Corante

AUTHORS

Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Aaron Swartz
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Alan Wexelblat
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


Copyfight

Monthly Archives

April 29, 2005

Surprise! Students Disagree with Gonzales on File-sharing

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Posted by Jason Schultz

From the LA Times:

In his first trip to California as the nation's attorney general, Alberto R. Gonzales told a group of high school students to just say no to online piracy.

But, for many of the students, the response was to just say "why not?"

During a daylong UCLA seminar featuring Gonzales, students peppered speakers with tough questions about the real effect of piracy. Some even suggested that government should focus more on tackling poverty and improving education than on jailing kids who download movies, music and software.

And the kicker:

Unfazed by the students' skepticism, Gonzales said this was only the beginning of an intensive educational outreach effort. He wanted to let the students know that intellectual property theft was illegal, carried consequences and could permanently stain their records.

"Sitting through a one-hour, two-hour session may not be enough…. It takes awhile to educate people," he told reporters later.

Yes, I'm sure a few weeks of "reorientation" in GTMO will do the trick quite nicely...

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

Mickey Mouse Joins Public Knowledge

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Posted by Ernest Miller

Mickey Mouse has been saved, at least according to these undoctored photos showing the famous mouse hanging out with Public Knowledge president Gigi Sohn in Washington DC (Gigi 'N' Mickey).

In reality, the mouse statues are part of 75 InspEARations, a traveling exhibit of 75 Mickey Mouse statues with various designs. I saw the exhibit when it was at Disney's California Adventure. It was pretty disappointing (the statues, not just DCA). Instead of artists (as in many of the other city-wide statue projects), they were designed by celebrities who generally had no artistic sense and quotidian sensibilities. "Oh, gee, a Mickey Mouse made to look like a Lakers basketball player designed by Shaq." Sad.

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

Because a Nationwide Outcry Wasn't Enough the Second Time Either

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Posted by Alan Wexelblat

WIRED warns that Florida has put out an RFP for sequels to MATRIX, the massive tracking database that was abandoned by states and defunded by the feds on the heels of massive popular outcry. To make it even less amusing, the intention is to put even more data into the system, not that this will make it any more secure, less intrusive or more effective. But hey, who's nitpicking?

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

When More is Too Darned Much

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Posted by Alan Wexelblat

Philip H. Albert has a nice opinion piece on LinuxInsider noting that the proliferation of open source licenses is harmful to the field as a whole. With so many options, all of which really require evaluation by a lawyer, the disincentive for a company to use any of them goes up quickly. Companies and people just pick whatever seems best rather than crafting a best-fit solution because the cost of best-fit is too high.

The result is a bunch of ill-fitting agreements and higher dissatisfaction both on the part of creators, who aren't getting the behavior they really want, and on the part of consumers who have to read and understand all these myriad licenses if they want to use open source.

It's essentially the same disease the all-but-killed Unix/Linux in the marketplace. You can argue the merits of Debian vs Red Hat vs Solaris vs HP-UX vs vs vs until you're blue in the face but unless you're in that miniscule 1/100th of 1% of ultra-geekdom you really don't care. What I want is a fast, safe, functional open-source system that doesn't require me to memorize a Brittanica'sworth of pointless esoterica. Why nobody(*) in the OSS community seems to recognize this is a lesson in and of itself.

Anyone from Creative Commons want to provide a different perspective?

Update: John Wilbanks provides this link to the CC GPL.

(*) Yes, I recognize there are exceptions, but they're all too atypical.

Comments (8) + TrackBacks (0) | Category: IP Use

April 28, 2005

Help Break the IP Stupidity Pact

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Posted by

Not long after James Boyle penned his excellent Financial Times column bemoaning the "evidence-free" way legislators craft intellectual property law and policy, Senator Rick Santorum gave us a prime example. Specifically, the Senator introduced a bill to stop the publicly funded National Weather Service (NWS) from publishing user-friendly weather data on the Internet. Why? Because he believes that private companies like AccuWeather would make even more money if they didn't have to compete with "free."

