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
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
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
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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
Crooked Timber
Daily Whirl
Dead Parrots Society
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
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

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

February 28, 2005

EU Software Patents Moving Forward

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Very bad news. According to CoCo blog, "The European Commission has denied a restart of the Software Patent Directive despite a request by the European Parliament." A "restart" here meant taking the Directive back to square one. Now we're on square two.

How did this happen? Says Florian Mueller of NoSoftwarePatents.com, "A wannabe Napoleon who heads the Commission and a Microsoft puppet that runs the DG (directorate general) in charge have decided to negate democracy."

Update: eWeek: "The European Commission has turned down the request that a controversial IT patenting proposal be thrown out, the latest twist in the European Union's software patents drama. The decision gives the go-ahead to send the proposal through to the next stage of the legislative process."

Update #2: Much more at Groklaw.

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

FOSS RF v. OASIS RAND - WTF?

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Posted by Alan Wexelblat

A virtual who's-who of Free/Open Source software (FOSS) names have signed a letter and called for a boycott of the OASIS (Organization for the Advancement of Structured Information Standards) standards, on account of their promotion of RAND (reasonable and nondiscriminatory) licensing terms for patents.

The signatories assert that this is sour grapes from the IP hoarders who lost the battle at W3C. When that organization went for RF (royalty-free) licensing, the argument goes, some companies picked up their marbles and walked, starting a new organization that didn't have meddling hackers at its helm and which would be compliant on such matters.

I'm a big fan of RF, having worked at more than one startup that would have died a painful death in a RAND world. However, it's really unclear to me why these big guns have chosen to take on OASIS, particularly at this point. For one thing (as OASIS CEO Patrick Gannon has pointed out) OASIS has revised its IP terms to permit RAND, RF, or RAND-but-free.

Second, the last time I looked, IETF was also promoting RAND and nobody was calling for a boycott of them. What gives, guys?

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

Sue your customers, now with extra vitriol

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Posted by Alan Wexelblat

John Borland reports for CNET that the MPAA is launching a new round of lawsuits against film-swappers. There's some fear that this is an offshoot of the shutdown of LokiTorrent, a major BitTorrent hub. During that fiasco, not only did the owners agree to pay US$1 million, they agreed to turn over their server logs.

Anyone who wonders why I don't run BitTorrent should read the linked story carefully. What those administrators were doing keeping such logs in the first place is anyone's guess.

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

Copyright As the Engine of Censorship

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Just in time for the latest version of the P2P = Porn argument, Ernie Miller returns to Importance Of... with a nice post on what copyright law is supposed to do:


In the copyright and First Amendment case Harper & Row, the Supreme Court famously called copyright law "the engine of free expression." Indeed, properly limited, copyright can be an engine of free expression. However, when not properly limited, copyright can, instead of promoting free expression, become an engine of censorship.

Many have argued this point, but seldom to you see such blatant and concrete examples of this phenomenon as when the Walt Disney Company aligns itself with would be censors of "dirty bits" in order to promote expanded copyright law. [...]

Is it a coincidence that the copyright industry (which usually celebrates the First Amendment) seeks to get in bed with censors? I think not.

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

Killing P2P Will Stop Internet Porn

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And if you buy that argument, you might also be interested in purchasing the one about it stopping copyright infringement and saving the music industry.

(Via Frank Field @ Furdlog.)

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

On Creativity, Or The Tale of the Squawking iPod

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When most people think about creativity, they imagine the lonely poet in the garret, or Jackson Pollock poised over an enormous canvas with a dripping brush. Seth Schoen, on the other hand, thinks about a squawking iPod. Deeply. And manages to make tangible the things that keep technological innovation strong and healthy -- the conditions that nurture new ideas and keep the garden growing.

An excerpt (hyperlink, mine):


Schneider's ingenious approach shows several important virtues:

  • User innovation and the lack of passivity. Apple didn't intend for third-party software to be used with the iPod; not only was Schneider unconcerned with this, he ended up using the iPod in a way that its developers wouldn't have anticipated (and, if they've heard about it, are probably amused or startled by). He certainly refused to limit his thinking to what the original manufacturer had in mind; he insisted, on, well, thinking different.
  • Consciousness of history. This problem was solved before in an earlier generation of technology. As Dave Farber has often pointed out, it's tragic that computer scientists and programmers working today are often thoroughly ignorant of what earlier generations have already invented and implemented. Even more than other fields, computing may be repeating and duplicating effort all the time. The notion of modulating digital data as a waveform at audio frequencies has been deeply important in digital communications, but it's easy enough for people who don't use a modem any more to forget it -- never mind people who (like myself) have never had to use an acoustic coupler.
  • An appreciation for the universality of the machine. The idea that data is data and that representations and encodings of it are merely accidental goes back, depending on how you want to count it, decades or centuries. (See, e.g., Umberto Eco, The Search for the Perfect Language (Malden, MA: Blackwell Publishers, 1997), for some antecedents of this idea in the days before Shannon, Turing, and von Neumann.) But even so, we can get stuck in what cognitive psychologists call "functional fixedness" and refuse to think about data outside of its current representation. ...But Schneider thought with an abstraction and generality that befits an "information age"; he knew that bits are bits, from a communication engineering point of view, and meaning comes after, at another layer.
  • Hack value. It can be risky to describe something as having "hack value" ...So let me note the ...famous discussion in The Diamond Age: "Pardon me, Your Honor, the concept is not easy to explain -- there is an ineffable quality to some technology, described by its creators as a concinnitous, or technically sweet, or a nice hack -- signs that it was made with great care by one who was not merely motivated but inspired. It is the difference between an engineer and a hacker."


We need many, many more technically oriented people writing about what makes innovation work (or not). What better way to demonstrate what we lose under laws like the DMCA/government technology mandates like the Broadcast Flag/future Induce Act(s)?

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

February 27, 2005

Fred von Lohmann on Google's Auto-Link

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Fred @ Deep Links:


Google's Auto-Link adds links to certain kinds of content that appears on web pages (like a link to Google Maps for addresses, or Amazon for ISBNs).

Some people (like Dan Gillmor) are viewing this with suspicion. (The Trademark Blog has collected the commentary.) They shouldn't. The issue is simple: Who owns your desktop? You, or the owner of whatever webpage you happen to be browsing?

A meatspace analogy should make this clear: Imagine I have a butler whom I task with going through what drops into my mail slot each morning. His job? To annotate my snail mail. He goes through the advertising circulars and researches whether better prices are available anywhere else. He gets me a map of every return address. Maybe I ask him to anticipate needs I don't even know I have yet. If he does something I don't like, I replace him.

When I visit your website, and you send me a page in response, I should be able to do whatever I like to manipulate it on my end. Display it in purple, suppress images, block pop-ups, compare prices from other vendors, whatever. In the words of my colleague, Cory Doctorow, "it's my screen, and I should be able to control it; companies like Google and individuals should be able to provide tools and services to let me control it."

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

Free As In...TV?

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Carrie McLaren at Stay Free! blog: "Gee, who would have thought that some of the same suits who are now trying to dictate what you can watch and record on television once urged Americans to 'Keep TV Free'? Well, here's a PSA from the late 1960s Hollywood that does just that." [BitTorrent version; Quicktime version.]

