremists in this debate:


Jailed for a song? That's what a proposed law would allow. Skipping commercials is stealing? That's what some copyright holders think. And spending millions of taxpayer dollars to hunt down file-sharers? Congress nearly passed not one, but two bills that would have done just that in 2004. Does that sound like the right set of priorities to you?

Copyright infringement is a problem, but the radical political agenda of copyright holders is far beyond what normal Americans want. We need constructive proposals for how to pay artists, protect technical innovation, and end the record & movie companies' crazy litigation campaign. That's why we need your help.


Sign up for the IPac email list and pass the URL along.

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

Canada's (Copy)fight for a National Digital Library

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University of Ottawa law professor Michael Geist proposes that Canada should be the first country in the world to "Googlize" its libraries and public documents -- and explains how the copyright reforms Canada is considering would stand in the way. The two hurdles: 1.) a new licensing scheme that would force Canadians to pay for online content that is otherwise publicly available and 2.) an extension of the term of copyright by (surprise!) 20 years.

Snippet:


Extending the copyright term would deal a serious blow to a national digital library because it would instantly remove thousands of works from the public domain. Although the U.S. and European Union have extended their copyright terms by an additional 20 years, the vast majority of the world's population lives in countries that have not.

Those countries have recognized that an extension is unsupportable from a policy perspective. It will not foster further creative activity, it is not required under international intellectual property law, and it effectively constitutes a massive transfer of wealth from the public to the heirs of a select group of copyright holders.

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EFF Is Not Representing Think Secret

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The mistake is understandable. Here's our press release; EFF's clients are the publishers of AppleInsider and PowerPage. It's important to note that the facts in these cases are different.

Update: The New York Times has clearly written, informative coverage [reg. req.]; NewsFactor also has something solid.

Update #2: The legal documents are now up at the EFF site.

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January 10, 2005

EFF to Apple: Back Off

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Macworld kicks off tomorrow, but a behind-the-scenes drama has already begun to unfold. Over the past few weeks, Apple has been sending legal threats to the publishers of the Mac-centric weblogs AppleInsider and PowerPage for posting details about a new Apple product code-named "Asteroid." Apple has even obtained a court order to served subpoenas asking subpoena for the identities of the people who leaked the information. Today, EFF announced that it's representing the publishers to defend their right to keep their sources secret:


"Bloggers break the news, just like journalists do. They must be able to promise confidentiality in order to maintain the free flow of information," said EFF Staff
Attorney Kurt Opsahl. "Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society."

"I am very disappointed by Apple's behavior and its new policy of issuing legal threats to its best customers," added Jason O'Grady, publisher of PowerPage. "Is corporate paranoia really more important than the First Amendment?"


AppleInsider and PowerPage aren't alone; Apple has also targeted Think Secret and three people who allegedly posted a developer build of MacOS 10.4 via Bit Torrent.

It will be interesting to see what the resolution of each of these conflicts will reveal about the nature of speech on the Internet today. There are critical differences in the circumstances of each "case." Where will the courts draw the line between breaking the news and breaking the law?

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January 7, 2005

January 5, 2005

EyeTV: Get Your Fair Use While the Getting's Good

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We've had quite a few dicussions in the space about Hollywood's attempts to rob you of your fair use rights in order to sell them back to you (see here, here, and here). Today Fred von Lohmann has published a review of Elgato's EyeTV -- a Mac product that allows people to make fair uses of high-definition digital television broadcasts. One such fair use might be recording a clip of a movie like "The Lord of the Rings: Fellowship of the Ring" to use in the context of discussion/review -- and that's precisely what Fred has done [500 MB+ Bit Torrent download].

In only seven months, the FCC's "broadcast flag" regulatory regime will go into effect -- and the regime does not recognize the right to fair uses like this one. But if you make like Fred and purchase devices that aren't hobbled now, you'll be able to keep making perfectly legal uses of recorded broadcasts despite the flag.

For more about EyeTV and the issues surrounding the flag, check out this post @ Deep Links.

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What's a Clip?

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Edward Felten's version of a blink.

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Ed Felten's Predictions for 2005

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Edward Felten gazes into the crystal ball, providing 12 predictions for IT-related developments in 2005. They include the prediction that in deciding the Grokster case, the Supreme Court will fail to replace the Betamax rule with something sufficiently clear for evaluating the legality of future technological innovations -- putting the ball back in Congress's court.

Bonus: the good professor's 2004 Scorecard.

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Reform Copyright, Stimulate Economic Growth

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Yesterday I plumbed Ernest Miller's excellent interview with former Napster CEO Hank Barry for a few thoughts on the Grey Album, but it's chock full of must-read material -- including a nice discussion about why too much copyright is as bad for the economy as too little:


EM: You've been a significant and outspoken critic of recent proposed copyright legislation such as the Induce Act. Does copyright law need to be changed? If so, what should those changes be?

HB: It is clear that some level of IP protection is a huge positive for a society -- it stimulates enterprise and innovation -- gives the small guy a way to compete. But Alan Greenspan recently asked "If our objective is to maximize economic growth, are we striking the right balance in our protection of intellectual property rights?" The answer is no. My own view is that the best way to stimulate economic growth right now is reform our copyright and patent laws to decrease the level and scope of protection to promote competition, reduce litigation and increase innovation. An FTC report suggests the same.

[...]

Excessive IP rights are like a tax, and we all need a tax cut! As Judge Posner has said: "you might think that if a little copyright is good, then a lot is better. But the matter is not so simple." Too much IP is just as bad as too little. We have come to the somewhat paradoxical point where we need to decrease protection to increase output.

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January 4, 2005

Grey Album Named Best of 2004

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Fred von Lohmann @ Deep Links, on Entertainment Weekly's choice for Album of the Year -- The Grey Album: "The Grey Album phenomenon will be remembered as a watershed moment for the music industry, putting the lie to all the industry wags who defend the old distribution mechanisms with the tired claim that 'no artist has ever broken out through P2P.'"

Update: More thoughts on the Grey Album "phenomenon," from none other than former Napster CEO Hank Barry:


I had a chance to spend time with Danger Mouse. He is a soft-spoken, thoughtful person. He found some sound recordings from one artist and some from another, and saw a relationship. He had a program called Acid (owned by Sony incidentally) and he used Acid to mash-up these existing recordings to make a new work. Should he be prohibited from doing it? Should he be able to make money from it? Should Sony be liable for providing the tool?

All of these questions are a result of the "permission culture" that Prof. Lessig has described so well. We should be talking about ways to reform that, by having some minimal requirements for initial and continued protection of works and inventions.

One more thing about "control." We need to remind ourselves constantly that the justification for the monopoly grant we give in patents and copyrights is the greater public good -- economic and social, not the moral or personal right of the inventor or author.

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