As Boyle pointed out in an earlier FT column, AccuWeather likely wouldn't exist at all if it weren't for the US practice of making taxpayer-funded raw weather data freely available at the cost of reproduction. In other words, the private weather industry is already benefiting -- richly -- from our tax dollars. Senator Santorum is proposing that we pay twice for our weather information in order to further line the pockets of private companies.

In my previous post on the subject, I suggested that very few people would challenge the Senator on his assumption that the weather industry can't compete with free -- even though it already is. Here's your opportunity. EFF has just posted an action alert on the Santorum bill with a model letter so you can tell your representative you oppose it. Check it out, add your own thoughts, and send a letter today. And don't forget to pass the word along -- we need each and every voice of reason out there to chime in on this one.

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

April 27, 2005

This Data Just Wants to Be Public

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Posted by Alan Wexelblat

In the "better late than never" category, Celera Genomics Group - the for-profit arm of the race to sequence the human genome - has agreed to stop selling genetic information and put its data into the public domain. Without much fanfare (in fact the announcement was made in a regular quarterly earnings concall with investors and analysts) Celera announced that after July 1 it would contribute much of its DNA sequence data to public domain through the National Center for Biotechnology Information, a division of the National Institutes of Health.

The uses and abuses of genetic information are clearly shaping up to be one of the biggest legal and ethical battles of this century. It would be nice to mark this down as a moral victory for forces of free information, but the simple fact is that Celera couldn't make a profitable business of this. That may be due to the nature of the information or the immaturity of the marketplace. I believe we'll have to fight this battle several more times in the years to come.

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

April 26, 2005

Roget's New Millennium Reveals the Truth!

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Posted by Alan Wexelblat

I can't make this stuff up. If you look up "hypocritical" on thesaurus.com, you get "Hollywood" as a synonym. The data source is listed as Roget's New Millennium™ Thesaurus, First Edition (v 1.1.1). My hat is off to them.

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

Cracks in Omerta

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Posted by Alan Wexelblat

Last year I blogged somewhat on the topic of modern-day radio payola and how it is distorting the listening landscape. In my fantasies a crusading AG exposes the industry's corruption and cleans things up. Now it appears that the code of silence around this practice may break, as two "independent music promoters" have filed suit against Universal Music Group alleging that the latter forced them to submit false invoices.

So the problem, guys, is not that you were part of the payola racket, but that you got fired and blacklisted for refusing to pad your payola records? Excuse me while I cry a crocodile tear river here. The whole system is rotten to the core. Promoters don't promote. Artists get ripped off. Producers get bullied. And the Cartel hollers "piracy" when you and I share songs? What a hypocritical bunch of hooey. How about we put the entire bunch of 'em out to pasture and actually let artists promote and sell their music to consumers without this blood-sucking mass of sanctimonious double-dealing?

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

April 25, 2005

Engine vs. Caboose

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Posted by Alan Wexelblat

eWeek story on the Association for Computing Technology's Intellectual Property and Technology Summit panel on whether IP protection policies promote or inhibit innovation. The trivial answer is, of course, both. The protection regime is a game and those who have learned how to play it will benefit and grow their businesses. Those who haven't will get crushed. But these are business questions, not innovation questions. For simple innovation, IP protection is mostly irrelevant. However, innovation is rarely simple; it's almost always bound up in business context (even, sadly, in universities today).

The value of patents, particularly to organizations like the Apache Software Foundation which don't have large legal staffs or budgets to enforce them, is debatable. The current abysmal quality of patents issuing from the USPTO only makes the situation worse.

I won't rehash the patents-good/patents-evil debate here, but I would like to find out more about this panel. I could not find an online record of the conference, let alone this panel - anyone have a pointer? I did notice that quite a few places confuse "Association for Computing Technology" with ACM, the "Association for Computing Machinery".

EDIT: Copyfight reader Brandon Rash provides links to the ACT Conference Web site and a brief note in the EEJD blog.

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

Fabulous Presentation on Beatallica & Ulrich v. Sony at Signal or Noise

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Posted by Jason Schultz

David Dixon, the Webmaster of Puppets for the parody band Beatallica at the Signal or Noise II: Creative Revolution? symposium gives a fabulous presentation (9MB MP3) on the band's legal run-in with Sony over the composition rights to the Beatles songs they parodied and how Lars Ulrich redeemed himself from the dark days of fighting Napster by defending the band's fair use. Check it out.

p.s. Includes a great shout-out to BitTorrent and an afterward by my co-worker Wendy Seltzer.