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

Do Not Taunt Happy Fun Ball

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Or peer-to-peer file-sharing software [Susan Crawford]. (Obscure SNL reference here.)

Update: For more on the obligation to develop "responsible" software, see Seth Schoen's TV-Anytime Hubris [Deep Links].

Update#2: ...and this comment from a student in Pam Samuelson's course on "The Challenge of P2P": "I wonder if these two had constructive knowledge of infringement ;)."

Comments (6) + TrackBacks (0) | Category: Laws and Regulations

February 26, 2005

This Isn't a Copyfight

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This is a copyfight:


"Get that camera out of my face," Churchill said.

"This is an artwork we've got called 'Winter Attack.' It looks like it was based on a Thomas Mails painting; it looks like you ripped it off. Can you tell us about that?" Chohan asked.

That prompted Churchill to take a swing at Chohan while he held a stack of papers in his hand.


Whoa.

Fisticuffs.

Update: Evidently, this is the same Professor Churchill of "little Eichmanns" infamy. Curiouser and curiouser.

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

February 25, 2005

James Boyle: Public Information Wants to Be Free

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James Boyle has done it again. Last time, Boyle had the temerity to suggest that intellectual property policy ought to be judged by its performance. Yes, that's right -- not on the theory that it spurs the "progress of science and useful arts," but rather, on whether a specific protection actually does the job. This time, Boyle continues the theme, giving us a surprising fr'instance:


Take weather data. The United States makes complete weather data available to anyone at the cost of reproduction. If the superb government websites and data feeds aren't enough, for the price of a box of blank DVDs you can have the entire history of weather records across the continental US. European countries, by contrast, typically claim government copyright over weather data and often require the payment of substantial fees. Which approach is better?

...Weiss suggests that the US approach generates far more social wealth. True, the information is initially provided for free, but a thriving private weather industry has sprung up which takes the publicly funded data as its raw material and then adds value to it. The US weather risk management industry, for example, is ten times bigger than the European one, employing more people, producing more valuable products, generating more social wealth. ...Other studies suggest similar patterns in areas ranging from geo-spatial data to traffic patterns and agriculture. "Free" information flow is better at priming the pump of economic activity.


Boyle goes on to point out that "[some] readers may not thrill to this way of looking at things because it smacks of private corporations getting a 'free ride' on the public purse - social wealth be damned. But the benefits of open data policies go further."

How far? Boyle explains that this year, one set of monsoon rains alone killed 660 people in India and left 4.5 million homeless. So researchers have been seeking complete weather records to generate a model based on global weather patterns. The US data was relatively cheap and easily available; the European data was not. "In the wake of the outpouring of sympathy for the tsunami victims in the same region, this example seems somehow even more tragic," writes Boyle. "Will the pattern be repeated with seismographic, cartographic and satellite data? One hopes not."

This is one reason why I've been harping on the importance of the Development Agenda for WIPO. Maximal intellectual property protection doesn't always equal maximal economic benefit. It certainly doesn't always equal maximal social benefit. The Development Agenda gives the world's most influential IP organization the opportunity to pull away from this radical stance, allowing us to create IP policy that does its job -- providing the protection where it is needed for optimal economic growth -- while retaining our human values.

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

February 24, 2005

What's Up With WIPO?

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As regular Copyfight readers know, the fact that the World Intellectual Property Organization (WIPO) is considering the so-called Development Agenda is the biggest and best news copyfighters worldwide have heard for years. The big question here: Will WIPO unlock its considerable power to help humanity by pursuing a range of initiatives that reflect such notions as "balance," "innovation" and "access"? Or will it remain mired in an "IP uber alles" philosophy that considers any and all "strengthening" of intellectual property rights to be the proper fulfillment of its mission?

The latest developments are promising: WIPO has agreed to a number of meetings in April where the Development Agenda will be discussed. Lately, however, some non-government organizations (NGOs) have started to worry that they will be excluded from the meetings because WIPO hasn't yet accredited them. It's a unique moment in WIPO history, and hashing through the pros and cons of the agenda will require the perspectives and expertise of organizations that are focused on public interest and development issues. Yet there's no guarantee that these groups will be accredited and their voices heard.

Yesterday, David Tannenbaum of the Union for the Public Domain published a terrific post over @ LawMeme that provides insights on the situation from CPTech's Jamie Love. Love is working to gather details from WIPO about the process for admitting NGOs to ensure that people who have vital experience and authority in these matters will not be excluded. If you care about the direction of intellectual property law and policy, the post is a must-read/must-link/must-republish. It's important that the public knows what's happening here. Let's shed some light.

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

February 23, 2005

EULA Nets Careful Reader $1,000

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If EFF's white paper on horrendous end user license agreements was the stick, we now have the carrot. Reports Slashdot:


When Doug Heckman was installing a PC Pitstop program, he actually read the EULA. In it, he found a clause stating that he could get financial compensation if he emailed PC Pitstop. The result: a $1,000 check, and proof that people don't read EULAs (3,000 people before him didn't notice it). The goal of this was to prove that one should read all EULAs, so that one can see if an app is spyware if it is buried in the EULA.

Brilliant, brilliant idea.

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

God created love; God created boobs too

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Posted by Alan Wexelblat

(pun fully intended)

The Detroit Free Press reports that muralist Ed Stross is looking at a fine, jail time, and mandated destruction of his intellectual property because someone is offended by his take on Michelangelo's Creation of Man. Not only is he being required to paint over Eve's au naturel breasts, he's required to excise the word "Love."

Apparently what's good enough for the Sistine Chapel isn't good enough for Motor City.

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

February 22, 2005

Judge Says FCC "Can't Regulate Washing Machines"

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Declan McCullagh has the scoop from inside the courtroom today in ALA v. FCC -- the legal challenge the broadcast flag tech mandate. It appears that two of the three judges on the panel are, shall we say, a touch skeptical of the FCC's authority to impose it:


"You're out there in the whole world, regulating. Are washing machines next?" asked Judge Harry Edwards. Quipped Judge David Sentelle: "You can't regulate washing machines. You can't rule the world."

Update (12:23 p.m.) - via Tech Law Advisor's Kevin Heller, a GW law student's running notes from the oral arguments.

Update #2 (4:31 p.m.): The recently launched EEJD weblog has the mother lode of links & commentary on today's arguments.

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

Going Back to the "Future"

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What happens when new technologies are increasingly created according to the design dictates of Hollywood and the FCC? Yesterday's obsolete "junk" starts looking more and more attractive.

Ed Foster at the Gripe Line:


After noting the popularity of HDTV devices that are not yet broadcast-flag compatible and industry efforts to even restrict analog devices, one reader started looking at his old equipment in a new light. "I recently tossed three old VCRs because they were broken, and with the cost of repairs so much higher than the cost of a replacement unit, figured it wasn't worth the effort," he wrote. me. "I am beginning to think I made a mistake. Do you suppose my old 2X CD drive that I got with my Mac in 1998 might be worth something after all?"

Maybe so. In fact, I'm wondering if it might not be a good idea to hold on to any pre DRM-era TV sets, DVD players, CD drives, Tivo or other DVRs, hard drives, motherboards, and versions of Windows and other software that don't have to activated.

