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.
In all, Justices Scalia, Souter, and Breyer were all squarely concerned about the impact on new inventors and future innovation, while Justices O'Connor, Ginsburg, and Kennedy were most interested in the interpretation of Sony and the merits of the other proposed tests. It was difficult to glean the stance of Justices Rehnquist, Stevens, and Thomas from the oral arguments alone.
My best guess is that the Court will not issue a decision that drastically hurts future technological innovation in general. It was comforting to hear that more than a few Justices recognized possible problems that future innovators would face if they reverse the 9th Circuit based on the existing Betamax doctrine.
In any patent case, the defendant has a fundamental choice: pay up, or fight. Often companies will pay up simply because the cost of paying is not much more than the cost of fighting and the risks of paying are seen as less. This can have a domino effect, where one company's choice to pay up is seen to lend validity to a patent claim and subsequent defendants are more likely to pay.
EBay bucked that trend - possibly because it saw MercExchange's patent attacking a fundamental feature - and it looks like that choice is paying off. So far - of course, Merc is promising further appeals and eBay could simply choose to use its current stronger legal position as bargaining leverage. I'm reminded of a fencing match.
Joe Gratz, via email: "The Copyright Office posted everyone's Orphan Works comments today, but they formatted the list such that the names and the comments don't line up. I fixed the list and posted the links here." Check out the list for the names of familiar people you may not have realized submitted comments -- like Legal Theory blogger Lawrence Solum. (Thanks, Joe!)
Update (March 31): Joseph Lorenzo Hall in the comments below: "The LoC has disabled access to the main comments site due to having incompletely redacted most of the documents (see this post)... but Joe's posting confirms a suspicion that they haven't actually removed the underlying files from their site (clicking through your links still gives us PDFs that are improperly redacted). I asked if Joe might consider taking his post down until they've redacted the documents (although I plan on calling them and figuring out (1) if they plan on redacting the documents and (2) why we can still get at the unredacted documents).
The idea that intellectual property law should have the protection of intellectual property as its purpose rather than as the means used toward the end of overall social betterment is a serious error that the content industry has been remarkably successful at inducing in American society.
Ask most 14-year-olds what GROKSTER is and they'll all know it as a place to find music and movies. But if you ask record and film executives, they'll tell you it is software that steals.
Yesterday the industry took their case against software developers Grokster and Streamcast to the Supreme Court. They're claiming that 85 million songs and 400,000 movies are being illegally downloaded every day without a penny paid to artists.
Grokster says it only makes software and should not be held responsible for what users choose to do with it. They say their software is similar to technologies like the video camera and the Xerox machine and that shutting them down will hobble the development of future, and important technologies for the knowledge economy.
Gelf Magazine has an excellent interview with Mark Cuban on why he decided to fund the Grokster defense. It avoids the traps the typical Grokster piece falls into -- for example, the suggestion that the case is about abandoning copyright law, or getting music for free, or robbing artists of their livelihood.
For instance, Cuban is asked what he thinks of Grokster, the software. His reply: "Have not used Grokster. Have no plans to." You'd get the same response from anyone at EFF, and likely the vast majority of amici. Why? Because this case isn't about filesharing software full stop. It's about preserving the environment for innovation.
Another nice myth-busting exchange:
Gelf Magazine: Does the Betamax precedent apply to the Grokster case, even though people are using digital technology like Grokster to amass libraries, not just to tape shows and enhance viewing convenience?
Mark Cuban: Yes. People amassed libraries on tape as well. You can pick up any movie-collector mag and see the ads to buy a VHS or DVD of any TV show ever made. That's a big library, and those ads have been there for at least 10 years. The industry doesn't care.
Katie Dean's "Camping Out for the Grokster Case" has some terrific photos of copyfighters camping out on the Supreme Court steps last night; those red noses make me grateful that many are now headed indoors for CopyNight.
Justice David H. Souter asked Donald B. Verrilli, Jr., the lawyer arguing for the Hollywood studios and the recording industry, to envision "a guy sitting in his garage inventing the iPod."
"I know perfectly well that I can buy a CD and put it on my iPod," Justice Souter said. "But I also know if I can get music without buying it, I'm going to do so." Since that possibility was so obvious, he continued: "How do we give the developer the confidence to go ahead? On your theory, why isn't a foregone conclusion from the outset that the iPod inventor is going to lose his shirt?"
That David Souter, the least technically minded of the justices, who still drafts his opinions by hand on a legal pad, could even invite a dialogue about iPods, much less suggest that he could be tempted to engage in illegal file sharing, was an indication of how this confrontation of powerful interests had engaged the court.
But by the end of the lively argument, any prediction about what the court will actually decide appeared perilous.
C-SPAN: "Fred von Lohmann, Senior Staff Attorney for the Electronic Frontier Foundation, and Theodore Olson, Former Solicitor General for the Bush Administration (2001-2004) and Representative of the Recording Industry and Motion Pictures Association, discuss the Supreme Court case on sharing music and video files over the Internet."
Update: Via Tom Barger, a working link for "Fred and Ted's Excellent Adventure."
At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement.
MGM's answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one's own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM's side of the case who don't think that example is one bit legal.
Mr. Verrilli said the high court should look at the business models of the companies accused of contributory infringement. A study conducted by the entertainment industry showed that 90 percent of the content on Grokster and Streamcast's networks was illegal, he said.
But the justices questioned how new technologies with uncertain business models would be treated under this rule. Mr. Verrilli did not answer the question directly. Instead, he said it was "obvious" that there are significant non-infringing uses for the iPod.
Several members of the Court -- but especially Justices Antonin Scalia, Stephen G. Breyer and David H. Souter -- seemed troubled about the potential impact of a tightening of copyright law on small inventors -- "the guy in the garage," as Souter put it. One of several members of the Court who seemed concerned about potentially shutting down invention of new software if the copyright owners prevail in the Court, Breyer wondered whether a lawyer for a software designer -- for example, the inventor of the iPod -- could assure his client that they could continue to develop new products without fear of being held liable for the illegal uses to which their products might be used by some.
Update: John Borland files his report for ZDNet: "In their questions, the justices were critical of the entertainment industry's proposal, which would hold companies 'predominantly' supported by piracy liable for copyright infringement. However, they showed little sympathy for the file-swapping companies' business model.
'What you are suggesting is unlawful expropriation of property as a kind of start-up capital,' said Justice Anthony Kennedy. 'From an economic standpoint and legal standpoint, that sounds wrong.'"
Update #2: As does Ted Bridis for the AP: "During a lively argument, justices wondered aloud whether such lawsuits might have discouraged past inventions like copy machines, videocassette recorders and iPod portable music players -- all of which can be used to make illegal duplications of copyrighted documents, movies and songs."
Update #3: And David McGuire for the Washington Post [audio clip]: "The justices were very active in their questioning...they didn't actually give a hint as to which side they were favoring."
Seltzer: "The entire bench was engaged with argument from both sides. Three key points stood out:
In at least some questions, the Court seemed concerned that movement from a clear "capability of substantial noninfringing use" standard would cloud future innovation.
Similarly, some justices seemed concerned that an "active inducement" standard could chill innovation, from Xerox through the iPod.
The Court also engaged jurisdictional questions of what acts were before the Court, and how it could separate past from current conduct.
Schultz: "At the oral arguments in MGM v. Grokster before the Supreme Court today, it was hard to tell which side a majority of the justices fell on. But one thing was clear: they were asking the right questions."
Today the United States Supreme Court will hear oral arguments in the most important technology and copyright case in two decades. At stake is the future of a legal doctrine that has protected innovators of all stripes since the Court's landmark decision in Universal v. Sony 21 years ago: if your technology is "merely capable" of significant legal uses, you cannot be held responsible for the copyright violations of users.
In this case, the Court will determine whether the makers of the Morpheus, Grokster, and KaZaA software products are protected by the Betamax doctrine -- and, potentially, whether a new test is needed. Will technological innovation dodge another bullet? Or do we face a future where innovators will be forced to beg permission from Hollywood and the recording industry before creating new copying technologies?
My EFF colleagues will be calling in from the courthouse steps immediately after the hearing, and we'll be posting our impressions at EFF's Deep Links weblog; I'll also be cross-posting here @ Copyfight. Stay tuned.
Update #3: SCOTUS blog has the first report: "The Supreme Court put on public display Tuesday two conflicting reactions to the apparently widespread practice of downloading copyrighted songs and movies from the Internet: a concern that software makers may be too enthusiastically encouraging the habit, and a concern that copyright law not be made so restrictive that it stifles new surges of technology creativity."
Via Cory comes the news that a few "A-list" political bloggers are (finally) discussing the need for balance in intellectual property law and policy. Check 'em out:
Atrios @ Eschaton: "Once upon a time it seems we had a better understanding of what the purpose of IP laws were. Their primary purpose is to encourage innovation and creativity, and not to create and preserve asset titles for corporations and individuals. Now, I'm all for innovators and artists being able to profit from their works, but the ability to do so is a means to an end, not the end itself. The end itself is supposed to be a benefit to consumers in the form of more new gadgets and more and better chick lit. If the IP system stifles innovation and creativity, rather than fostering it, then it's time for a change."
Matthew Yglesias: "[The] rule that the petitioners [in Grokster] want to create will have a stifling impact on innovation in a broad sphere of activities, including software development, consumer electronics, and the provision of internet services. The public's interest in creating strong financial incentives for the creation of new works of film and music is real, but it's not so overwhelmingly real that we should sacrifice everything else on the table in an effort to minimize infringing uses."
According to this refreshingly forthright Seattle Times article, it's because Microsoft knows that the FCC is going to start regulating everything its mission touches, so it had better start playing nice:
Fights over copyrights provide an interesting example of Microsoft's current DC presence and how it switches priorities and sides. ...Only a few years ago, Microsoft opposed the flag, because such an approach attempts to tell software designers what to include and sets limits on the Internet.
But now, Microsoft cannot afford to tick off its fledgling friends from Hollywood, the movie moguls it will need to provide content as it ventures into new video technology.
And of course there are similar reasons why it's Mark Cuban and not Bill Gates who can "afford" to fight for innovation in Grokster -- despite the fact that not so long ago, Gates was the young entrepreneur on the outside looking in.
One of the things the Cartel has most successfully done in this war is control the language, reporting, and thought around P2P music sharing.
One side effect of this is that there has been an almost complete shut-out of mainstream reporting on real research in the area. Why? I believe it's because every study that has been done since Napster has shown that music sharing has no negative effects on music sales (CD or downloaded). In fact, some show a positive effect. If that message got into the public consciousness the Cartel would be much worse off. Therefore, they've done all they can to frame the debate in terms of their scares, not science. So we have the scene - surely worthy of Beckett - in which a certified class of 27,000 songwriters and music publishers will argue against Grokster, as Tony Mauro put it on law.com "casting it as a life-or-death struggle over theft of their means of livelihood."
There's just one eensy weensy problem here - NOBODY's livelihood is being stolen. It's just not happening. There were no WMD in Iraq, there was no cocaine on that boat (*), and music sharing does not cost artists money.