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

French Court Outlaws DRM?

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Posted by Jason Schultz

According to Canadian IP professor Michael Geist:

A French court has blocked the use of DVD copy-protection in a suit launched by a consumer group. The court ruled that the protection ran counter to consumer private copying rights.

Decision is in French, so I have no idea how far it goes. If anyone wants to translate, please do!

Comments (3) + TrackBacks (0) | Category: IP Abuse

April 23, 2005

April 22, 2005

The Revolution Is Thirsty

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Posted by

My EFF colleague and fellow copyfighter Ren Bucholz sends details about this month's CopyNight (hyperlinks, mine):


April's CopyNight is upon us, and we'll be celebrating alongside WIPO's "World Intellectual Property Day" on Tuesday, April 26th. CopyNight is a monthly social gathering for fans of free culture, and conversations range from filesharing to IP reform to whatever else is on your community's radar. This month we've got events scheduled in:

San Francisco, CA
Chicago, IL
Toronto, Ontario
Austin, TX
Raleigh, NC
Washington, DC
New York, NY
Cambridge, MA

Don't see your community on the list? Volunteer to host a future CopyNight by sending a note to info@copynight.org! You can also read more about last month's CopyNight in this article from InfoWorld and the Industry Standard.


Thanks, Ren!

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

James Boyle on Copyright Stupidity

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Posted by

James Boyle has just delivered the pièce de résistance in his three-part series on copyright for the Financial Times: Deconstructing Stupidity. The stupidity in question is the way that governments typically make intellectual property law and policy -- that is, without evidence that it will produce the desired social or economic benefit.

"If the stakes were trivial, no one would care," observes Boyle. "But intellectual property (IP) is important. These are the ground rules of the information society. Mistakes hurt us. They have costs to free speech, competition, innovation, and science."

Why, then, do we make these mistakes? According to Boyle, it's not only "corporate capture" that makes governments stupid about copyright. They also suffer from any number of delusions, making them susceptible to "anecdote and scaremongering."


The film and music industries are tiny compared the consumer electronics industry. Yet copyright law dances to the tune played by the former, not the latter. Open source software is big business. But the international IP bureaucracies seem to view it as godless communism.

If money talks, why can decision-makers only hear one side of the conversation? Corporate capture can only be part of the explanation. Something more is needed. We need to deconstruct the culture of IP stupidity, to understand it so we can change it. But this is a rich and complex stupidity, like a fine Margaux. I can only review a few flavours.


The three flavors in this particular tasting: "maximalism," "authorial romance," and the legacy effects of "industry contract."

As Boyle writes, IP delusions are not merely stupidity. They constitute "an ideology, a worldview, like flat earth-ism. But the world is not flat and the stupidity pact is not what we want to sign."

Absolutely not. But delusions are by their nature difficult to shake.

In part two of the series, Boyle pointed out that in the US, we make weather data available at cost -- yet we have a thriving private weather industry. Now, Siva Vaidhyanathan brings news that Senator Rick Santorum (R-PA) wants to prevent the National Weather Service from giving away weather information because it competes with the Weather Channel.

"It is not an easy prospect for a business to attract advertisers, subscribers or investors when the government is providing similar products and services for free," says Santorum in a Palm Beach Post article. How many people will challenge the Senator on his assumption that the weather industry can't compete with free? I'll wager not many -- despite the fact that it already is.

Comments (3) + TrackBacks (0) | Category: Big Thoughts

Tech Reality != Business Reality

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Posted by Alan Wexelblat

Robert X's latest column shows he's been hitting off the same crack pipe as Vint Cerf. He looks ahead a few years and sees the big winner in the rollout of WiMax being BitTorrent because, properly used, it would vastly reduce the studios' costs for supplying downloadable movies.

This is technically true but totally fails to take into account a host of business realities or "facts on the ground" as the military terms them. These include: the Cartel's overt hostility to new technologies, the stagnation and entrenchment of business models, the fear of uncontrolled distribution, etc. The Amazon download-promos site I blogged earlier could easily have been put up by the Cartel five years ago, but they didn't. And they won't. It's anathema to their nature.