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

February 21, 2005

No Mandate for Broadcast Flag Tech Mandate

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The New York Times runs a piece laudably underscoring the fact that Congress didn't require the FCC to implement the broadcast flag technology mandate. Instead, the Commission responded directly to representatives of the motion picture industry, which has so far failed to demonstrate that the flag will do anyone any good.

Later: Prof. Felten casts a critical eye on other aspects of the piece, pointing out that the author draws the wrong conclusions about the flag: "If the Broadcast Flag actually did reduce infringement, then imposing it would only reduce broadcasters' incentive to switch to high-res broadcast. Looking at the evidence, though, it could hardly be more clear that the Broadcast Flag won't reduce the availability of P2P content at all...The real story here, for an enterprising reporter, lies in how the MPAA convinced the FCC to mandate the Broadcast Flag despite offering only these weak arguments in the public proceeding."

Later #2: Mike Godwin, who is quoted in the NYT piece:


The article's not bad, but if I could change it I would have had the story distinguish more clearly between (a) downloading a TV show that originated as analog cable TV (and in reduced-resolution format) in six or seven hours and (b) downloading full-resolution HDTV, which would take maybe ten times as long or longer. I did the former; life is far too short for me to experiment much with the latter.

The whole argument for the broadcast-flag regime is that downloading full-resolution HDTV was going to be easier than downloading digitized analog television. What's easy to demonstrate is that downloading even lower-resolution analog-originating television is hugely time-consuming -- the problem only gets (much) worse with HDTV. In effect, HDTV's huge and inconvenient file sizes are themselves a protection against digital piracy.


[Note: This post has been edited slightly for clarity.]

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

February 20, 2005

Even Lars Approves

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...of Beatallica, that is. BoingBoing's Xeni Jardin has the scoop.

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

Ouch, There's a Patent in my Palm!

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Posted by Wendy Seltzer

The new Treo arrived, and apart from some SIM and Cingular issues, seems to work well. It seems that software patents have stopped it from being even better, though.

The Treo keyboard is very good, for something with chiclet keys, but there are times when Graffiti, Palm's early written-character-entry system, is easier. The Treo 650 doesn't provide out-of-the box access to Graffiti, but it turns out the device still has the character recognition buried inside. Installing the free Graffiti Anywhere enables you to invoke that capability by writing anywhere on the screen.

Great! but here's where patents get in the way. When I first learned Graffiti on the "Palm Pilot" (a name killed off by trademark demands), it used a set of single-stroke characters, with the exception of the standard "X". A pain to learn, perhaps, but quick to enter ever after. I start up Graffiti Anywhere, start writing this is a test, and wind up with 'hls. Hmm.

Then I remember Xerox's patent infringement suit against 3Com. Xerox claimed ownership of a system for recognizing "unistrokes" -- characters written in a single stroke -- and sued. 3Com defended by arguing, among other things, that Graffiti did not infringe because the "X" took two strokes. A bit of Googling and Westlawing turns up a 1997 complaint against U.S. Robotics, a trip to the Federal Circuit, and finally, a 2004 judgment from the Western District of New York finding the patent invalid.

Good news, but (there's always a but), in the meantime, 3Com Palm (now split from 3Com) decided to dot its I's and cross its T's (literally) to hedge its bets against potential damages or injunction: In 2003 it licensed from Jot the more cumbersome two-stroke Graffiti 2.

Or, as PalmOne explained in its 2004 Form 10K

We cannot assure that palmOne will be successful in the litigation. If we are not successful, we may be required to pay Xerox significant damages or license fees and pay significant amounts with respect to Palm OS licensees for their losses. It may also result in other indirect costs and expenses, such as significant diversion of management resources, loss of reputation and goodwill, damage to our customer relationships and declines in our stock price. In addition, Xerox unsuccessfully sought and might again seek an injunction preventing us or Palm OS licensees from offering products with Palm OS with Graffiti handwriting recognition software, even though we have largely transitioned our products to a handwriting recognition software that does not use Graffiti as well as to physical keyboards. Accordingly, if Xerox is successful, our results of operations and financial condition could be significantly harmed and we may be rendered insolvent.

Even now that the Xerox patent has been ruled invalid, no one seems to be rushing the original Graffiti back into production. Once again, end-users lose out. A seven-year patent fight leaves even big companies exhausted. So that's why I can't write an undotted "i" on the shiny new Treo. Yet another reason to be glad not everyone's rushing into the software patent game.

Comments (3) + TrackBacks (0) | Category: IP Markets and Monopolies

February 19, 2005

Grokster Update: Time Out for the US Solicitor General?

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Via Derek Slater via James DeLong, the news that the US Solicitor General is asking the Supreme Court for 10 minutes in the Grokster oral arguments to speak on behalf of the content industries. DeLong argues that this "throws the full and considerable weight of the government onto the scales," and that the chances that the Ninth Circuit will be reversed are now "close to 100%."

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

Notable + Quotable

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So many links on copyright and fair use, so little time. Here are few that caught my eye in the past week:


Via Frank Field via CoCo, Metallica frontman James "let's sue Napster dead" Hetfield, on Beatallica, the band that recently received a C&D [PDF] for offering remixed versions of Beatles and Metallica tunes: "'Yeah. I heard that. That was amazing. Someone put a lot of thought and talent into that man!...I heard it online. It was about a year ago, or more. It was pretty amazing. It was pretty well thought out so I'm glad there's people like that in the world to do that and it's very entertaining for us, for sure!'"

Ronald Coleman @ Likelihood of Confusion, commenting on the tattoo artist suing NBA star Rasheed Wallace for displaying his copyrighted work in Nike ads: "Rasheed is a money tree and this guy wants to snip off a branch because he fortuitously got to carve something in the bark. He is seeking rent. There's no right or wrong about it, really, but the rules we decide on probably should address the almost certain expectations of both sides that the deal was a tattoo for $450 -- not a one-time license for a 'graphic.'"

Copyright guru/prolific Sivacracy author Ann Bartow, commenting on WB's planned remix of the Looney Tunes characters, the "Loonatics": "Cripes, can't the copyright maximalists do something about this travesty? :>)"

Prankster/author/professor Kembrew McLeod, describing his adventures in trademarking the phrase, Freedom of Expression®: "When talking to reporters who responded to a press release I sent out, I played the quasi-corporate asshole to Brendan's indignant anarchist underdog, spouting poker-faced lines such as 'I didn't go to the trouble, the expense, and the time of trademarking freedom of expression® just to have someone else come along and think they can use it whenever they want.'"

EULA critic Ed Foster, commenting on EFF's defense of three programmers against a Blizzard Games EULA that forbids reverse-engineering even though that's a fair use under federal copyright law: "The only things that are at stake in the case are open source programming, the concept of fair use, competition and innovation. Hey, no pressure, guys."

Annalee Newitz, encouraging those fed up with EULAs to do something about it: "With consumer activism, as well as actions that push our legislatures and courts to change consumer protection laws, we can prevent corporations from taking away our rights one mouse click at a time. If you have been harmed by a EULA, or threatened with legal action because of one, EFF wants to hear your story. Email us at EULAharm@eff.org. "

LawMeme blogger/Creative Commons & EFF alum/EULA critic James Grimmelmann, sharing the terms of the Best. Clickwrap. Evar: "'Incoherence Copyright (c) 2004-2005 Greg Hazel and Steven Hazel. All rights reserved. By installing this software, you agree that you have seen this copyright notice.' And that's it."