How do we know this? Well, we do studies. Like, for example, the just-published Japanese study by Keio Universtity Economics professor Tatsuo Tanaka, who looked at the P2P application "Winny" and its effect on Japanese music consumers. Prof. Tanaka's original study is reported on here (Japanese HTML), but fortunately for people like me there's an English translation (17 page PDF).
In addition to a lack of negative effects, the study argues, there is evidence for a positive correlation between sharing music and purchasing more new music. Not terribly surprising, if you've been paying attention over the last half dozen years and not been deafened by the drums of the other side. Sadly, just about nobody has been paying attention. We've been soundly defeated in the propaganda war. Here's hoping Tuesday goes better.
(*) The Usual Suspects reference, in case you were wondering
Geist has posted a "non-registration, hyperlinked version" of his analysis here. He continues to argue against "one-sided" proposals that have come out of Canadian parliamentary committees. Here's hoping our northern neighbors continue down a saner path.
As Ed Felten suggests, there is, not surprisingly, a lot of "generic" scene-setting press coverage of MGM v. Grokster of late, with a few pleasing exceptions scattered here and there. Luckily, we also have a handy Field Guide (unpardonable pun intended) -- a tour of the current crop of articles with the more relevant/interesting bits excerpted for our perusal.
Update: Andrew Raff of IPTABlog also has a useful tour, including a podcast program he recorded that goes step-by-step through the oral arguments before the Ninth Circuit, elucidating points of law all the way along.
Update #2: Ernie Miller provides a bit of, shall we say, critical analysis of The New York Times editorial on the Grokster showdown: "Brilliant editorial New York Times, bravo. Cheap rhetorical tricks, unsubstantiated statistics, and complete lack of an actual solution. Is there any error that wasn't made?"
Amusing piece on Grokster from The Times in the UK, arguing that technology creators shouldn't be held responsible for how people use the technology -- after all, no one argues for shutting down the presses when you roll up your newspaper and use it to swat fellow commuters on the Tube, or (heaven forbid) load it up with fish & chips, "all saturated fat, thus exposing News International to vast potential costs in some future obesity lawsuit."
Established interests have never much liked innovation. Back in 1906 the composer John Philip Sousa predicted "a marked deterioration" in musical tastes as newfangled gramophones "reduce the expression of music to a mathematical system of megaphones, wheels, cogs, disks, cylinders and all manner of revolving things." Similar battles were fought over the printing press, photocopier, mechanical piano, radio and television. Remember how home taping was going to kill music a generation ago? Music seems to have survived.
Why should the music industry be able to close such communications channels? Just because technology comes along and disrupts existing business models, should copyright owners not find clever ways to adapt, rather than suing 12-year-olds and fighting software developers in court?
If the studios do win, it will be the consumer who loses. The next generation of digital music players, internet telephony, TV recording equipment -- all will suffer from a new legalistic caution that will stifle progress. The music lobby may have more star names on its side: a Sheryl Crow and a Brian Wilson for every Terence Trent D'Arby on the software companies' side. But if the music lobby wins, you might as well swap your iPod for a Thomas Edison wax cylinder.
First, a judgement has come down in favor of Immersion and against Sony. In effect, the issue is around whether Immersion's patent on console controls that vibrate in synch with game actions was infringed by Sony's immensely popular PlayStation. The judgement was entered for about USD 90 million (including interest) and a formal injunction against selling the Playstation was suspended pending appeal. Reporting online has been extremely sparse and detail-free. My guess is that the gaming press will buzz about this for some time, but in the end it's going to be another NPT/RIM situation. Sony will pay up - the question is when and how much, and what will be left of Immersion after being ground down by Sony's battery of lawyers.
...as a "little content" guy who decided to step up and defend innovation against Big Content by funding the Grokster defense (emphasis, mine):
It doesn't matter that the RIAA has been wrong about innovations and the perceived threat to their industry, EVERY SINGLE TIME. It just matters that they can spend more then everyone else on lawyers. That's not the way it should be. So, the real reason of this blog. To let everyone know that the EFF and others came to me and asked if I would finance the legal effort against MGM. I said yes. I would provide them the money they need. So now the truth has been told. This isn't the big content companies against the technology companies. This is the big content companies, against me. Mark Cuban and my little content company. It's about our ability to use future innovations to compete vs their ability to use the courts to shut down our ability to compete. It's that simple.
Way back in the dark ages, when the Cartel decided to sue Napster into oblivion, I suggested that this was the effective equivalent of smashing a blob of mercury with a hammer. Nice noise, flashy splash but at the end you have just about exactly as much mercury as you did before. Except now it's scattered all over creation.
Continuing this winning tradition, the Cartel have hammered at KaZaa, BitTorrent, and other large P2P networks. As if smashing the networks would somehow answer consumer demand. Sigh.
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The Rule of Law section of the Agreement remains in effect, except that it no longer applies to Us. It may also, from time to time, cease to apply to Contributors above a certain level (see Schedule G, attached).
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This amendment affects the Right to Privacy section of your agreement. Under the new terms, the Right to Privacy must be applied for on an individual basis. To apply for your Right to Privacy, you must send your full credit history, a copy of your party registration and church membership, a complete set of fingerprints, a DNA sample, and two (2) passport-size photographs of your bedroom to: National Privacy Registry, Washington, DC, 20012-3006, att: Doris.
This amendment affects the Unreasonable Search and Seizure section of the Agreement. Under the new terms of this section, the right to unreasonable search and seizure shall not be abridged.
Seventy-seven page study from The 451 Group saying that <buzzword alert>grid computing</buzzword alert> is being hampered by per-processor software licensing. I'm all in favor of better software licenses that don't penalize users, grid or no. Tip... iceberg... boom.
In the aftermath of India being forced/coerced to adopt patent law that quite literally kills people as a condition for joining the World Trade Organization (WTO), US representatives at the World Intellectual Property Organization (WIPO) are moving to counter efforts by developing countries and numerous non-government organizations (NGOs) to bring public-interest considerations -- like protecting human health -- to its decision-making.
Specifically, representatives have reportedly been circulating a draft paper that attempts to reframe the problem, arguing that WIPO is already addressing development issues and proposing merely a "WIPO Partnership Program" -- an Internet-based database to bring together "donors and recipients of IP development assistance."
In sharp contrast, the Development Agenda proposed by developing countries and NGOs urges WIPO to move beyond the narrow view that any and all IP protection is beneficial, and choose instead to act strategically to spur economic growth, foster innovation, and help humanity.
Says Jamie, "For both of them we interviewed people around the country on their experiences. Some amazing stories came out of that, and the orphan films research is tragic. At the end of the orphan works report, we offer a proposal to fix the problem." Check it out.
Update (5:22 p.m.): Via Gavin Baker of Free Culture, two more submissions to the Copyright Office:
Over at The Chronicle of Higher Education, Fordham University history professor Doron Ben-Atar makes short work of the entertainment industry's and the US Solicitor General's arguments in MGM v. Grokster:
On the face of it, the case for harmony of interests between the studios and the nation is clear. P2P technology allows individuals and organizations to reproduce unlicensed copies for personal viewing and even commercial sale here and abroad. Every pirated version downloaded by an American college student or sold for a couple of dollars at New Delhi's Palika Bazaar, according to this logic, is a net loss of the retail price for the studios and also adds to America's growing trade imbalance.
But that point of view is disingenuous and shortsighted. There is no denying that commercial use of copyrighted material is both illegal and immoral. Yet estimates of the cost of piracy are misleading. They don't account for the fact that piracy fuels demand for entertainment products: 2004 was a banner year for pirates; it was even better for the movie industry, where rentals and sales of DVD and VHS movies accounted for nearly $26-billion. When Hollywood cries poverty, as the victim of pilfering teenagers and workers who live on a couple of dollars a day, it is laughable. And the studios' suit could severely curtail P2P programs' development in America as a resource combining multiple databases, allowing real-time cooperation on a vast scale in science, business, and education.
CopyNight isn't only a wholeheartedly endorsed dilution of the "Copyfight" trademark ;-), it's a fun, non-pressureful way to meet other copyfighters in person and talk about how we can work together to defend and protect copyright's original function -- spurring innovation. Via fellow copyfighter/EFF activist Ren Bucholz, who is hosting the San Francisco gathering, the following details:
* CopyNight Reminder: Mashups & Martinis, March 29
This is a reminder that there will be CopyNight parties on Tuesday, March 29 - the night of the Supreme Court arguments in MGM v. Grokster. Join us in a toast to innovation in these six lovely cities (or add your own at the bottom):
* Club De Ville
* 900 Red River (between 9th & 10th)
* 6:30 p.m. onward
* Hosted by Clay Bridges, austin(at)copynight.org
New York, NY
* Bar Nine
* 807 9th Ave (between 53rd and 54th Sts), in the
* 7:00 p.m. onward
* Hosted by David Alpert, nyc(at)copynight.org
* Mo Joe's Bar and Grill
* 166 Broadway
* 5:30 p.m. onward
* Hosted by Joshua Backer, pvd(at)copynight.org
San Francisco, CA
* 21st Amendment Brewery & Cafe
* 563 2nd St (between Bryant and Brannan)
* 7:00 p.m. onward
* Hosted by Ren Bucholz, sf(at)copynight.org
Santa Monica, CA
* The Mor
* 2941 Main Street
* 7:00 p.m. onward
* Hosted by Michael Hart, santamonica(at)copynight.org
* 1726 Connecticut Ave NW
* Metro: Dupont Circle
* 6:00-9:00 p.m.
* Hosted by Cory Smith, dc(at)copynight.org
For more information and to sign up for email updates,
check out the website.
...and I don't mean that metaphorically. I don't really have the energy for another Big Thoughts post, but this story deserves a lot more thinking than I've been able to give it. So I place it out here for your consideration.
Unless you've been hiding in a hole for the past few years, you are aware that India is the source for generic copies of life-saving anti-AIDS drugs for literally millions of people in the non-industrialized countries. This bill will put a stop to that for new drugs. If you're up on HIV/AIDS thinking, you know that the virus is very good at developing resistance to drugs and a fairly steady flow of new treatments is needed to combat this.
That's not hysteria. MSF is not some radical anti-WTO group, nor a radical anti-intellectual property organization. They're a group of doctors, on the ground in dozens of countries, treating millions of HIV/AIDS patients for whom the steep drop in prices over the past few years, as Indian-made high quality generics have become widely available, has meant a new lease on living. Raise the prices even a trivial amount (by Western standards) and you put them out of reach of hundreds of thousands of people, not to mention stalling out efforts to get the drugs to millions more who need them.
Now we face the issue - is this an appropriate use of intellectual property protections? Does the right of a corporation to make a profit for its shareholders trump the right of these people to live for a few more years with their disease kept in check? I hate questions like that.
Drug companies pull out the "funding research" card. It is true that income from patented drugs funds research. It also funds a massive advertising and lobby machine. Last I looked, US drug industry spending on advertising exceeded spending on R&D by a significant fraction. On the other hand, I do not believe that public need destroys business considerations completely. I choose to invest my money in companies that behave in what I consider socially responsible fashion, but I agree there are other ways businesses can operate.