About the only way I could see this happening is if the Cartel succeeds in 0wnz0ring BitTorrent in the way they now 0wnz Napster. Maybe an emasculated BitTorrent could be deployed in the service of providing overpriced download rentals. But I doubt it.

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

Art, Expression and New Tech

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Posted by Alan Wexelblat

A nice, if lightweight, piece in the Boston Globe from Stacey M. Perlman on the interpenetration of mobile tech and artistic/cultural expression. She highlights a couple of projects that use location markers and cell phone technology to permit people to share information about places. Each project involves leaving a physical marker with a cell number; when an interested person calls in and enters the marker-specific number, she gets information left by another person. Nominally the information is about the place so marked, but it could be as varied as a restaurant review ("Eat here, it's great!") or an intimate story ("This is the spot where my wife and I first kissed"). The degree of control exercised over the content varies from project to project and these two are only samples out of a vast space that has been evolving for at least the last ten years.

Still, it's interesting to me because I believe art can be used to project forward into what uses may emerge for technologies. Proposals like those made by MGM in its attempt to smash Grokster are not only deleterious to consumers, they're anathema to the creative arts. How could any inventor begin to predict the variety of art projects that will employ his new technology?

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

Some Downloading Is Legal (and Updates Every 6 Hours)

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Posted by Alan Wexelblat

Amazon has put together a page of free & legal music downloads, most in MP3 format and all with no DRM restrictions. The page is updated every six hours. This is good. There should be P2P mirrors of this to spread the load around. Anyone volunteering to script it?

Of course, this is not a free-spirited non-commercial endeavor. Amazon sells digital music, both on platters and as paid downloads. The page links to Amazon's own downloads, and offers plenty of opportunity for people to buy the associated for-pay material. What I like about this is the attitude - here we have a very big commercial company saying "We recognize that downloadable music can promote sales; we believe giving resources to this endeavor will drive benefits we can measure in our bottom line." I hope they're right. I wish the Cartel was listening; we desperately need more business models that integrate free and pay in new and interesting ways.

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

April 21, 2005

RIACLU Studies Obvious

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Posted by Alan Wexelblat

Here's a stunner: the Rhode Island ACLU has found that libraries inconsistently apply Internet filtering. They overfilter, don't know the law, don't permit the filters to be turned off by adults, et cetera. Librarians are not cops. They shouldn't be. Laws that try to force librarians to act as cops are... work with me here.... STOO PID. The underlying law, CIPA, should be thoroughly trashed as soon as possible, SCOTUS decisions to the contrary notwithstanding.

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

April 20, 2005

Intertrust Up, Macrovision Down

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Posted by Alan Wexelblat

Faultline report published on The Reg indicating that the US Board of Patent Appeals and Interferences has ruled that InterTrust's DRM patents have precedence over Macrovision's. At least, in the US, because that's based on "first invention." However, overseas the nod usually goes to application filing date. There, Macrovision claims to have the edge, though I don't think they've gotten an official court ruling anywhere yet. InterTrust seems to believe it owns the international patents as well.

At stake is the MPEG LA licensing group patent pool and the potential very large pot of royalties that will emerge from it as DRM starts to become an issue on mobile phones.

Previous maunderings on the issue of mobile IP and its impacts on near-term business prospects here. Previous commentary on the InterTrust debacle over there.

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

What, Exactly, Did Congress Propose to Legalize?

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Posted by Alan Wexelblat

A Reg headline caught my eye: Congress legalizes DVD censorship. *Blink* OK, that's not totally out of character, but what's up? The article, by Thomas C Greene, describes a bill called the Family Movie Act.

According to Greene, this bill "indemnifies any company that makes prudish versions of movies available without authorization." That sounds a lot like sharing remixes, which I know Congress won't go for. What means this "makes... available" anyway? So off I go to Thomas to read the bill. Unfortunately there are four versions in there, and it's not clear which one the House-Senate conference committee actually sent to the President's desk.