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

How Does Your EULA Suck?

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Annalee Newitz counts the ways in a brilliant new white paper that provides example after example of stomach-turning end user license agreements (EULAs), explaining precisely how raw the deal is for anyone who clicks "I agree." Below, the paper's list of common EULA terms. You'll get the gist, but do read the whole thing. It's a pleasure to read (but for the stomach-turning part).

Excerpts [formatting and emphasis, mine]:


  • 1. Do not criticize this product publicly. Snip: "Many agreements on database and middleware programs forbid the consumer from comparing his or her product with another and publicly criticizing the product. ...Not only do terms like these prevent people from engaging in free speech, they also undermine fair competition in the marketplace. Microsoft, for example, can publish benchmarks comparing its database products to open source alternatives. And yet their EULA terms suggest that the authors of open source products cannot publish the results of their own comparisons. What this means is that the only information consumers have access to is extremely one-sided and potentially biased."
  • 2. Using this product means you will be monitored. Snip: "Many products come with EULAs with terms that force users to agree to automatic updates -- usually by having the computer or networked device contact a third party without notifying the consumer, thus potentially compromising privacy and security. ... Agreeing to [a McAfee EULA] seems to mean you may be a McAfee subscriber forever: "Upon expiration of your subscription to the Software, the Company may automatically renew your subscription to the Software at the then prevailing price using credit card information you have previously provided."
  • 3. Do not reverse-engineer this product. Snip:" 'Reverse-engineering,' which is often forbidden in EULAs, is a term for taking a machine or piece of software apart in order to see how it works. ...Without reverse-engineering, consumers are unable to tailor software and devices to their liking -- they can't create a custom version of a gadget so that it can work with other electronics they own. They can't turn off features that they don't like. Even worse, EULAs that forbid reverse-engineering also threaten healthy competition in the marketplace by forbidding people from creating innovative new products that enhance older ones."
  • 4. Do not use this product with other vendors' products. Snip: "Vendors use EULAs to make consumers agree that they won't use products that evaluate the performance of the software they've bought, or that can be used to uninstall all or part of the program. ...Kazaa echoes these terms when it warns users that they can't use products that might 'monitor or interfere' with the operations of Kazaa's software...What this means is that you can't run any programs (like packet sniffers) that analyze the performance of Kazaa, evaluate what it's doing, or change the way it operates on your computer. Kazaa reserves the right to tell you what you can and cannot do with the program on your own machine."
  • 5. By signing this contract, you also agree to every change in future versions of it. Oh yes, and EULAs are subject to change without notice. Snip: "Put simply, this means that when you install iTunes, you are not only agreeing to all the onerous terms in the box, but you are also agreeing to future terms that may appear in the iTunes Terms of Service months or years from now. These terms are subject to change without notice, and you don't even get a chance to click through this future 'contract' and agree."

  • 6. We are not responsible if this product messes up your computer. Snip: "Clicking yes on EULAs containing this common clause means that the consumer cannot file class-action lawsuits against the vendor for faulty products, or for products that do not do all the things that the company advertised they would. This kind of agreement would seem absurd if applied to other kinds of consumer electronics. If you buy a microwave, there's a large body of common law and statute that gives you rights against its manufacturer if it blows up, burns you, or singes your countertop. ... But if you buy a piece of software, the EULA often disclaims all that prior law, without putting alternate consumer protections in its place."

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February 18, 2005

Speaking of Which...

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Here [PDF] are some very bright ideas that you can download to your desktop. Also available for purchase in bright, shiny new hardcover:
FOEcover.gif
(Via Larry Lessig.)

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Bright ideas, delivered to your desktop

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Posted by Alan Wexelblat

I come from a technical background - one in which an enormous amount of the intellectual property is locked up in journals so pricey that only libraries and corporations can afford them. I'm a fan of PLoS, the Public Library of Science, a conscious effort to push more scientific intellectual property out into the useful public sphere.

Now comes ResearchChannel, streaming scientific knowledge and ideas over television (cable) and over the Web to your desktop. They are positioning themselves as "the C-SPAN of scientific and medical research." That's probably a catchy phrase but it suggests something more dull than I'm hoping they produce. In theory, scientific and technical ideas can be locked up in inventors' notebooks and then in tightly protected patents. This makes money for corporate masters, but can impoverish the inventive commons. ResearchChannel can be a testament to a philosophy that says we all get richer by encouraging the free and open flow of scientific intellectual property.

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It's a shame those UK viewers are so...

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Posted by Alan Wexelblat

Reuters piece (here on CNET) indicating that the UK is the biggest market for TV downloads. Oops, did I say 'market?' Silly me, that would imply someone was trying to meet consumer demand. No, this is not a market, friends. This is a "wave of illicit activity," or somesuch balderdash.

My guess is that we'll see the usual pattern of meretricious Cartel behavior. First, they'll deny it's a problem. Then they'll scream it's a huge problem and demand immediate legislation. At the same time they'll sue their customers, all the while clinging to outdated business models that are based on the absurd notion that the flow of electrons on a wire will obligingly stop at a national border. This will be followed by a wave of public FUD, the suing of several innovative small companies into oblivion or lapdog-like obeisance (vis iMesh).

About ten years later they'll finally launch something that might approximate what BitTorrent was doing two years ago, at sky-high prices. The failure of this commercial petit mal will be named as evidence that there never really was much of a market anyway. That is, unless Apple beats them to the punch.

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Broadcast Flag "Just As Important As Grokster"

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So argues Susan Crawford in a post on the forthcoming oral arguments in ALA v. FCC -- that is, the legal challenge to the FCC's broadcast flag technology mandate (emphasis & hyperlinks, mine):


Did the FCC have jurisdiction to enter the broadcast flag order in November 2003? If it didn't, we'll need to go to Congress to discuss all this.

Like the Grokster case, the flag situation raises this question: can one industry force another to constrain new general purpose technologies in the name of copyright protection? Like the CALEA dispute (prompted by the demands of another great industry -- law enforcement), the flag represents an attempt to have high-tech innovators ask permission before innovating.


Bonus: Prof. Crawford's Shortness of Vision: Regulatory Ambition in the Digital Age [word doc].

(Cross-posted @ Deep Links.)

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New Law Proposes Reduced FOIA Fees for Bloggers

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...because they are journalists:


Importantly for bloggers, the Cornyn-Leahy legislation grants privileged FOIA fees for bloggers and writers for Internet outlets, providing the same status as old media and will protect access to FOIA fee waivers for legitimate journalists, regardless of institutional association - including bloggers and other Internet-based journalists.

The law in question is the OPEN Government Act (S.394), introduced Wednesday by Senator John Cornyn (R-Texas) and co-sponsor Sen. Pat Leahy (D-Vt.). It's aimed at reforming laws including the Freedom of Information Act of 1966 (FOIA) to make it easier for journalists and others to access government documents. According to the ACLU, it would "ensure that requesters have timely information on the status of their requests, set enforceable time limits for agencies to respond to requests, implement news media status rules that recognize the reality of freelance journalists and the Internet, and provide strong incentives -- including both carrots and sticks -- for agency employees to improve FOIA compliance."

Bravo to Senators Cornyn and Leahy. I can't imagine that we've ever needed this kind of legislation more than we do now.