A balance is needed. I'm not comfortable with the mental image of lavish boardrooms and skyrocketing company profits (they're consistently the most profitable industry in the US) as a shining metal beacon in a sea of dark-skinned misery, death, and suffering. Conversely, I'm not comfortable with the notion of a national government appropriating the fruits of labor (corporate or individual) because it has determined that these fruits meet a real human need.
And I hate not having an inkling of how to get progress on this issue at a pace that has even a glimmer of hope of keeping up with this global pandemic.
Looks like Brian Faler was right. The preliminary set of rules that have come out of the FEC deliberations look to be quite good. The proposal (PDF) includes language that would treat all online news outlets and bloggers as "legitimate journalists" not subject to accounting for political endorsements.
Michael Geist has the scoop on the state of copyright reform in Canada -- and thankfully, he suggests that the news is mostly good: "The devil will be in the details but this represents a major shift away from the embarrassingly one-sided Canadian Heritage Standing Committee recommendations issued last May. While that report clearly pushed the agenda forward, the government's response has certainly recognized the need for some balance."
Susan Crawford, pointing to this decision in NYT v. Gonzales [PDF] as a laudable demonstration of balance between the goals of protecting a free press and carrying out the full and fair administration of criminal justice: "The law of trade secrets is ripe for abuse. It's under-theorized and over-puffed by venture capitalists and IP lawyers. In an era of secrecy and a time of privatization of government functions, any Administration (and certainly this one) could figure out routes using trade secret law to block publication of just about anything. Our poor First Amendment. It's being trumped all over the place."
I'm unhappy with the kind of reportage we've seen on this situation. For the most part, reporters such as John Borland have positioned it as a "war" between little-guy hackers and big companies - in this case Apple. There's talk of "back doors" and such. All of it is posited in adversarial terms.
I think there are clear parallels here between what the individual vendors of DRM-encumbered digital media are doing and, for example, the fight over the broadcast flag. As in that case, what we have is one group (vendors, Hollywood) trying to exert or extend control over what another group (consumers, electronics industry) does in the way of new and innovative uses. One side has its model (terms of service) for how things ought to be done and anything outside of that model is treated as a threat to be countered. The reportage I complained about earlier only feeds into this meme.
Posit a different scenario, one that might be headlined "iTunes recognizes new revenue stream." Instead of trying to force everyone to use only their client (which is, as far as I can tell, not a revenue source in and of itself), Apple could welcome any compatible client that helped people buy music from their store. Look, for example, at the Web services interfaces that Amazon has published.
What Amazon has said is, effectively: "We don't know all the possible ways to promote our products; come up with something that works for you and we'll be happy to collect the income." This is the source for interesting hacks, too, like the AmazType page I blogged last week.
I think what we're seeing is, in part, fallout from a campaign the Cartel began last decade to control the language and thought processes around digital expressions and aintellectual property. Sharing became "piracy"; copying became "theft"; copy rights were elevated to a level equal to or even above physical property rights. We're now in a situation in which it's nearly impossible to put forth positive, cooperative, or even innovative approaches. Positions have hardened, millions of dollars have been spent, lives have been upended, laws have been passed. Even the educational system has been recruited to reprogram potential future free thinkers.
But all wars have to come to their ends, including the Copyright Wars. I feel it is incumbent on us to extend our thinking and promote - at least once in a while - the notion that there are peaceful, mutually beneficial ways through these issues. I am continually reminded of Gibson's dictum that "the street finds its own uses for things." No matter what technology or innovation we put out today, tomorrow's children will use it for things we've not thought of, in ways we haven't imagined. I think this has been true for all of human history and nothing the Cartel or Apple or any other large organization does is likely to change it much.
My guess is that PyMusique will go down as another tempest in a teapot and be forgotten in a few months. Longer term, though, we will still have to find ways to make a truce and a cease fire and eventually a peace. I don't have any grand ideas of how to do that, but I have an unshakeable conviction that it has to happen.
They threaten nonprofits that use the Internet for fundraising and advocacy. That's nearly every modern nonprofit out there.
Thankfully, there's a solution in the making. A newly minted organization called the Nonprofit Innovation Alliance (NIA) has clever plan for keeping business-method patents out of the nonprofit arena. It's rounding up all the leading technology and consulting companies that help nonprofits use the Internet, then forging an alliance in which every member agrees to cross-license any current and future business-method patents on a royalty-free basis.
Think The Sopranos, but in reverse. That's right -- these companies are ganging up to make sure that nonprofits like EFF don't have to pay a "patent tax" when we purchase the technology and services that allow us to send EFFector or run the Action Center. That means more of donors' money going to the actual work we do, not the software systems we use.
And not a moment too soon -- at least one company that services nonprofits has obtained a business-method patent and started shaking down its competitors.
Its software systems and services aren't especially inventive or original. But needless to say, that doesn't always stop the US Patent and Trademark Office from issuing a business-method patent. For an example of how bad it can get, check out this claimed "invention" described in a pending patent application:
"A method for conducting a fundraising campaign by an organization or person over a wide-area network, comprising the steps of: hosting a website including a plurality of linked web pages, the website providing information about the fundraising campaign and soliciting potential donors to make a charitable contribution to the fundraising campaign; registering on the website; contacting third parties via email messages soliciting charitable donations; and providing one or more reports, on the website, including information on the status of the fundraising campaign." (Patent application entitled: "Method and system for an efficient fundraising campaign over a wide area network" application number 764787.)
That's not a patent application. That's a baseball bat for beating back competitors who don't fork over the protection money -- er, I mean the licensing fee.
The NIA solution will only work if enough companies and nonprofits join the effort to make the nonprofit world a business-patent-free space. Check out the website for more information and consider endorsing the NIA and using software solutions from the companies that are facing down the bad guys.
The case is convoluted and involves questions of what constitutes "publication" - in this case an apparently accidental event, what can be protected as trade secrets (shades of Apple v Does maybe?), and a number of other issues.
Spaink appears to be on good grounds but a final ruling is not due until July.
As long as we're on the topic of Peter Pan... Stanford's Center for Internet and Society has issued a press release announcing the settlement of litigation between Great Ormond and CIS client J. Emily Somma over the book After the Rain: A New Adventure for Peter Pan. Details are confidential, but Ormond recognizes Somma's book as fair use and non-infringing of Ormond's US intellectual property. A one-page PDF is all that's public.
that it can be used for political speech (and porn!) ,
and the reason we're in the current mess is the Cartel's extensive anticompetitive behavior in the last decade.
Well, yes. I'd say "we told you so" but that would be both redundant and probably ignored, as the esteemed Mark Cooper, research director for the Consumer Federation of America, apparently feels that there's something wrong with us "geeks" debating this. Excuuuuuse me!
At heart I'm glad the consumer groups have finally decided to get into the Copyright wars. I doubt this will have any massive impact, though.
EFF today filed a petition for appeal [PDF] in Apple v. Does, arguing that the central issue in the case is not "the merits of Apple's trade secret claim nor even the potential liability of these non-Party reporters should Apple ever sue them (it has not). Rather, the question is only whether Apple may ride roughshod over the reporter's privilege and the reporter's shield in its eagerness to obtain evidence."
In other words, can Apple do an end-run around the California reporter's shield and the journalist's privilege under the federal First Amendment by forcing a third party (in this instance, Jason O' Grady's ISP) to divulge a reporter's confidential sources? If so, can it do so without first exhausting all other means of securing the information?
Remember, these reporters did not steal any information from Apple, bribe any Apple employees, or break any non-disclosure agreement. They are not defendants in any criminal action, and no criminal investigation is underway. Yet the trial court applied the consitutional reporter's privilege as though this were a criminal case. It even compared these journalists to "fences" in stolen goods.
EFF has prepared an FAQ to complement the official press release on the petition for appeal; we're hoping it helps clarify what's happening and why it matters for journalism.
Update (March 23): From my referrer logs, an astute appraisal of the situation: "Maybe I'm missing something here, but it does seem kinda like Apple is supposed to rip apart its own house before ripping apart those of journalists."
Joe Gratz on the Agence France Presse lawsuit against Google: "If Google is lucky (and having extremely able counsel like Google's always makes you luckier), a lot of good law could be made as Google defends its fair use rights."
On March 29, 2005, the US Supreme Court will hear arguments in two cases that together will greatly determine how government can and will regulate the Internet in the future, and the impact that the public interest will have on the development of cyberlaw over the next decade.
In MGM v. Grokster, the Court will decide whether copyright holders can veto consumer electronics and computing innovations that upset the content industries' prevailing business models, even where the technology's non-infringing uses provide substantial benefits to consumers. The question is whether consumer demand for new and better products will drive technological development, or copyright owners' demand for control will retard it.
In Brand X v. FCC, the Court will decide whether the FCC should retain the option to regulate cable modem services to promote open access to broadband lines, universal service and network neutrality, as it did in the early days of the Internet when most people connected over common-carrier telephone lines. The question is whether tomorrow's communications services will be defined by citizen choices or by the business interests of a handful of cable broadband companies.
Rik Lambers @ CoCo blog: "This is the little mascot that guides the French kids through the rights and wrongs of the internet. Admittedly, it is less scary than the Dutch Pig and psychotic grinning BSA Weasel."
Who's the leader of the Propaganda club/That's made for you and me?/ L-A-J-R-M-A-S-C-O-T-T-E!
The following appeared anonymously in Greg Aharonian's PATNEWS. Reprinted by permission; the original author "worked at the Justice Department for several years" and does not wish to be identified further. I think this is interesting, particularly in light of MGM v. Grokster:
"When the Supreme Courts wants the views of the U.S. Government, they ask the Solicitor General (SG) for those views since the Justice Department has responsibility for the government's legal positions in court and the Solicitor General is the government's representative before the Supreme Court. The SG's response will be the ultimate response of the United States Government.
"The Criminal Division of the Justice Department is relatively new to the IP game, and they are not really experts at it yet. Their focus is VERY narrow. They really know nothing about patent prosecution or anything going on at the PTO. Not that they really represent that they do, but their focus is much more into catching copyright pirates on behalf of the movie and music industry. Their approach was much more akin to a prosecutor trying to make a name for him or her self, which maybe is to be expected since many of them have criminal law backgrounds and they joined to criminal division to catch crooks.
"The IP attorneys in the Civil Division and to some extent the Antitrust division have a more rounded IP background. I would hope the Solicitor General would look to them for advice more than the criminal division.
In formulating the response, the SG will seek the advice of the IP litigating section in the Civil Division, and the PTO's position. They will probably also ask the IP section in the Antitrust division at Justice and the FTC to comment since they have been involved in patent matters lately. Beyond that, they could solicit the opinion of just about any government agency they think is relevant. After they get all of these potentially conflicting opinions, they will attempt to distill them into a single position of the 'United States'."
McCaughrean is no novice though she's not well-known in the US - she has over 130 publication credits (primarily children's books and plays) and is the only writer to be given the Whitbread Children's Book Award three times.
I'm somewhat conflicted about this. On the one hand I'd be glad to see a copyright owner using that right to keep beloved material alive and vital. On the other hand, a one-shot contest seemingly sparked only by an imminent expiration of a long-held mark hardly seems to be the kind of creative flourishing that I'd like copyright to promote. Peter Pan is one of those few works that has remained in the public eye over a long period, and the monies collected do seem to go to a good cause. But somehow it feels to me like there's a great deal of potential here that isn't being made available to a wider range of creative talent.
