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.
If the technology problem is really as bad as the industry says, then it ought to show up in the sales numbers. ...It may turn out that the net effect of technology on the industry is neutral, or even positive. If so, then no expansion of copyright law is needed, and a mild contraction may even be in order. Remember, the goal of copyright is not to maximize the profits of any one industry, but to foster creativity by regulating just enough to ensure an adequate incentive to create.
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.
Michael Geist, warning Canada against adopting its own "DMCA": "Canada does not need protection for technological protection measures. In order to maintain our personal privacy, a vibrant security research community, a competitive marketplace, and a fair copyright balance, we need protection from them."
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.
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.
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.
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.
Larry Lessig, on the Copyright Office's RFC on "orphan" works: "The Copyright Office needs to hear about every example of where the existing system is stifling the cultivation and spread of our culture. Not because Congress extends the term of copyright for Mickey Mouse. That battle is over. But because the way in which it protects Mickey Mouse blocks access to the balance of our copyrighted culture - for no good copyright, or free speech, related reason. This point is clear to many. You need to make it clear to the government."
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.
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.'"
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.
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.
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.
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.
At 8pm on February 8th we will celebrate the struggle and triumph of the civil rights movement with screenings of Eyes on the Prize Part 1: Awakenings. Eyes on the Prize is the most renowned civil rights documentary of all time; for many people, it is how they first learned about the Civil Rights Movement (more about the film). But this film has not been available on video or television for the past 10 years simply because of expired copyright licenses. We cannot allow copyright red tape to keep this film from the public any longer. So today we are making digital versions of the film available for download. Join us in building a new mass audience for this film: organize or attend a screening in your city, town, school or home on February 8th.
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.
This video is really dumb before it gets really smart about where creative "originality" comes from. It's two guys providing voice-over commentary to a lengthy presentation for their ad services, explaining that good "creatives" don't cannibalize or merely copy ideas from other ads -- they cannibalize stuff from farther afield, and when they copy ideas, they also tweak/improve upon them. Refreshingly honest. Foucault, Derrida, and the Creative Commons folk would approve. (Thanks, Hylton!)
Update: Speaking of creativity and orginality, Kembrew McLeod is holding a very cool conference February 25th at the University of Iowa College of Law exploring the theme. It features Siva and Science Commons ED John Wilbanks, among others. Excellent.
"Santa Claus," in the letter Downhill Battle sent the RIAA along with a few lumps of coal: "I checked my list twice and I saw that you were very bad last year. ...If you stop using Congress to hurt the public, maybe you'll get some presents this year." (Via Cory.)
Seth Finkelstein: "Regarding the upcoming MGM v. Grokster case concerning the legal liability standards for peer-to-peer technology, I think the technology/freedom side is going to lose the case, and this is why: The ...'Sony' standard was made under too many factors that I don't think auger well for the current outcome. ...The sad thing is, I don't think the P2P freedom battle is intrinsically unwinnable. Only I can't see an ultraconservative Supreme Court ruling against 'all the money in the world' and in favor of only a potential."
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.
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.]
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."
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.
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.
Update (1:00 p.m.): Derek Slater: "[This] bill seems so broadly drafted, so obviously bad that they can't seriously think it will pass. Maybe this is just the baseline, but, given what happened with INDUCE, do they really want to start that debate again in the state of Silicon Valley?"
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..
Ernest, Ed, and Seth have kicked up a storm of controversy about CBS using DRM evidently to discourage critics from copying and pasting portions of its report on the "Rathergate" scandal. I've now added a few more thoughts over at Deep Links, and the Gray Lady herself has weighed in.
If you're in the San Francisco area, come have a drink with IPac on Monday night at 111 Minna. Be sure to bring your buddies, because, as the invite says, "friends don't let friends elect legislators who support draconian intellectual property laws while neglecting the public's rights and the social benefits of fostering innovation." Heh.
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.
Jamie Boyle sends word that tomorrow's the big day for the Center for the Study of the Public Domain's moving image contest on Art and IP. The prize-winning entries, selected both by the judges and by a "People's Choice" website poll, will be announced via live webcast. After the screening, the winning entries -- which are under Creative Commons licenses -- will be posted here.
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.
NYT (reg. req.): "IBM plans to announce today that it is making 500 of its software patents freely available to anyone working on open-source projects, like the popular Linux operating system, on which programmers collaborate and share code...IBM executives say the company's new approach to intellectual property represents more than a rethinking of where the company's self-interest lies. In recent speeches, for example, Samuel J. Palmisano, IBM's chief executive, has emphasized the need for more open technology standards and collaboration as a way to stimulate economic growth and job creation."
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.
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.
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.
The lastest bit of lucid and insightful writing from Siva Vaidhyanathan is Open Source as Culture/Culture as Open Source [PDF], a chapter from the forthcoming "Open Source Annual 2005." Siva observes that open source model for creation is nothing new -- and that its coalescence as a modern "techno-political movement" has both positive and negative consequences. This is a draft-in-progress; Siva invites your comments.
Techworld: "The controversial EU software patent directive has been thrown into confusion with a motion signed by 61 MEPs recommending it be thrown out and the legislative process begun again. The directive is currently awaiting a vote in the EU Council after a dramatic intervention by Poland at its final meeting of 2004 caused its rubber-stamping to be delayed."
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 targetedThink 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?
Larry Lessig gave a speech last night at the Creative Commons party celebrating the organization's second anniversary, and reportedly closed it with a sharp rebuttal to Bill Gates' description of free culture advocates as modern-day communists. You can check it out here [Bit Torrent link]. (Via Cory @ BoingBoing.)
Update: Katie Dean @ Wired: "When Bill Gates referred to copyright reformers as modern-day communists in an interview at the Consumer Electronics Show, it didn't take long for the web community to respond with a big 'nyah-nyah-nyah.'"
Check out Content and Control, the Digital Media Project's latest white paper. Copyfighter Derek Slater had a hand in researching and writing the paper; as he describes it via email, it's aimed at helping legislators and others understand the end-game results of policy/technology choices we're making to control filesharing and digital copyright infringement in general. More specifically, it considers how these choices might impact a set of budding and/or proposed business models for digital media. Right up our alley.
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.
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.
Cory in Pop Sci: How Tech Sold Us Out to Hollywood
More on DVD copy "protection" and how the major consumer electronics companies have sold the customer out to Hollywood, this time from Cory in Popular Science. "The holiday shopping guides were all a-twitter over the new DVD formats, Blu-Ray and HD-DVD -- competing systems for recording and playing back high-definition movies," observes Cory. "But here's an important question that goes unasked in all the hype: What features won't your next-generation DVD device have?"
My EFF colleague Seth Schoen and Rice University professor Dan Wallach deliver a one-two punch to the Advanced Access Content System (AACS) -- the latest industry scheme for DVD copy "protection." Says Seth, "We can understand that the technology companies and movie studios have become attached to the idea of creating proprietary encryption for optical discs, but it doesn't do much good in terms of the stated objective of preventing copyright infringement, and it has a lot of downside for consumers."
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.
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.