Here are Sen. Cornyn's remarks from the floor; additional analysis of what this means for bloggers @ Robert Ambrogi's Media Law blog.

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February 17, 2005

Everybody into the pool

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Posted by Alan Wexelblat

If you've seen my blogging previously at tech_ip you know that I'm in favor of something ASCAP-like for digital music. That is, I'd like there to be a central repository into which artists could deposit their digital works and from which anyone would be free to license works for download, streaming, exhibition, etc. One of the reasons I'm pro-Creative Commons is that I think we need much more experimentation in this area. Let a thousand flowers bloom.

Now a longtime reader of mine has pointed me to Alan Cohen's article on law.com about patent pools. This article, which is written with Cohen's usual depth and clarity, focuses primarily on MPEG LA, the patent pool for MPEG-2 technologies.

The concept of a patent pool is pretty much exactly what it sounds like - companies contribute their patents and the pool is licensed as a whole. In this case, MPEG LA licenses add a few bucks to the cost of a DVD player and a few pennies to the cost of a DVD. In return, the entire process of licensing relevant IP and remunerating inventors is vastly simplified. This is, potentially, quite good.

Of course, as Cohen points out, the devil is in the details. Past patent pools have had a checkered history, with some being obvious attempts to circumvent price-fixing laws. IP holders probably make less money by pooling their technological innovations than they would if they could license everything separately. However, from a market standpoint, removing that large an amount of friction (MPEG LA has 650 patents from 24 holders) is likely to be a huge win.

From a consumer perspective it's also likely to be a win, as it means companies will have an easier time making cross-compatible systems and should be able to focus their attention on new innovations instead of on trying to worm their way around some patent they can't manage to close a licensing deal on.

Unfortunately, one of the thorny issues missing from the article is that of royalty-free (RF) or donation of patents. I'm guessing that pool participants would give up their ability to do that, which would be bad for free/open standards and software, but that's not immediately clear.

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Copyfight: The Documentary

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It turns out we have a namesake documentary project in the works:


While mass media continue to expose the general public mostly to restrictive interpretations of copyright, there has been an increasingly lively debate among scholars from a wide array of disciplines that challenge such interpretations. As indicated by the popularity of file-sharing networks and their millions of users, people are aware that not all is right with the current all rights reserved copyright regime. In the hope that it will provide intellectual ammunition and inspire them to take an active role in the copyright reform process, the documentary will present these users with an alternative narrative about copyright.

The aim of The Copyfight is to serve as a link between the scholars' debate and the general public. ...To reach its objective, The Copyfight will adopt a two-front approach. First, a sixty-minute documentary will be produced and released under a permissive Creative Commons license to allow file-sharing. Second, the website will serve as an index of videos related to copyright reform - be it recorded lectures or moderated debates. Along with the interviews gathered to produce the documentary, these videos will be available for the public to download and edit for their own documentary narrative.


Marvelous.

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What They Said

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If you haven't already, check out the Derek Slater/Edward Felten blogalogue on the newly released Cato paper, Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright Problems -- a discussion that prompted Prof. Felten to define a new litmus test for whether the recording industry is truly competitive vs. a cartel:


  • Derek Slater: "[The paper's arguments] highlight an important aspect of the current debate surrounding Grokster: what does it mean to support 'market forces' or the 'free market'? The paper's conclusion is that market forces will resolve copyright holders' concerns and the government should stay out. Yet, many would say that the DMCA and extended secondary liability are unfortunate interventions in the market."
  • Ed Felten: "How can we tell whether the record industry is responding competitively to DRM? An interesting natural experiment is about to start. MP3Tunes, a new startup headed by serial entrepreneur Michael Robertson, is launching a new music service that sells songs in MP3 format. Will the major record companies license their catalogs for sale on MP3Tunes? In a competitive market, they would license to MP3Tunes."

Update (12:55 p.m.): Prof. Felten's follow up: "It makes sense to rely on market competition to blunt the potential downside of DRM. That strategy will only work if we adopt pro-competition policies, or at least reverse the anti-competition aspects of our current policy. Talking about competition is good; but having competition is much better."

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What He Said

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Australia's Attorney-General, Phillip Ruddock, on the Australian government's recent decision to consider whether doing things like ripping a CD to your MP3 player for your own personal use ought to be legal in Australia: "There's a reasonable argument for putting forward the opinion that when someone has bought something in one format and has acquired the copyright for it in that particular format then there is a fair use for them to take it to another format. I think it's a strong argument."

Via Kim Weatherall, a bit of background on the proposal to give Australians fair use: "The media release is here. The submission is available here. Since rumour has it that AGs are not keen on any such move ..., it will be interesting to see whether this gets any response."

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Tattoo Artist Sues NBA Star for Copyright Infringement

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rasheed.jpg
Back in the day, a tattoo artist quite rationally saw your tattoo as a free advertisement for his art. Not anymore. According to this AP story, the man who put a tattoo on the right arm of Pistons forward Rasheed Wallace is suing to stop Wallace from "displaying" his artwork in ads for Nike basketball shoes. Wallace reportedly paid the artist, Matthew Reed of TigerLilly Tattoo and DesignWorks, $450.00 for the tattoo -- but evidently that wasn't enough. Reed told the Associated Press he "expected to benefit from the exposure."

Over the past year we've unfortunately witnessed some absurd examples of copyright overreaching, from attempts to extort online animators for parodying folk songs to efforts to ban video game players from pretending to be superheroes -- and now the suggestion that athletes should cover their tattooed arms if they wish to avoid lawsuits. Rarely has the need to defend fair use been so vividly illustrated.

For more such illustrations, check out the definitive reference tome, David Bollier's Brand Name Bullies (see J.D. Lasica's terrific review).

(Cross-posted at Deep Links.)

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February 16, 2005

Susan Crawford: What Would Ben Franklin Do?

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I don't often get the chance to visit Susan Crawford's weblog, but when I do, I'm always well rewarded. The latest gift is a series of posts analyzing various contemporary developments in Internet law and policy from the perspective of none other than Ben Franklin. That's right -- Ben Franklin, whom Prof. Crawford argues would surely have blogged -- pseudonymously, of course.

In the latest post, Prof. Crawford nicely articulates the reason why so many people are passionate about protecting the Internet:


Amateur musicians flock to concerts; amateur radio enthusiasts keep plugging along; amateur astronomers add to our knowledge of the universe. The interactive, networked screen makes it easier for all of these amateurs to find one another -- joined by the internet as well as by their common interests. The net can be used to create intellectual common areas of all kinds, built by gift. Code is love as well as law.

This gets at something we all love about the Internet: it's a space for the curious, for the Ben Franklin in each of us. There's a lot of talk about the need to protect "innovation," but that's terribly abstract. The red-baiting is, of course, the red herring in this debate. Perhaps Ben can help us get past it to the real conversation about preserving what each "side" values about the Internet and our society.

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February 15, 2005

The One Where Richard Stallman Calls Bill Gates a Communist

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Richard Stallman at CNET, on Bill Gates' dirty little secret:


Here's what Bill Gates told Microsoft employees in 1991:

"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today...A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose."