From the Doc Searls of Blawgs comes a heads-up on a webcast discussion this Thursday asking whether, in hearing MGM v. Grokster, the Supreme Court can "advance innovation" while protecting property rights. From the way the question is phrased, it sounds like this will be more an exploration of how, rather than whether, Betamax should/will be tweaked.
Don't do it. Don't let one industry (content, law enforcement, or telecom) control another (high-tech innovation) without a strong social consensus to do so.
In the same spirit, the Consumer Electronics Association (CEA) has just published a Declaration of Technology Independence -- a document "codifying" the principles in the Betamax ruling and warning the public against the content industry's hostile takeover of copyright's purpose. Writes CEA:
The debate is no longer just about piracy and profits. The unbalanced importance given to protecting intellectual property (IP) is stifling creativity and steering America toward a cold war on new technologies. For America to compete globally, the issues must be redefined, including striking the right balance between protecting IP and encouraging creativity and innovation.
We need to advance the fight against the unbalanced importance given to protection of IP and the increase in litigation against innovators. Public policies should encourage innovation and allow people to make full use of the opportunities provided by new technologies. IP issues need to be redirected to focus on encouraging and advancing creativity rather than on protecting existing business models.
As Alan notes, there's a new program/system called "Credence" that "cleans" P2P -- that is, lets people band together to identify decoy or "spoofed" files. Handy for the end-user; frustrating for the spoofer, who may be an RIAA or MPAA copy cop. Here, the good Professor Feltenkicks the tires and concludes that it's fairly robust: "It's looks like this method will work, if it can be implemented efficiently in a real network. The real question, I think, is whether it will scale up to enormous P2P networks containing huge numbers of files."
Together, Leonhard and Kusek describe a future digital environment for selling music "like water" rather than by unit, arguing for a Netflix-like system where you "rent" access to music and musicians are paid a share of the money collected based on what you listen to. Explains Leonhard:
The battle for distribution and delivery of music is just about over, because pretty soon the digital availability of music anytime anywhere will become a default (in away, it already is!). EXPOSURE and DISCOVERY will then emerge as the biggest must-haves in the future -- just getting the right user to pay attention to you. Music will "feel like free" and will flow like water -- everybody gets music, everybody pays but it will still "feel like free."
Well worth the read -- and a nice opportunity to check out the previous interviews in the series, which together make for a broad-yet-never-shallow survey of current perspectives on the so-called digital transition:
Consider the following scenario. A drug company's research determines that one of its drugs already on the market is dangerous. The company decides the research results are proprietary trade secrets and bottles them up.
It's clear that the public would be served by a conscientious insider leaking the research data to the media.
But after a ruling that could limit the public's access to vital information, insiders may now be reluctant to leak that kind of information. That's because Santa Clara County Superior Court Judge James Kleinberg said a reporter's promise of confidentiality may not be worth anything when the leak involves trade secrets.
You might also want to consider the automobile manufacturer that wants to keep secret the fact that its airbags malfunction in such a way as to threaten young children strapped in car seats. Or the e-voting machine vendor seeking to silence rumblings about the security of its machines, potentially leaving your vote vulnerable to hackers. (Sound familiar?)
This is a core function of journalist's shield laws that protect the confidentiality of sources. These laws allow the whistle-blower to blow the whistle. They protect us from companies that might otherwise harm us.
You might argue that no one's life is at stake in Apple v. Does and that stripping these journalists of their ability to keep their sources private is therefore a small matter. But Judge Kleinberg's ruling [PDF] is broad-brush. If it is allowed to stand, it can and will be used liberally by deep-pocketed companies to keep business journalists of all stripes from reporting on whatever they decide to call a "trade secret."
The Mercury News editorial concludes with the following warning:
What's more, Kleinberg seems to indicate that he's in a position to decide what is newsworthy. Saying that "an interested public is not the same as the public interest,'' he suggests that information about upcoming Apple products is little more than gossip.
That's a dangerous precedent. Would a leak last month about Hewlett-Packard's imminent firing of Carly Fiorina be news or mere gossip? Could a wide swath of information about private businesses become off-limits to reporters?
My initial reaction to EFF's hypo regarding UPS suing Brown's Record Store may be off the mark. UPS's rights are in the color brown as applied to clothes and to vehicles, but its word marks are THE AMAZING COLOR BROWN and WHAT CAN BROWN DO FOR YOU (I based this on a review of UPS' trademark list on its website), neither of which would give much traction here. I'm therefore a little skeptical that UPS could or would go after BROWN'S RECORD STORE (or DR BROWN'S CEL RAY TONIC).
But UPS can plausibly say that a brown delivery truck signifies UPS as source.
So what should be the result if:
1. FedEx painted its trucks 'UPS Brown' but left FEDEX on them.
Popular press in the US, when it covered this case, tended to focus on whether people would get to keep their Blackberries, after a VA court issued an injunction against RIM selling the devices following a loss at trial. However, as Brenda Sandburg points out in a law.com column one of the key issues in the case was not just the patent claims but whether and how they applied outside the US.
In this case, the patent was US-based but one component of the BlackBerry system was not. In theory, US patent law says that the entire infringing process has to happen within the US. However, nobody was happy with that interpretation in this case, including the Canadian government. In the end, the court held that the BlackBerry was covered by US law since "the beneficial use and function of the whole operable system assembly is in the United States."
The reach of this decision is going to have to be tested - does it extend across the Atlantic? How will it interact with the new EU patent directives that we seem bound to get? How would a decision like this be read in the context of the Web? Or of a trans-national P2P network? I very much doubt we've heard the last of this.
The US CAFC held against EBay this week, saying it did indeed violate a patent held by MercExchange. This cleared the way for a possible permanent injunction against EBay using a fixed-price feature covered by the patent's claims.
However, the story is far from over. A second MercExchange patent was held invalid by the CAFC and the patent judged infringed is itself up for review by the USPTO. EBay claims to have engineered around the disputed claims so by the time it's all said and done little or nothing may be left of MercExchange's case.
The conference that got everybody talking about the "future of music on the Net" five years ago is back for another go -- this time to talk more broadly about the nature of creativity itself. Bravo, Berkman!
Seems we can't be rid of Cartel sock-puppet Hatch quite so easily. As I wrote a bit ago, Republican rules forced Hatch to relinquish the chair's seat on the Senate Judiciary Committee. However, there was widespread speculation - now proved right - that new Chair Specter would create a special subcommittee on intellectual property. Specter needed to do something to rescue himself from his remarks on judicial appointments and he really doesn't care about intellectual property. Hatch does. Or rather, Hatch cares about protecting the monetary interests of the Cartel. His actual concern for creative individuals is doubtful at best.
As a copyfighting lawyer, I loved the spirit of tinkering in the air. The whole event was brimming with the spirit of exploration, interoperation, and user-driven innovation. The more people who catch that excitement, the more people we'll have fighting laws that restrict our ability to open boxes and re-use the contents.
Edward Felten updates Godwin's Law: "One of the most famous observations about online discussions is Godwin's Law: 'As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.' When it comes to copyright policy, a related law seems to hold: 'As a copyright policy discussion grows longer, the probability of pornography being invoked approaches one.'" (For a related discussion, see Will Someone Please Think of the Pornographers?)
The Trademark Dilution Revision Act (TDRA, HR 683) is a big company's dream. If it passes, the lawyers policing a trademark could sue businesses and individuals for using words, images, or even colors that look vaguely like a famous brand - without even having to prove that the company is being harmed. In other words, TDRA would make it possible for UPS to sue Brown's Record Store, even though nobody in their right mind would get the two confused. This bill would chill speech and hand ownership of common words to big companies. Fight the TDRA today!
Some technologists warn that if the court decides in favor of the music and recording industries after hearing arguments in the MGM v. Grokster case on March 29, the ruling could also stifle a proliferating set of new Internet-based services that have nothing to do with the sharing of copyrighted music and movies at issue in the court case.
This case isn't only about filesharing -- a point EFF hopes to underscore by profiling a new Betamax-protected copying technology every weekday until the Grokster hearing.
The San Francisco Chronicle runs this fascinating article about Grammy award-winning singer/songwriter Fiona Apple's mythical next record, completed two years ago but shelved by her label. Here's a substantial noninfringing use of P2P networks if I've ever seen one:
"Extraordinary Machine" is an album that Apple finished over two years ago, but which was quickly shelved by the sad corporate drones over at Sony because they didn't "hear a single" and because it doesn't sound exactly like Norah Jones and because they're, well, corporate drones. They dictate cultural tastes based on relatively narrow and often deeply ignorant criteria related to marketing and money and fear of the new and the different. This is what they do.
In other words, it was shelved because it's different, unique, a little eccentric, all bells and oompah horns and strings and oddly lovely circuslike arrangements, and you as the co-opted overmarketed oversold listening audience can't really handle anything like that, anything challenging or interesting or distinctive or deeply cool or lacking in prepackaged backbeats that sound just like Kelly Clarkson or maybe "American Idiot," even if it comes from an stupendously talented world-class Grammy-winning artist. Right? Isn't that you? Doesn't matter. This is what they believe.
But now, a hot new twist. The rest of "Extraordinary Machine" has, somehow, been leaked onto this fair Internet. All of it. Every song, some at first sounding not all that complete and some reportedly with only tentative titles, but, then again, a DJ at a radio station up in Seattle (the End 107.7) somehow managed to get his hands on the whole album and has apparently been playing almost every track and it's all much more finished and incredible than anyone thought.
And fans have been whipping the tracks into high-quality MP3s and splaying them all over the Net, and Rolling Stone and MTV and other media have picked up on the odd story, noting how fans are calling into the station like mad and most everyone loves the songs and protest Web sites like freefiona.com (alongside dedicated fan sites like fionaapple.org) have popped up to try and get some action and yet Sony refuses to actually release the album and the corporate drones remain mum and everyone's wondering just what the hell's going on.
So, in case you missed it: Fiona Apple's fans are downloading her music for free, then demanding that Sony release the album so they can pay for it. At least in the case of Fiona Apple, P2P isn't hurting her CD sales. In fact, P2P appears to be Fiona's only chance of actually getting her CD on store shelves at all.
[This post has been updated w/the excerpt from the article itself; it's lengthy, but too good not to include.]
I rarely agree with the intentionally sloppy Andrew Orlowski, but he's right about what's happening to Apple's iTunes. Any "upgrade" to the service likely means paying more (and more) for less (and less).
Jon Johansen (yes, that Jon Johansen) is doing something about it. He's been working on what he calls PyMusique, the "fair" interface to the iTunes Music Store. Explains Jon (via email):
PyMusique is an interface to the iTunes Music Store that lets you preview songs, sign up for an account and buy songs. It is somewhat interesting from a DMCA/EUCD perspective. The iTunes Music Store actually sells songs without DRM. While iTunes adds DRM to your purchases, PyMusique does not. Another difference is that signing up for an account using PyMusique does not require you to sign/click away any of your rights.