Mr. Gates' secret is out now--he too was a "communist;" he, too, recognized that software patents were harmful--until Microsoft became one of these giants. Now Microsoft aims to use software patents to impose whatever price it chooses on you and me. And if we object, Mr. Gates will call us "communists."


Groklaw, meanwhile, shares an article translated from Danish describing what Bill told Denmark he'll do if it opposes the European software patents directive: pack up and go home, taking 800 IT jobs with him:

"If I am to keep my development center in Denmark, I must have clearity on the rights issue. Otherwise I will move to the US, where I can protect my rights," said Gates according to to Microsoft chief attorney Marianne Wier, who also attended the meeting with Anders Fogh Rasmussen.

I'm betting today will be a good press day for the FFII (Foundation for a Free Information Infrastructure) -- just in time for the planned protest march on Thursday.

Update: Microsoft : "Contrary to reports in the Danish media today, Microsoft stated that there are no plans to close the Microsoft Development Center at Vedbaek, Denmark."

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Gizmos. Up Close and Personal. Feb. 22

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Local gadgethounds who've been following the conversation about endangered gizmos are hereby invited to come hang out with Copyfight's Wendy Seltzer and others at the next BayFF event on Tuesday, February 22nd in downtown San Francisco:


BayFFFeb2005

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The Vision Thing Does Copyfight

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I'm thrilled to point you to a new podcast program by The Vision Thing featuring a number of my favorite voices in this space: Joe Gratz, Copyfight's own Dr. Alan Wexelblat, and David Bollier. It covers a variety of topics we've been discussing here at Copyfight, all hovering around a few core questions -- what's fair use? How is copyright threatening innovation and creativity? And if we reject WIPO's vision of IP extremism, what do we embrace?

On a more granular level, we get to hear Joe, Alan, and David answer questions like, "Why did people roast Marty Schwimmer when he protested having his RSS feed scraped by Bloglines?" and "How does copyrighting the Bean that Shall Not Be Photographed protect the artist -- or does it?"

Very cool, and well worth the listen -- especially if you've been too busy to do more than skim the surface of these issues.

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February 14, 2005

February 11, 2005

Thank You, Dutch Parliament!

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As the CoCo blog reports in detail, the Dutch Parliament has just delivered a solid left hook in the fight against EU software patents, joining Poland in the copyfight champion's circle.

Also see Prof. Karl Lenz's reaction, Ask Them Elsewhere, and the Foundation for a Free Information Infrastructure's (FFII) wiki post, Dutch Parliament adopts motion to block software patents A-item.

(Thanks, Rik.)

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February 10, 2005

Poland Can't Do It Alone

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Cory @ BoingBoing: "Within a week, it's likely that the fate of European software patents will be sealed. That means that you have one week to mobilize every European you know to help stop disastrous, ridiculous American-style software patents from coming to Europe. FFII has a call to action that you can sign onto -- tell your friends, get the word out, time is running out."

Robert Heverly also sends word via email that he's willing to coordinate responses/action amongst those working on these issues in the U.K. Thank you, Robert!

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Look But Don't Reverse Engineer

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Jason Schultz, commenting on the DMCA lawsuit against two people who reverse-engineered and modified a video game so they could "undress" the female characters:


"This complaint is absurd. The law allows for fair use of other people's copyrighted works without any permission needed, and one of the key things that you're allowed to do is make copies in order to reverse engineer and understand how they work. If they'd offered a competing video game with Tecmo's code in it, it's a legal issue. But here, they have simply offered a way for legitimate game owners to modify how the game looks on their screen. Its like a home customization kit. It's not competing in any way with Tecmo's product. In fact, you have to own Tecmo's product to use this stuff."

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February 9, 2005

Ready for Your Close Up, Mr. Lessig?

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Siva sends word that Larry is on The West Wing tonight -- sort of (hyperlinks, mine):


In the second scene of West Wing a character called "Professor Lawrence Lessig" walked in. The president said, "The Future of Ideas Lawrence Lessig?" Yes. Played by Rev. Jim.

Of course, he looked and sounded nothing like Larry. Still, pretty cool.


Heh. It's at times like these when I wish I had a television.

[Note to ILAW alums: I suppose this is one answer to Dave Winer's question last spring about which actor should play which professor in ILAW: The Movie. I still think Jon Stewart is the right choice for Jonathan Zittrain.]

Update: via BoingBoing, amusing details through a spoiler site, hinting that the fictional Larry is as idealistic and persistent as the real one:


Lessig thinks that the most important job they have is to instill those values in the leaders through discussion & debate. Toby says he's talking about 8 people on a DC sightseeing trip. Does Lessig think he's going to reverse 50 years of brutal dictatorship by teaching those 8 people democratic values? Lessig says the 8 are all the President's men & they're teaching them how to scrutinize power.

Update #2: Video [20MB].

Update #3: Larry himself, characteristically humble: "My story is on the West Wing because I was at Harvard -- not because the brilliance of my intervention had been noted and reviewed, but because I was teaching talented kids who would prove to be important."

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Toward a Kinder, Gentler Debate?

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See:


  • David Weinberger @ Joho: DRUMS - Digital ID for Stuff: "Scott Matthews has an idea-in-progress called DRUMS. It's a database of creative works and relevant metadata including, crucially, rights and permissions. It'd be maintained by a trusted authority, if we can ever find one of those again. Scott thinks this might provide the infrastructure required to develop a middle path between the copyright totalitarians and the free culture hippies. (Disclosure: I am a free culture hippy.)"
  • Patrick Ross @ PFF: More on Middle Ground: "Some have criticized me -- fairly -- for not putting forward a constructive middle ground approach in my CNET piece. I'm working on one now that I hope to have published soon, but I wanted to put Scott's out there now. I'm not completely sold on Scott's proposal, but he wants it to be a starting point for constructive dialogue, and I'm all for that."
  • Siva Vaidhyanathan @ Sivacracy: Every Once in a While: "...someone immersed in the copyright debate takes a chance and proposes a new way of doing things that might loosen the deadlock between the Free Culture Movement and the content industries...I am sorry that Scott chose the ad-hominem-addicted hacks at the Progress and Freedom Foundation to release this plan. But they asked for it by falsely portraying themselves as seeking the 'middle ground.'"
  • J.D. Lasica @ Darknet: Finding middle ground in the copyright wars: "Laws aren't the answer. Inventive, forward-looking new business models are."

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February 8, 2005

Toward a Kinder, Gentler WIPO

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David Bollier, commenting on the continuing evolution of the Development Agenda -- or as I've been calling it, the proposal for WIPO 2.0:


This is a big deal. Right now, large companies claim ownership of the genes in genetically modified crops and patents on vital medicines that cost too much for developing nations to afford. Large companies are invoking patent rights to interfere with the growth of free software and open source software. Companies are trying to introduce "digital rights management" schemes for television, DVD and CD technology, so that people's access to works, and their ability to record and share works, could be strictly regulated. Companies are even trying to control how (and whether) public libraries may lend out digital works for free.

The goal of an a2k [access to knowledge] treaty would be to reverse this tide.


A very big deal indeed. Join the discussion about the treaty here; check out notes from last week's meetings prepping for forthcoming WIPO negotiations here.