But here's the question: How "interesting" is it? Does it stay in the free and clear, or does it brush up against the DMCA or EUCD? This is a tough one.
To learn more, a tech-savvy friend of mine is examining how PyMusique works -- you might want to do the same before this tool becomes yet another Endangered Gizmo.
Apparently Princeton Professor Harry Frankfurt does not understand his own job.
As a professor and author of the new book Bullshit, he has taken it upon himself to be a copyright cop as well. He sent a personal cease-and-desist letter to Paul Schmelzer, author of the brilliant and essential blog, Eyeteeth: A journal of incisive ideas.
Why? Because Paul quoted [a small portion] of his book. ...Here is text from his (copyrighted, of course) cease-and-desist letter:
Dear Mr. Smelzer:
It has come to my attention that you have placed a copy of my essay "On Bullshit" on your website. I appreciate the compliment. As you may know, however, the essay has recently been published as a book by the Princeton University Press. The management of the Press and I are concerned that your use of my essay may interfere with sales of the book. In any case, it constitutes a clear infringement of my copyright. I must ask you, therefore, to remove the essay from your website as soon as possible.
Now, I seriously doubt that Princeton University Press objects to a blogger quoting from one of their books for commentary or criticism. I would shudder to think that a major academic publishing house would be that ignorant of or hostile toward fair use.
If you have a blog out there, copy and paste the exact text that got Paul in trouble. Post in on your blog. See what happens.
Better yet, someone at Princeton should scour Professor Frankfurt's body of work for his use of quotes from copyrighted material. Could he really have made a career without quoting?
Update (March 17): Confirmation @ BoingBoing that Professor Frankfurt had no intention of putting fair use under the crosshairs: "I have no objection to the excerpt from my essay that is presented [at Eyeteeth]. I apologize for any suggestion that you might have done something improper. Indeed, I am grateful to you for the honor that your attention to my work does me."
...comes out as a fan of Creative Commons [MSNBC], albeit for strategic purposes: "I think it's helpful to educate consumers that there is a place like Creative Commons where one can access intellectual property that has been freely made available to the general public without compensation and that that should be distinguished from sites that are permitting access to infringing material."
Ernie Miller on Apple v. Does and "what the First Amendment wants to protect":
Much of this debate has revolved around whether bloggers are journalists or to whom press shield laws should apply, should it be to people who work for established mainstream media, should we measure whether the process of journalism was followed, yadda, yadda, yadda. I find that much of this debate misses the point.
Why do we want a press shield in the first place? The reason derives from the First Amendment. We want to encourage people to gather information and publicly disseminate it without unduly impacting legitimate law enforcement interests. So, how do we limit the press shield appropriately? ...The four possible means are: favoring one kind of speaker, one kind of content, one medium of communication, or one type of process. ...
In the end, it seems to me, the only process worth protecting is gathering information and public distribution or the intent to publicly distribute said information. That is what the First Amendment wants to protect. Sure, we would prefer that information be verified and people have track records, but the First Amendment doesn't and shouldn't care. It is a relatively simple and brightline test. It would certainly protect mainstream journalists, as well as bloggers.
Good news from the DC Circuit today, which issued an opinion asking for further facts about petitioners' right to be in front of them complaining about FCC's jurisdiction in the broadcast flag matter. Everyone (including, apparently, the FCC) assumed quite reasonably that the petitioners had every right to be there -- in other words, everyone thought petitioners had "standing."
But the DC Circuit wasn't so sure about it. Under the applicable legal standard, you have to show a concrete, particularized, actual/imminent harm from an administrative rule in order to complain about it. The petitioners in this case include the American Libraries Association, Public Knowledge, and EFF. (Things would have been simpler if a single consumer electronics manufacturer had wanted to face the ire of the content community and join the lawsuit.)
At oral argument, petitioners' concrete etc. harm was sharply questioned -- how was one consumer's harm any different from that of the rest of the populace?
The court has given petitioners two weeks to provide statements of facts showing special harms caused by the broadcast flag rule -- and has provided some helpful hints: show us whether any of your members are engaged in storing TV broadcasts and sending them to distant locations; show us whether you'll be hindered in lawful copying and distribution; show us whether your member-educators (if you have any) will be hindered in distance education efforts.
I think this court wants to find standing. Once this legal threshold is in place, the court can walk right in and declare that the FCC had no jurisdiction to adopt the flag rule. And we'll be back at Congress.
The implications of this case are much broader than they may appear on the surface. FCC is asserting very broad jurisdiction over anything associated with the overall circuit of messages sent and received via all interstate radio and wire communication. The Madison River flap of two weeks ago is part of this overall picture. I don't think the FCC's powers extend beyond what is specifically given them by Congress -- and Congress hasn't given the FCC the internet, PCs, or consumer electronics devices.
When this hot potato is back in Congress's lap, it should act to lead the world in self restraint. Don't do it. Don't let one industry (content, law enforcement, or telecom) control another (high-tech innovation) without a strong social consensus to do so.
Wendy Seltzer: "The Madrid Summit was outside my usual realm of intellectual property law, but the change served to remind me that while the copyfight is but a small part of the picture, the principles we're fighting for are more than music. ....At least a part of [the task of promoting democracy] is communication -- communicating with other democratic citizens and with other people seeking democracy. ...I don't think it's stretching too far to say that protecting against abuses of privacy, copyright or trademark online strengthens these tools of democracy."
Derek Slater: "Sony's involvement in DRM and interoperability issues generally makes me wanna retch - this just makes me wanna laugh. Apparently, Sony was not content with making songs sold by its Connect music store unplayable on basically any other company's music device. Sony now wants to make Sony-sold songs incompatible with Sony-sold devices."
Last month, James Boyle penned a Financial Times column "radically" arguing for "evidence-based information policy." Specifically, Boyle proposed that European policymakers ought to rethink automatic intellectual property protection for materials produced by government bodies. Rather than blindly assume that any and all IP protection is beneficial, argued Boyle, policymakers should assess specific protections according to whether or not they actually create economic and social benefits.
This week Michael Geist makes a similar plea, arguing in his lastest Toronto Star column for an end to what's called "Crown copyright" in Canada -- a regime under which the public is obliged to ask permission to use government information. In the US, the information is "free" in the sense that the federal government cannot hold copyright in it. No permission is necessary -- and in many cases, it's made available at the cost of reproduction. As Boyle pointed out, this has resulted in considerable economic and social benefits. For example, weather data is available at cost, yet a "thriving private weather industry has sprung up which takes the publicly funded data as its raw material and then adds value to it." On the social benefit end, the fact that US weather data is "free" means it's available for scientists seeking to research weather patterns to warn of disasters like monsoons and tsunamis.
Geist adds two more thought-provoking examples, with a twist -- he underscores the effect Canada's Crown copyright permission regime has on what Terry Fisher would call "semiotic democracy":
By comparison, a Canadian publisher seeking to release the forthcoming Gomery report as a commercial title would need permission from the government to do so. ...
The difference between the Canadian and the U.S. approach is just as pronounced in the documentary film arena. Consider, for example, a Canadian creating a film about a controversial political issue such as same sex marriage or gun control. The filmmaker might want to include clips from politicians speaking to the issue in the House of Commons.
After obtaining the desired video from the House of Commons, the filmmaker would be presented with a series of legal terms and conditions limiting its use to school-based private study, research, criticism, or review as well as news reporting on television and radio outlets that are licensed by the CRTC. Everything else, including any commercial use of the video, would require the prior written approval from the Speaker of the House.
Contrast this situation with one found in the U.S. Last year's controversial Michael Moore documentary Fahrenheit 9/11 featured a riveting scene in which a steady procession of members of the U.S. Congress rose to challenge the outcome of the 2000 U.S. Presidential election -- only to have then Vice-President Al Gore reject each in turn. While Moore faced challenges obtaining the necessary rights for some of the works that he included in his film, given the state of U.S. law, this segment was not one of them.
Geist closes the column by arguing that Canadians should not have to engage in Eyes on the Screen-style civil disobedience to gain access to government information without permission -- it should be the law. If you're a Canadian citizen and you agree, consider supporting the end of Crown copyright along with other important reforms aimed at realizing the benefits of protecting the public's part in copyright.
There have been a number of reports either suggesting or stating outright that NCSoft had a big victory in the recent ruling in Marvel v. NCSoft -- causing not a little confusion in the blogosphere, even here among the contributors at Copyfight. Below, Fred von Lohmann helpfully clarifies the situation, concluding that the "victory" was more like "a modest result in a preliminary skirmish." Meanwhile, John Turitzin, Executive Vice President and General Counsel for Marvel, offers his perspective over @ PC Games, arguing (unsurprisingly) that Marvel's case remains strong:
This is primarily a case for copyright infringement -- Marvel had three different causes of action alleging copyright infringement and all three were sustained by the Court. Marvel also had several different kinds of claims for trademark infringement and the judge decided that one of them was the right theory and another two were not. There are some non-trademark and -copyright claims in the case and one of those was upheld and a much more technical claim for a declaratory judgment was dismissed as not necessary.
The upshot: While it's true that more than half of the claims were dismissed, more than enough remain to cause trouble for NCSoft.
For background on what's at stake in the case, check out Fred's Law.com editorial, Et Tu, Marvel?
Although some charges remain, Judge Klausner gave NCSoft significant latitude. For example, he ruled that Marvel could not sue over certain alleged infringing works because the works were created by Marvel itself rather than players. In essence, Marvel was trying to prove that CoH's character creator system allowed players to make copies of trademarked superhero characters. However, since Marvel couldn't produce evidence of players actually doing this, the judge found no infringement and thus no basis for proceeding on those claims.
In addition, he rejected Marvel's call for a declaratory judgement that NCSoft are not an online service provider, as defined in the DMCA. If the game company can successfully show that it is such a provider then it will enjoy wide shielding in liability from potentially infringing acts by its users (players). The judge cited Betamax in noting that CoH has substantial non-infringing uses.
There are some interesting passages in the judge's decision, which may be key should this complaint ever go to trial. For example, Marvel has had to admit that it has trademark only on the phrase "Captain America" and not on the visual image we tend to associate with that phrase. The judge has declined to construe this trademark broadly, which I think means that Marvel will have to show that a CoH character could be named "Captain America" and not that someone copied the visual depiction. Even if it can show this, the judge has already pointed out that the players are not using the name in connection with any commercial purpose. Thus, Marvel will have a hard time making a contributory infringement claim stick.
All online games have naming policies that players agree to adhere to. Generally these ban the use of "offensive" language, including epithets, racial or ethnic slurs, and often reference to popular individuals or current real-world events. All games include self-reporting mechanisms whereby players can bring naming violations to the attention of game masters (GMs) who are usually charged with enforcement of the policies. My bet is that NCSoft will simply point out that they have a policy, they enforce it, and poof away go Marvel's claims.
If, however, claims against the heart of the character creation engine are allowed to proceed that could be much more troubling. From a software perspective it's not at all clear how one could employ a generic engine, which is one of the major attractions of CoH, and yet still screen out a priori trademark-violating images.
Kazaa execs have voluntarily agreed to an asset freeze, reports Kristyn Maslog-Levis. I continue to believe this is anticipatory action by the entity variously known as, which believes it will lose the first round of this case. The voluntary freeze seems to be a way to avoid filing an affidavit of assets as the Cartel has demanded.
AOL raised a few eyebrows recently with some quiet changes to its Terms of Service. Although it has attempted to 'clarify' its position that the ToS don't apply to AIM, the fundamental problem still remains - the content belongs to AOL, not to you. You have no copyrights to your fiction, no trademarks in your online business ideas, no patentable notions in your invention drawings, if you put any of it onto AOL's net. AOL owns it all and can "reproduce, display, perform, distribute, adapt and promote" it at will.
My intuition is that the other big online services have ToS that are equally privacy- and IP-hostile but today is AOL's turn under the kleiglight.
vnunet is reporting that Microsoft got off with the paltry sum of USD 60 million. That's peanuts - way less than they could have been penalized for stealing the patents, never mind the deliberate destruction of evidence charges. Burst's announced plans for the settlement contain no mention of funding new research, which makes me think the company will now sink back into complete obscurity. Rather a sad end.
One of the gathering storms over Internet speech has broken. On Friday a Santa Clara County Court judge ruled [PDF] that in Apple v. Does, Apple Computer's trade secret claims trump both California's reporter's shield laws and the reporter's privilege under the First Amendment. Specifically, the judge ruled that a journalist's Internet service provider (ISP) can be compelled to reveal the identities of the reporter's confidential sources and other unpublished information when trade secret is claimed. And it's not only "bloggers," or online journalists, who are affected by this ruling. The judge was very clear that this would apply to any journalist's private email records.
The opinion [PDF] is an interesting read in terms of rhetorical structure. The judge defines the law surrounding free speech as "rife with complexities and restrictions" and the law surrounding the "right to protect intellectual property" in California civil and criminal law as "undisputed." From there it's only a hop, skip, and a jump to calling the reporters "fences" in stolen goods. It's not hard to imagine how badly the Diebold case might have turned out with a slightly different set of facts and a judge with a similar take on our vague, messy, ragged, complexity-ridden speech-protection laws vs. clean, pure, solid, "undisputed" property-protection rights.
I pointed to it earlier, but Ernie Miller and Susan Crawford have an exchange that's well worth the read for exploring the question of how we identify speech that merits protection under the First Amendment and reporter's shield laws. Professor Crawford argues for distinguishing and protecting speech that's important to the democratic process; Miller, meanwhile, argues that the First Amendment ought to protect a democratic culture, which "incorporates a wider view of what is protected, such as popular culture and non-political speech."
Before I sign off, let me explain what that little "Blogshine Sunday" icon is doing at the top of this post. Not long ago, I blogged about the OPEN Government Act [PDF], newly proposed legislation that would help clarify that online journalists are entitled to the same rights as traditional print journalists. Specifically, it would provide access to Freedom of Information Act (FOIA) fee reduction/waivers for people regardless of institutional association.
Texas Senator John Cornyn is a co-sponsor; here's what he had to say when it was introduced (emphasis, mine):
The news media, of course, is the main way that people get information about government. The media pushes government entities and elected officials, beaurocrats, and agencies to release information the people have a right to know, occasionally exposing waste, fraud, and abuse.... But we've also seen in recent years the expansion of other outlets for sharing information outside the mainstream media, to online communities, discussion groups, and blogs.
I believe all these outlets are -- can and do -- contribute to the health of our political democracy. But let me make this clear, Mr. President, this is not just a bill for the media, lest anybody be confused. This is a bill that will benefit every man, woman, and child in the United States who cares about the federal government, cares about how the federal government operates, and ultimately cares about the success of this great democracy.
That's what important about the debate over online speech: the battle to ensure that we have a truly healthy, functioning democracy. As I wrote before, I can't imagine that we've ever needed this kind of legislation more than we do right now. If you agree, join me by grabbing a button at Blogshine Sunday and writing a few words about it.
Post script: As I was writing this post, Aaron Swartz published his contribution to the cause: "Blogshine Sunday: US Greenlights, Funds Genocide." Highly recommended.
Via Cyberia-L, a law student recounts a lecture by (the very hot) Ninth Circuit Judge Alex Kozinski asking what's so fair about fair use and suggesting an alternative: "[Once] people put their creations into the public domain and make money from them, then they are subject to be built upon by anyone who comes along. [Kozinksi] thinks that others may often be able to exploit the creator's work better than the creator, who is too close to the creation to necessarily make the best use of it." Hmm...you think?
The AP is reporting that Burst and Microsoft have reached a settlement in the former's patent infringement suit over streaming media intellectual property. This isn't unexpected - MSFT has forked out over US$3 billion in the past couple of years to make legal troubles go away. Today's court hearing was cancelled. Dollars to dimes, MSFT gave in rather than have its email-destroying ways aired in public court.
Via Frank Field @ Furdlog, this news from Audionautes.net: "On Thursday, the French Court of Appeal of Montpellier released a 22-year-old Internet user free of charges after he was sued for copying nearly 500 movies on Internet, burning them on CDs and sharing them with friends. The Court based its decision on the article L-122-5 of the French Intellectual Property Code stating that 'authors can't forbid copies or reproductions that are only intented for the private use of the copyist.'"
This does not mean that the Court has judged that movie downloading is now legal in France on a general basis. Though I have not (yet) seen the judgment, it (probably) gives the indication that private use may be a defense against a claim of copyright infringement for downloading. While this might be called a recognition of the private copying clause in the digital environment, it is not clear if this will hold up. There are currently about 50 comparable criminal cases pending, and in the past users have been sentenced for these acts.
As Corynotes over @ BoingBoing, Brazilian copyright scholar Pedro de Paranaguá Moniz has drafted a public letter urging broad reform in the World Intellectual Property Organization (WIPO) -- including putting an end to the multiple procedural blockades the organization has erected to stop public-interest organizations and developing countries from fully participating in WIPO decisionmaking. At stake in the struggle is the future direction of global intellectual property law and policy and everything/everyone it impacts.
The letter invites you to sign on so you can have your signature on the letter when it's presented to WIPO. If you support transparency, participation, balance, and access in the WIPO process, I encourage you to read the letter and sign on now.
To help gear up for the MGM v. Grokster oral argument happening on March 29 in D.C., EFF is throwing a "send off" party for the legal team involved in the case, along with many of our friends who filed in support of our arguments or helped out in other ways. It's a public party and a time to celebrate, so if you'll be in the SF area on March 24th, please come and celebrate with us.
Charlie Angus, a Canadian Member of Parliament and musician, has broken ranks from a parliamentary committee that recommended reforms to Canada's copyright legislation. Angus expressed concern over proposals that could be detrimental to the Internet, noting that "placing handcuffs on students will not resolve the inability of Canadian artists to earn a decent living."
CoCo blog: "Yesterday the French security researcher Guillame Tena, a.k.a. Guillermito, has been fined a suspended fine of 5000 euros by a French court for publishing a vulnerability in the Viguard anti-virus software of the company Tegam. ...This ruling can cripple security research in France, making it illegal to publish security vulnerabilities or the proof thereof by reverse engineering."
For more on how anti-circumvention laws threaten security research, check out this letter [PDF] by a group of Canadian researchers horrified at the prospect of Canada adopting DMCA-like legislation (via Cory @ BoingBoing).
Says Gwen, "This looks like a charge under the 1991 Computer Directive Art 7 regime -- the EU TPM (technological protection measure) regime for software -- yet the Australian article states that he was convicted under the French provision implementing Art 6 of the EUCD -- which doesn't apply to software."
Update #2: Ren Bucholz @ miniLinks: "When all security research is outlawed, only outlaws will conduct security research."
Frank Field has details on the felony conviction of an 18-year-old kid under Arizona's Internet piracy law counterfeiting law.
Update: Ernie Miller on same: "If you have ripped songs from CDs you own to MP3, you have made 'unauthorized reproductions.' If you make fair use of a copyrighted work, you have made 'unauthorized reproductions.' And, if you have 1,000 copies of your fair use, you are guilty of class 5 felony. Joy.
There is no defense. You are guilty in Arizona for exercising fair use rights under federal law. This would seem to have just a little bit of conflict with the First Amendement. "
Word out of Munich is that a German judge has sided with the Cartel in blocking heise.de, a popular German-language news site from linking to a site discussed in one of heise's stories. As you might guess, the story was on the ease and popularity of distributing content the Cartel would rather lock up. There was, apparently, a link to a site that was, allegedly, involved in such distribution.
If someone who is fluent could post an English version of the story that'd be great. Babelfish produces such gems as "Who passes the readers on on its InterNet side by a in such a way specified left to homepage the company with illegal software offers, can be sued for aid." Erm, yeah.
Ed Felten: "A bill in the California state senate (SB 96), previously dubbed the 'Cal-Induce Act,' has now morphed via amendment into a requirement that copyright and porn filters be included in many network software programs. ...Note...the clever construction of the P2P definition, which requires only that the primary purpose be to connect the user to a network where some other people are offering files to share. It does not seem to require that the primary purpose of the network be to share files, or that the primary purpose of the software be to share files, but only that the software connects the user to a network where some people are sharing files."
Ronald Coleman of Likelihood of Confusion, responding below to Jack Balkin's argument that courts should determine whether a blogger is a journalist by examining what he or she actually does: "Yeah but. Does that mean that when an established media outlet ('MSM') runs a story that demonstrates a *failure* to do these things in connection with news reporting, that that publication or program will lose its presumptive entitlement to 'journalist' status? In other words, does bunking down with the Mujaheeden innoculate you for life from shoddy journalistic practices?"
Or, in another clever variation of the theme, you're told to meet in separate groups somewhere far away, where it's too expensive for those who support your position to join you?
Yesterday I provided the fleetest of updates on the first scenario. Cory did a better job of it over at BoingBoing, capturing in a few typically vivid sentences where we are in the struggle to introduce public-interest considerations to WIPO decisionmaking:
When I first got involved [in WIPO], I wasn't sure that we could make a different against this monolithic, enormous institution, but these days, I'm less worried: WIPO has been fighting the participation of public interest groups with the kinds of dirty tricks that indicate that they're running scared, which means that we're doing something right.
Regional consultations are generally held in far-flung corners of the world, unreachable by civil society NGOs [non-government organizations] on a low budget and less likely to covered by the press. There are generally no formal requirements to invite any single country, and some countries have argued that the Casablanca meeting excluded countries that expressed vocal opposition to the wealthy nations' proposals.
Shades of the struggle over the EU software patents directive? But of course. It's an old bag of tricks, but if they keep working, no one's going to stop using them.
As I've written before, it's very important that we shine as bright a light as possible on what's happening here.
It's tough to write about WIPO; you spend half your time unraveling acronyms, the other sending off flares to convey the urgency of the situation. But your voice here is very important. Most "big media" outlets aren't covering this story, and that's a huge advantage for the powers-that-be. If you're reading this post, please take a few minutes to write about how important it is that WIPO abandons these tricks and begins the real discussion about pursuing IP law and policy that serves the world majority rather than only a tiny minority of powerful entertainment companies.