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Palm: How to Lose Fans and Alienate Developers

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Posted by Wendy Seltzer

As reported by Gizmodo, PalmOne has added $100 to the price of its unlocked Treo 650 GSM only a few days after releasing the product. Most likely, it did so under pressure from the cell phone carriers. I was lucky (or obsessive) enough to get my order in at the original price, but I'm less certain now that I'll want the device when it arrives.

I was willing to pay a premium over the Cingular-locked-subsidized version, because I'm tired of the petty tyranny of cell-phone providers who want to control what users can do with devices they've bought. After dealing with the TMobile-constrained Sidekick, I wanted a device that was open and customizable. Once I've paid for the service, I should be able to choose what data to send and receive, and how to use it.

What PalmOne doesn't seem to understand is that its customers are buying a platform, not just a phone. Those who buy the $400-600 Treo instead of a $100 phone (free with cell servitude) buy it for the rich set of applications available -- many of them developed by other users.

I don't develop for the PalmOS and probably never will, but I benefit from the "virtual network" around an open platform because I can add any of its array of third-party applications. Since every application written makes the platform (marginally) more functional, every developer who joins the network adds potential value. That value redounds to Palm -- without any extra work on Palm's part -- because customers still need Palm hardware to take advantage of this "network."

Raising the price of the full-functioned unlocked Treo turns away those user-developers. By making it more expensive for users to develop for the platform, Palm makes the device less attractive even to the non-developers. By alienating the "alpha-geeks," in Tim O'Reilly's term, Palm has hurt many more than the few hundred people who might have bought the unlocked Treo. It hurts every user of the platform, and its own bottom line. I hope I haven't just bought a $600 paperweight.

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February 7, 2005

February 6, 2005

RIAA Sues Dead People

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Not at all surprising. In fact, it could even be amusing, since in this case no one but the RIAA has to pay for its mistake:


Lawyers representing several record companies have filed suit against an 83 year-old woman who died in December, claiming that she made more than 700 songs available on the internet.

"I believe that if music companies are going to set examples they need to do it to appropriate people and not dead people," Robin Chianumba told AP. "I am pretty sure she is not going to leave Greenwood Memorial Park to attend the hearing."

Needless to say, this is not the way it usually goes. Most RIAA targets are alive and well, and must deal with the consequences of being sued by a group that has fought in court to make the process quick and painless -- for the RIAA.

Due process is, after all, sort of inconvenient. Why not round up all of the people you want to sue in one big, easy-to-bulldoze group? So what if their cases have nothing to do with one another, or the ISP you want information from is a couple states away from a target's jurisdiction? And what's all this nonsense with having to present a court with actual evidence of wrongdoing before you can strip an Internet user of her anonymity? Whatever happened to guilty until proven innocent?

In fact, the RIAA doesn't usually meet much resistance to its round-'em-up-and-shoot lawsuits. As this Daily Texan article reports, it can usually skip right to the good part: collecting the settlement fee:


It was an ingenious plan: Lawyers would pay around $200 in court fees to subpoena an ISP into revealing the owners of a list of IP addresses the RIAA had accumulated. Before November, the RIAA was able to gather around 50 identities per subpoena. Assuming each person received a letter with a phone number to a similar settlement center, and each person decided to pay a little now instead of a lot later by settling, and each person settled for the then-average $3,000, then for $200 the RIAA could make an easy $150,000.

I can count on at least a few Copyfight readers to respond with, "So what? Isn't copyright infringement illegal? Someone has to pay for the damage infringement is doing to the record labels -- why not the people accused of the crime?"

Jim Griffin has been talking this over with the folks on the Pho list, and his response is both sensible and well-articulated:


We license all manner of uncontrolled use of music, but not this. ...Why not admit [it's] impractical and inefficient to control these songs one by one? Why not acknowledge the $20,000 iPod is not a business model?

Licensed or unlicensed is the question, and if not, why not?

Sound recording companies are paid nothing by radio broadcasters. They've built multi-billion-dollar businesses without paying those whose sound recordings they use. Are they they pursued by record companies? Of course not. Legal, no license necessary. Is anyone beating the hallways of Congress seeking to make them pay? Is anyone litigating this case through the courts? Of course not. Why pick on the powerful and wealthy?

There was a time the stink was about copying discs, but that was before Sony and Universal took Roxio ownership and leadership. After that, it was all about peered sharing, even though disc copying delivered the recipient of the process a perfect copy of that available for sale.

Better to chase teen-agers, better to sue old women, better to berate the individual user, all of whom are paying far more today for media through multiple flat-fee, all-you-can-eat buffets than they ever paid before.

Only the sound recording companies cling to their pursuit of this notion of control and calling those who do not comply thieves, and in doing so they leave billions on the table that should be divided fairly amongst creators and rights holders.


There's no question that P2P-enabled copyright infringement is a problem. But the lawsuits have not, and will not, solve it. It's time for a better way forward.

[Note: this post was expanded from a shorter, now-deleted post published on Feb. 5th.]

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February 4, 2005

Comments Are Back

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Phew. Thanks to everyone for your patience.

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Are Bloggers Journalists?

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Posted by Alan Wexelblat

Nice piece by Randy Dotinga in The Christian Science Monitor summarizing the issues about to be argued as Apple sues two bloggers for spilling what Apple calls secrets. Dotinga's story focuses on the question of whether the bloggers may be shielded under California statutes that protect journalists.

That's obviously of no small interest to the bloggers being sued, but there are larger implications. In particular, bloggers may yet force the mainstream social consciousness to reconsider its view of what makes something news and what makes something reporting. This view has been under occasional challenge from places like the Drudge Report over political events, but these seem to fade as quickly as they burst on the scene.

Dotinga notes that the blogs' claimed readership puts them ahead of many recognized paper publications. So if it's not readership size that makes a journalist, perhaps it's the structure of a newspaper. But it seems antithetical to our notions of reporting to claim that unless your material is reviewed by an editorial board. Was James Madison not a journalist when he reported on the goings-on in Colonial America? I doubt he had an editor reading his broadsheets.

Perhaps then, the argument goes, bloggers are not journalists because they don't maintain the vaunted "objectivism" of mainstream journalists. If all they're doing is printing what they have opinions about then they're no better than William Safire... oops, scratch that argument.

Maybe it's about the money. Some bloggers talk about things and then take money from companies with an interest in those things. Oh, you mean like Armstrong Williams or Maggie Gallagher? Both of whom have admitted taking money under the table to promote Bush administration propaganda campaigns? We may call them bad journalists (no journalist biscuit) but we don't seem to have any doubts that they are journalists.

It seems to me that what gets under the skins of anti-blog people like Randall Bezanson, quoted at the end of Dotinga's piece, is that blogs fail to follow the familiar hierarchical model that has dominated American media for at least the last two centuries. I mean, really. If you let the people start talking to each other instead of lapping up the corporate consensus pap who knows what kind of trouble will follow.

Comments (3) + TrackBacks (0) | Category: Speech

The DMCA wants to be violated

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Posted by Alan Wexelblat

Turns out that DVDs aren't the only things that are region-coded. Games, such as those for Sony's PS2 console, are also often region coded. And, no surprise, there's a whole industry out there in getting around them.

As an aside, I can't figure out for the life of me why a game should be region-coded. Movies can fall back on the argument of theatrical releases and non-US theatrical release timing versus DVD sales timing yadda yadda. Dumb, but it's an argument to be made. I'm baffled what the comparable reasoning is for console games. In particular I don't see why region coding is not an a priori argument that the industry is practicing discriminatory pricing and similar practices that the WTO frowns upon.