I can't tell if this "plan" is an attempt to split the Cartel (won't work - the Cartel had no problems suing itself when BMG bought into Napster), a ploy to show that the Cartel won't play ball no matter what (no kidding - that's why I call it the Content Cartel), or a desperation move by a side that feels it's losing in court and wants a Plan B. My guess is Plan B looks a lot like Bugs Music.
Declan McCullagh's column on Apple vs. the bloggers comes down strongly on the side of bloggers-as-journalists, even invoking the legendary Woodward & Bernstein names. He points out that cases may turn on issues as small-scale as the wording of state laws, and that the "press cartel" have traditionally been mean-spirited and withheld their support from emerging forms of journalism.
He also notes the relationship to the FEC flap and lends support to the view that there may well be regulation coming to this area (Grimmelman et al notwithstanding)
Michael Geist provides his take on the Vonage VoIP-blocking, content monitoring, and related "packet preferencing" trends. He doesn't like what he sees, but provides no alternatives. (Link is to the Toronto Star, use firstname.lastname@example.org/privacy login if need be.)
It looks like the European Council today "fixed" the "problem" with the multiple rebooting of discussion regarding EU software patents by breaking the rules for discussion. It just passed the EU software patent directive as an A-Item despite the requests for a B-Item from Denmark, Poland, Portugal and others.
According to ZDNet, Florian Mueller of NoSoftwarePatents.com says the Council claims the directive is being adopted to "ensure that the Council adheres to its processes and to avoid creating problems for other directives."
"We are adopting the position for institutional reasons so as not to create a precedent which might have a consequence of creating future delays in other processes," the minister said, according to Mueller.
Ah ha!...uhm, no, actually, I don't get it.
The Foundation for a Free Information Infrastructure has more detail:
Cyprus submitted a written declaration at the start of the Council session
Poland, Denmark, Portugal and others (not specified) asked for a B item (discussion point)
The Luxembourg presidency claimed this was not possible due to procedural reasons, and that this would have undermined the whole process -> it would stay on the list of A-items
Luxembourg then gave a long statement regarding how the EP still gets a chance in second reading, the importance of avoiding legal uncertainty etc.
Denmark said it was disappointed about this, but accepted and submitted a written declaration
Later on, the list of A items was accepted by the Council
Oh, I...no, wait. Still doesn't make any sense.
Groklaw , meanwhile, has piece admitting from the get-go that the situation is nigh-impossible to understand: "Don't ask me to explain it, because I can't."
One thing seems clear, however. The EU Parliament has the ball (again). It has 3 months to accept or amend the decision. And that means it's MEP-writing time. Warns Mueller, "The hurdle is very high as we need an absolute majority of every member of parliament, which means 367 MEPs for every amendment to the directive."
Followed by a Q&A with DJ Spooky, aka Paul D. Miller, moderated by Henry Louis Gates, Jr., Chair of Harvard's Dept. of African and African American Studies and Director of the W.E.B. Du Bois Institute for African and African American Research at Harvard.
MARCH 11, 2005
$10 Harvard undergrads (2 per ID)
$20 general public
Tickets available at the Harvard box office: 617-496-2222
Esteemed Yale law professor/First Amendment scholar Jack Balkin, weighing in on who amongst the legions of bloggers ought to qualify as a journalist and therefore be protected under the "reporter's privilege":
Jonathan Glater's article in today's New York Times quotes me for the proposition that the reporter's privilege (the right, in some jurisdictions, to keep sources secret) should be extended to bloggers using a functional test. That is, a court should ask whether the blogger regularly gathers news, interviews sources, and produces content in roughly the same way that print and television reporters do. That would mean that a very large number of bloggers -- probably most -- would not enjoy the reporter's privilege. To enjoy the privilege the blogger would have to make some showing that they were functionally similar to reporters. The best evidence of this, however, would be relatively easy to provide -- it would be the blog itself.
You remember those faux rock bands that used to tour high schools in the '80s to get the kiddies jazzed about saying no to drugs? China just did the modern-day, state-sponsored version -- it held a televised concert with 100 Chinese pop celebrities preaching the perils of music piracy. I dunno -- think it'll work?
Better late than never -- our (b)link to (my ridiculously talented, extremely funny co-worker) Annalee Newitz's Build Your TV! Subhead reads: "As the FCC and the entertainment biz get ready to end home recording as we know it, a bunch of radical geeks are working on a solution or two." [SF Bay Guardian]
Fred von Lohmann on what the Grokster case will decide: "The question really boils down to, will America's technology companies be hiring more engineers, or will they be firing engineers and hiring lawyers instead?" [Industry Standard]
The furor is a shame and a sham. Bradley Smith and the Republicans aren't nearly as concerned with protecting blogs as they are with undermining McCain-Feingold.
Third, the faux-horrors that Smith proposes are insane and would be unconstitutional if the FEC tried to enforce them in the way that Smith predicts. To the extent that McCain-Feingold actually bars a blogger from "linking to a campaign website" or "posting a press release" from the campaign, I'd be willing to be the blogger that violates these stupid rules. I don't care what the internal FEC white papers say; that is clearly a First Amendment violation and I'd help tear down the law. Come and get me, motherf***ers.
Now, suddenly, I hear Denmark has voted to treat the software directive as a B-item only. ...It's not just a resolution. It's a binding decision to vote against the current proposal as an A-item (A is the rubber stamp variety), on Monday, and they will propose that it be handled as a B-item. That's a first. Others have voted against the directive, but to my knowledge this is the first country to call for it to be a B-item. In short, some are saying there may be a restart after all.
Via Fred von Lohmann @ Deep Links, the Eagle Forum in its brief [PDF] in the Grokster case (emphasis, mine):
In many ways, peer-to-peer technology is the printing press of the internet in distributing massive amounts of information quickly and cheaply to the world, and First Amendment rights are at stake. ... Citation of alleged copyright infringment by some users of the printing press is not justification for shutting down all presses, and certainly not before their powerful legitimate uses become fully apparent.
... Legislating from the bench is unjustified in general, and is particularly ill-suited to new technologies that facilitate constitutionally protected speech and association.
...and the American Conservative Union and National Taxpayers Union in their brief [PDF]:
The Court should see this for what it isan attempt to leverage a lawful, but statutorily limited, monopoly over the distribution of expressive "works of authorship" into an unwarranted and anti-competitive monopoly over the distribution of innovative technologies. ...
Podcasting, of course, is merely one of innumerable examples of innovative technology that builds upon, and interacts with, the peer-to-peer distribution networks of the kind that Respondents have enabled.
Here's your chance. EFF has an opening for an intellectual property attorney on our legal team. You'd get to work on cutting-edge cases dealing with public-interest technology issues and help shape national and international IP policy. We're looking for someone mid-level or higher, who can take a good idea and turn it into a lawsuit or an educational campaign and then run with it. The person will need to either live in the San Francisco Bay Area or be willing to relocate. For more details, check out the formal announcement below:
Staff Intellectual Property Attorney
EFF is seeking an intellectual property staff attorney for its legal team. Responsibilities will include litigation, public speaking, media outreach, plus legislative and regulatory advocacy, all in connection with a variety of intellectual property and high technology matters.
Qualified candidates should have roughly three years of experience with litigation in at least one substantive area of IP law (patent, copyright, trademark, or trade secret) and a solid knowledge of the litigation process. Candidates should also have significant experience managing cases, both in terms of overall case strategy as well as day-to-day projects and deadlines. Candidates should have good communication skills and interest in working with a team of highly motivated lawyers and activists in a hard-working nonprofit environment. Strong writing and analytical skills as well as the ability to be self-motivated and focused are essential. Tech savviness and familiarity with Internet civil liberties and high tech public interest issues preferred.
Interested applicants should submit a resume, writing sample, and references to ipjob--at--eff(dot)org.
EFF has the scoop about what happened at today's hearing in Apple v. Does. The upshot? There's no final ruling yet, and the decison may hinge on the question of whether Apple exhausted all methods of getting the information it wants before subpoenaing the journalists and their ISPs.
I can't come up with a coherent explanation of this. On one side we no doubt have the Cartel crowing victory in their jihad against their customers. Presumably more people have been scared into buying CDs? I find this hard to believe, given that all the ratings metrics I could find indicate that downloading via P2P nets is at an all-time high.
On the other side, Copyfighters including myself have claimed that CD sales were falling because the product sucks and is too expensive. That didn't change in 04, so far as I can tell. Retail prices held pretty steady and the vast majority of Cartel output is mega-hit-oriented paptastic products just like the four years preceding (or more like the 14 or 24 years preceding, but I digress). Can a few mega-hits such as Usher's 9-million selling Confessions really lift an entire nation's sales numbers?
If both sides' main arguments are wrong, to what can we attribute the rise? One thought is that it's a general economic trend. People and the economy were generally better off in 04 and perhaps more dollars in peoples' pockets translated into more entertainment spending? But if that's true, why have people shifted their dollars back into CDs when in the preceding years they were spending their entertainment dollars on games, DVDs and movies, all of which were enjoying robust growth as CD album sales slid down?
The New York Public Library is putting 250,000 images online (heading for half a million) including maps, photos back to the US Civil War, and illuminated medieval manuscripts. IP terms allow free personal downloads with no prearrangement and they're open to arrangements that will permit republication in traditional media or on the Internet. Librarians are totally cool.
The target audience is still designers but the article gives some good insights for the general reader into how content aggregators (including blogs) change our experience of information particularly on the Web. Also has some practical tips for those who want to design to accommodate this behavior rather than fighting it. Are you listening, New York Times Company?
(Disclosure: the founder and principal of UIE is a friend and professional colleague of mine. I don't know Joshua Porter and am not blogging this for any benefit of my own.)
James Grimmelman @ LawMeme: "Yes, I know that the blogosphere is in a tizzy about FEC Commissioner Bradley Smith's comments that the FEC will start regulating political blogs as a form of campaign advertising. But I say with all the confidence--nay, arrogance--that three years of law school give, that it won't happen. ...
This bout of bloggeristic panic does a few things, none of them productive. First, it redirects an honest debate over McCain-Feingold into an unhelpful debate over a parade of horribles associated with a questionable interpretation of one small offshoot of the act. Second, it fuels Big Bad Big Brother fears about the wrong things: go worry about the material witness statute or the driver's licence biometric standards. Third, it just reinforces the belief that the number one thing the government, like everyone else, cares about is blogs. They're just not that into you. And fourth, it completely ignores the ongoing role of the courts in protecting free speech rights."
How, if at all, should the 2002 campaign finance reform law (commonly known as McCain-Feingold) apply to the Internet and to bloggers in particular? That's the question before the FEC (Federal Election Commission), which gave the 'net a free pass in 02. Problem is, that 4-2 ruling by the FEC was overturned last fall. Since the FEC couldn't decide to appeal that ruling it now has to enter into rulemaking, and the results for bloggers could be... well, insert your own apocalyptic adjective here.
CNET has an interview with Bradley Smith, one of the six FEC commissioners. And it's not encouraging. Smith points out that acts as simple as linking to a campaign Web site could be considered a political contribution. The FEC will need to decide not only what counts as a contribution, but how to value each activity on the net. It will have to decide such esoterica as whether a link from a high-traffic site is worth more than one from a low-traffic site. And what about links that show up in search engine results pages? Will people searching for information suddenly find holes in their search results because corporations such as Google and Yahoo! are forbidden to make campaign contributions? The list of potentially idiotic rulings that could emerge from this staggers my imagination.