In poking around, this page on how to circumvent region coding for PlayStation 2 caught my eye. It's neat in that it describes a purely external mechanical process, rather than the resistor cutting or soldering approaches that are more commonly seen.

The prevalence of these kinds of pages attests to two things - one is the ingenuity of the consumers. Sony's customers are clearly smarter than Sony gives them credit for. Also, although these procedures may seem onerous they're clearly perceived by the end user (a.k.a. paying customer) as less onerous than living with the Cartel-imposed restrictions. Thus we see how mindless DRM promotes policy. User experience trumps everything.

(Those playing along at home may have noticed that this blog entry may itself be a violation of the DMCA; it would certainly be a violation of the proposed Induce legislation. That's because I linked to the taint.org Web page. This fact is direct evidence of what's wrong with copyright law and thiking in America, in case anyone was still wondering.)

Comments (4) + TrackBacks (0) | Category: IP Abuse

Commons, Anyone?

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David Bollier's blog, On the Commons, is a must-read, must-blogroll, must-aggregator. Check it out.

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

Comments, Anyone?

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Sorry guys -- for the past two two days, no comments that you've posted have shown up on the site, although I've seen them come through email. Our technical people are looking into it -- hold tight.

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

February 3, 2005

BitTrickle

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Mike Godwin runs a fine-toothed comb through the much-discussed NYT article "Steal This Show," pointing out that the authors appear to have swallowed a few MPAA-propagated myths:


Let's leave aside whether time-shifting television with an off-brand counterpart to TiVo is "stealing." A more important problem with the article is that it gives a false impression of the normal user experience of BitTorrent. [According to the article,...] "On the kind of peer-to-peer site that gave the music industry night sweats, an episode of 'Desperate Housewives' that some fan copied and posted on the Internet can take hours to download; on BitTorrent, it arrives in minutes."

That hasn't been my experience of BitTorrent, and I doubt many other ordinary users routinely experience the downloading of TV programs in "minutes." On the off chance that BitTorrent speeds had suddenly improved since I had last used the application, I conducted an experiment...downloading Episode 13 of "Huff"...took six hours...An HDTV version of the episode, in full resolution, might have taken ten times longer.

Don't get me wrong: BitTorrent is a significant advance over last-generation file-sharing programs, especially in terms of maximizing use of bandwidth. What it doesn't do, at least for ordinary broadband users, is enable the kind of rapid downloading of TV content that the Motion Picture Association of America believes it must attack.


A few additional thoughts over @ Deep Links.

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

Ding Dong, the EU Software Patents...

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...you know the rest. But as Cory warns, they may rise again. Here's where EU-based patentfighters can help out.

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The DMCA Is to the Eiffel Tower As...

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You know you've been obsessing over copyright law for far too long when you see the copyrighted light-bedecked Eiffel Tower as a metaphor for the DMCA, which makes proprietary everything wrapped up in copy control mechanisms -- regardless of whether the underlying material is a vital part of our shared culture.

Speaking of the DMCA, Michael Madison continues his winning streak of intriguing posts with one that proposes new rhetorical/legal strategies for DMCA critics -- including asking whether the "legal to own; therefore legal to sell" principle expressed in the Extreme Associates case could help us in the copyright context. In other words, if the DMCA is killing first sale, could Lawrence/Extreme Associates help revive it?

Update: Marty Schwimmer: What To Do When You Can't Publish Nighttime Photos Of The Eiffel Tower.

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

February 2, 2005

Information wants to be paid for

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Posted by Alan Wexelblat

Mark Glaser has put up a long and thoughtful piece summarizing the issues around pay-for-access archives of news content. This issue is particularly troublesome for bloggers and other instapundits who would like to be able to point to content in authoritative sources like nytimes.com but if they do so they risk their links becoming dead after a couple days.

Nobody's denying that the papers own this content. And they do realize some revenue from paid access to the archive content as well as database services such as LexisNexis. The argument revolves around what it means to be a source of record if that record only exists for a short time. I doubt many people dig through the archives of blogs - even Copyfight. But the fact that the archives are stable means that search engines can find and index the content. It means that the cross-referencing that makes the Web a vital peer communications medium can continue. But many newspapers continue to stand apart, protecting what may be in fact a tiny revenue stream rather than realizing the gains of being the source of record on the Web.

In my blogging I try very hard not to cite NY Times or Boston Globe (boston.com) stories because I know they'll go away. There are other sources, such as sfgate.com, which I consider equally authoritative and much more blog- and Web-friendly. Given the chance, I'll put up a link to them instead. Does that drive traffic and revenue for them? I dunno. But it sure as heck doesn't drive any for the gray lady.

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

Teaching Still Legal

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Michael Madison's two cents on the Virginia teacher threatened for planning to show "Eyes on the Prize" to students:


Does anyone actually read the Copyright Act? Take a look at section 110, subparagraph (1). Teachers who show copyrighted films to their students in class are not infringing anyone's copyrights. Period. No permission or license is necessary, and fair use is irrelevant.

Via Siva, the cited section:

§ 110. Limitations on exclusive rights: Exemption of certain performances and displays

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;


Update: Joe Gratz: "In this case, the teacher presumably planned to use a copy of 'Eyes on the Prize' downloaded via Downhill Battle's BitTorrent links. As the law stands, that's an infringing copy, no matter what you or I or Downhill Battle think the law ought to be...Plus, there's a substantial question as to whether a showing 'for students and community members' is a showing 'in the course of face-to-face teaching activities.'"

Update #2: Nicholas Reville of DownhillBattle, via email: "Actually, the school has real, school-version, VHS tape of Eyes on the Prize."

Update #3: Elizabeth Townsend: "I think this is very very important point that teachers are often not aware. Show what you want in class. That's your right. Use it! Use it! That's part of the Copyright Act."

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February 1, 2005

Listen (Shhh) to What the Librarians Say

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Posted by

Apologies for the obscure Spinal Tap reference. Yep: I'm terribly corny. Now listen:


Several library groups have drafted a set of principles for the WIPO Development Agenda and its forthcoming Access to Knowledge Treaty...These principles are excellent: brief yet comprehensive, clear, and with perfect pitch for policy. The library groups welcome the endorsements of other organizations. Please talk to your group about signing on.

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Software Doesn't Infringe Copyright, People Do

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Susan Crawford, pointing to an NPR debate on the question whether manufacturers and retailers of firearms should be exposed to liability arising from unlawful use of their products: "Should we see parallels to the Induce/Grokster debates?"

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

DRM Means Never Having to Say You're Sorry

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Ed Foster, on the difference between a bad sneakwrap license and DRM that revokes your rights without any "ask" at all:


So what's the connection between DRM and sneakwrap terms? The common thread is that with both, customers don't really know what they're buying when they put their money down, or at least not without reading through multiple layers of fine print. And they might as well not bother to do that, because the deal can be changed retroactively by the seller as you go along. Hey, you have been granted certain rights, up until the time we decide to take them away from you, at which point you have no rights.

For the vendors, of course, DRM also means never having to go before to judge to argue that their unconscionable EULA terms should be enforced, because the DRM is judge, jury and courtroom, all rolled into one.

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