My personal feeling is that the only way out of this tar pit is to wave the magic "journalist exemption" wand. Right now, a standard media outlet can produce any amount of campaign coverage without accounting for the spending, in the name of journalistic freedom. Like it or not, the FEC is now going to have to rule on whether or not to apply that exemption to everything from NYTimes.com, through CNET.com and on to blogs like this one. I can't wait to see what happens when they discover LiveJournal.
However, the issue is far from over, as Bob Cringely points out in a good column today. He notes that traffic blocking is crude and probably illegal, but improving quality of service is not. Therefore, all the big telcos/backbone providers need to do is wrap their VoIP packets with QoS headers, and set their routers to give preferential treatment to appropriately marked packets. The result will be degraded service for Vonage customers, whose packets will get left hanging on router queues.
Coincidentally it will also cause life to suck more for other stream providers such as podcasters, streaming radio, and basically every other "rich" medium that depends on timeliness and rough packet-order arrival. I imagine that once the service is up and running big companies (e.g. game networks, big movie studios) will sign up for it, further degrading the packet stream for the independents and small fry.
As I've said before, what good is a copyright on something nobody can watch? What value a revenue on content that can't reach its audience? This stuff will matter, and it will probably matter in '05 or '06 at the latest.
Derek Slater, commenting on how the Recording Artists Coalition and others have responded [PDF] to the artists' brief [PDF] supporting the respondents in the Grokster case: "[The press release seems to say] Return to the flock, lest your soul be lost forever. ...It is one thing to naively think no artists consider P2P and Sony beneficial. It is quite another to consider their interests illegitimate and to act as if the artists do not know what is in their best interests, as the RAC clearly does and Ross seems to do -- it is remarkably condescending."
Campaign finance reform is coming to the internet, and the Medium Lobster must say it's long overdue. No longer will bloggers simply be able to freely link to a candidate's website, or wildly and irresponsibly endorse one politician's views over another, or corrupt the democratic process with an overpowering onslaught of HTML-borne free speech. Thanks to John McCain, Russ Feingold and U.S. District Court judge Colleen Kollar-Kotelly, political speech on the internet will be as the Founding Fathers always wished it would be: bottled up and controlled.
San Jose Mercury News:"In a case with implications for the freedom to blog, a San Jose judge tentatively ruled Thursday that Apple Computer can force three online publishers to surrender the names of confidential sources who disclosed information about the company's upcoming products. Kleinberg offered no explanation for the preliminary ruling. He will hear arguments today from Apple's attorneys and the Electronic Frontier Foundation, a San Francisco digital rights group representing two of the three websites Apple subpoenaed -- Apple Insider and PowerPage."
It's not over until it's over, of course. This was a tentative ruling, and the actual ruling will happen at the hearing today at 10:00 a.m.
More to come on this; previous Copyfight coverage here, here, and here. EFF press release on the hearing here. A disturbing article on a threatened regulatory "crackdown" on bloggers here. Will this make more people understand why we need to stand up for and clarify online journalists' rights?
The EFF/Public Knowledge press conference on the Grokster case is now available [MP3, 37M] for listening on the EFF site. Public Knowledge's briefing materials are here; also see Beyond Grokster, a Robert Schwartz/Mike Godwin critique of various policy proposals Congress may consider no matter what the outcome of the case.
Ernie Miller, examining the Jonathan Zittrain/John Palfrey/Terry Fisher brief in the Grokster case [PDF], observes that "the secondary liability standard that Hollywood promotes has perverse incentives" (emphasis, mine):
If, as they argue, technologies should be liable based on the prevalence of infringing activity using the technologies, the incentive is for Hollywood to passively encourage infringing content in order to gain control over the infringing technology.
Imagine the VCR. What if Hollywood had, as they originally did, continued to price pre-recorded videotapes at well over $100 a piece (instead of <$20 as they do now)? Well, there would be a lot more videotape piracy as people would be unable to easily afford to purchase them.
Now consider P2P. What if there were no iTunes? What if there were no Napster 2.0? Or what if there were, but they charged outrageous rates such as $50 per downloaded album (and you could only download albums)? Wouldn't there be even more copyright infringement on the Internet than there is currently? If Hollywood has its way in Grokster, wouldn't their incentives be to resist new technologies until they had a court determine the technology was primarily used for infringement and thus subject to their control?
Seems logical to me. The more people infringe, the louder that Holywood and the record companies can yell "thief," and the bigger the club that Congress and the courts will hand them to beat down any copying technology they wish.
Many developing countries -- most of which were not invited -- were heavily critical of the meeting. They noted that Brazil was the only country among the 14 proponents of a 'WIPO Development Agenda' invited to the event, suggesting that this may have been an attempt to make support for the development agenda appear to be an isolated point of view. The other Southern representatives in attendance were from countries that have been passive in WIPO debates on the development agenda, or from states that are already committed by bilateral or regional trade agreements to intellectual property standards that go beyond those required by the WTO, such as Chile and Morocco.
About.com has a really amusing piece by Cory Dietz claiming that the RIAA is suing people for listening to music in cars. The claim is that the music was only provided to the original owner of the car, so passengers and hitchhikers who listen to music in the vehicle are doing so illegally.
Sadly, this story is close enough to believable that About felt the need to mark it prominently as satire. Given the reach of the Cartel to date, I confess I didn't find the basic premise totally beyond the realm of belief.
I love having readers who are smarter than I am. Yesterday I erroneously asserted that downloading was legal. In particular, downloading is not the act that the RIAA has sued P2P users for. I have been holding this misconception for some time, powered initially by a story I blogged back in September of last year: Jonathan Pareles' Critics Notebook (NYTimes, sorry, requires registration. Use dbonito/privacy if you like). In this article, Pareles leads with the claim that "Downloading music from the Internet is not illegal." This is both true, and false.
As commenter James pointed out, the Ninth Circuit decision in Napster highlighted two infringements in the Napster service: right of distribution and right of reproduction. To date, the Cartel's jihad has been against users who violate the distribution right. This is a far easier tort to claim against. As Pareles' column points out, there is a ton of free, legal music available on the Web for download. You also have a very hard time proving that a song on someone's computer was in fact downloaded. People rip CDs that they own legally, for example. So mere possession isn't good evidence.
But, it is illegal to download music that is not being provided for free by the rights-holder. So, to be precise, I should have said that "the act of downloading is itself not illegal - the illegality comes in making a copy of a work you don't have permission to copy." Sometimes, downloading involves making such a forbidden copy.
Thanks to everyone who wrote to me pointing out my error or urging a clarification.
At the heart of Petitioners' argument is an arrogant and unreasonable claim -- even if made to the legislature empowered to determine such a general issue of social policy -- that the Internet must be designed for the convenience of their business model, and to the extent that its design reflects other concerns, the Internet should be illegal.
Petitioners' view of what constitutes the foundation of copyright law in the digital age is as notable for its carefully-assumed air of technical naivete as for the audacity with which it identifies their financial interest with the purpose of the entire legal regime.
Despite petitioners' apocalyptic rhetoric, this case follows a familiar pattern in the history of copyright: incumbent rights-holders have often objected to new technologies of distribution that force innovation on the understandably reluctant monopolist.
Siva Vaidhyanathan and his fellow media studies' professors have filed their brief in the Grokster case [PDF]. They argue that the Betamax rule has protected more than the freedom to create new copying technologies. It has also protected the activities that these technologies allow -- namely, the fair use of copyrighted materials.
[Both the Supreme Court and Congress] acknowledge that teaching and research often require the unauthorized copying, distribution, re-fashioning, and performance of copyrighted works without permission from the copyright holder, and thus have cleared a space within the strictures of copyright law to allow for such publicly beneficial uses. The foundation of that space is "fair use," which, though an affirmative defense to the accusation of infringement, has granted educators a certain measure of comfort that they would not be sued by copyright holders for infringement. However, the penumbra of perceived "users" rights' that emanate from Sec. 107 of the Copyright Act has proven inadequate to protect many important acts central to teaching and research. ...Peer-to-peer technology is not functionally distinct from other, more familiar, less demonized methods of resolving communicative processes such as sending e-mail, creating hyperlinks, and employing search engines such as Google.com. All of these functions potentially (and commonly) infringe the copyrights of others. ....[We] wish to encourage the Court to consider that Sony did more than legalize home taping and "time shifting." It democratized participation in the project of recording the collective memory of this dynamic nation.
I'm delighted to see this beautiful articulation of why keeping copyright law and policy balanced is so important to our culture. But from Siva I expected no less.
The clear rule of law this Court announced in Sony has served the nation well for more than 20 years. ...The various tests proposed by Petitioners would require an inventor to predict, at the time it creates a new product, not only how people will use a product that has yet to be designed, let alone introduced in the marketplace, but also which of the various potential uses will ultimately predominate over the other potential uses. Such predications are impossible in the real world, especially since the uses to which products are put routinely change over time.
Digital technologies are by their nature copying technologies; there will always be a risk that any digital technology, however well intentioned its designer, will be put to infringing uses. Faced with impossible predictions about how as yet undeveloped technologies might be used, ambiguous tests that would be unpredictable in their application, and nearly limitless statutory damages for guessing wrong about the unknowable, innovators, such as Intel, would grow timid.
File this under "don't you people ever learn ANYTHING?" How many people are driven to download because they don't want to pay $18 for a CD that has one or two tracks they want. Raise the price enough and legitimate services will start to look less appealing compared with free. Remember, kids, downloading itself isn't illegal, it's the sharing that people get busted for. I can download to my heart's content without violating a single law or risking becoming part of the Cartel's jihad. But it's a pain. A hassle. Spending a buck is easier most of the time. Make it a few bucks and maybe I'll reconsider.
It is critical to understand that the threat of secondary liability from copyright suits is qualitatively different from most other sorts of business risk that investors can insure against or built into their risk calculations. The mandatory mechanism of statutory damages -- designed to discourage direct infringement -- has crushing implications for vendors of multi-purpose technologies, where damages from unforeseen users can quickly mount in the millions and even billions of dollars. ...Grokster and StreamCast are just stalking horses for the real targets of the Motion Picture Studios and the Recording Companies. They want to force fundamental, and hugely expensive, changes in the software and hardware that constitutes the Internet, by imposing an obligation on providers to design and engineer their systems to block unauthorized file sharing. Such an open-ended standard of liability would be a proverbial Pandora's box.
Cory @ BoingBoing: "This brief kicks a lot of ass -- it is a learned, lucid and brilliant explanation of why the studios' call for self-censoring networks is doomed."
P2P.net with a reminder: This is one of many briefs that will be filed for the respondents today. EFF and Public Knowledge are holding a press conference on the briefs at 2:00 p.m. EST. If all goes well technically, we'll be posting an audio recording at Deep Links. As always, briefs will be posted throughout the day here. Stay tuned.
Update: EFF has updated our Betamax case page so that it shines a brighter light on the issues at stake in Grokster.