As far as I can glean, this bill legitimizes the unauthorized (by the original artists) creation of derivative works, so long as they're under a "family friendly" rubric and they're not resold for commerical purposes. The idea is not to produce a new DVD per se, but to permit technology, such as that made by companies like ClearPlay, that allows DVD players to show a different version of the DVD than might originally have been on the disk, for example by skipping past objectionable content, or overlaying G-rated audio. ClearPlay's current product involves "downloadable filter templates" that can automatically skip past "objectionable" content. According to the company site, the filters go on a movie-by-movie basis, so you download the specific filter for the movie you want to watch.

Unless there's something in the final bill that I missed (anyone have a link to it?) I don't see how this is censorship. My guess is that what you end up with is a lot like watching movies on airline flights. Greene does note (citing Marjorie Heins of the Free Expression Policy Project) that optional technologies have a distressing tendency to become mandates, such as Internet nanny filters in public libraries. Agreed that's a danger, but I still don't see a problem with the home consumer customizing the family viewing environment.

Update: Cory has a rant about this bill, and WIRED's story by Katie Dean provides a handy link into Thomas. Dean links to the House version of the bill. Thanks to commenter using the handle "joe" for these pointers.

Update 2: the story is also appearing on more conventional media, including Declan on CNET, and an unbylined AP story (here on siliconvalley.com). Declan points out that the draconian punishments in the bill would in theory permit authorities to target individual P2P users with remarkably high penalties for sharing a single movie. Pontification on the obvious decay of a society that treats "theft" of "virtual property" more severely than actual theft of real property are left as an exercise for someone else.

Comments (14) + TrackBacks (0) | Category: Laws and Regulations

Pope Palpatine I

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Posted by Alan Wexelblat

This won't last long. Wikipedia's current entry for the newly elected Pope has a rather... interesting picture associated with it. I doubt either Lucas or the Vatican will see the humor. (separate link for when it gets taken down off the papal page)

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

April 19, 2005

Uses for Useless DRM

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Posted by

Patrick Ross writes that I make a "flawed argument" against DRM in my post below on the Cornell University debate, "The Download Debate Strikes Back." In fact, I make no argument at all. I report what Alec French argued, and indicate my dismay/disbelief.

For those who didn't watch the debate, Mr. French asserts that DRM benefits the consumer because you can choose either to pay "5 cents" to hear something once (doesn't that make the radio suddenly seem remarkably appealing?) or 99 cents+ per song to...well, presumably download and listen to music within a proprietary system like iTunes, presumably under licensing terms indicating that your ability to copy or take your music with you is subject to additional restrictions at any time.

So DRM is a great deal for consumers because we have long desired more...price discrimination. We're also champing at the bit to pay more for a collection of individual songs than we did for a whole album, while getting less for the money.

My EFF colleague Fred von Lohmann has a fresh post @ Deep Links on what one flavor of DRM (AACS) is good for -- given, of course, that it's not good for consumers:


So why are they bothering with [AACS DRM]? Not because it will slow "digital piracy" (always the public justification for DRM and laws like the DMCA that support it), but because it will give the Hollywood Cartel more power over the market for next-gen DVD players. When a Chinese company makes a player that fails to pay AACS royalties, or makes its product too easy to modify, or ignores region coding, or otherwise fails to toe the line, the Hollywood Cartel can "revoke" that player's device key. Suddenly, everyone who owns that player can no longer play new movies.

Ah, yes -- use DRM to punish the innocent in the hope of pressuring player makers into obedience, all the while doing nothing to slow filesharing. Isn't it time we started to question the premise of DRM sytems like this, as well as the laws intended to support them?

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

Someone Hire This Kid

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Posted by Alan Wexelblat

To put it mildly, Justice Antonin Scalia got "more than he bargained for" when he agreed to answer NYU Law students' questions. Student Eric Berndt asked Scalia to explain his dissent in Lawrence v. Texas, the case that overturned Bowers v. Hardwick and struck down sodomy laws. Not satisfied with the answer, Berndt asked Scalia, "Do you sodomize your wife?"

In an open letter (here reprinted as an op-ed in The Nation), Berndt explains his reasoning and why he felt it necessary to engage in what was clearly a hostile form of expression.

Comments (9) + TrackBacks (0) | Category: Speech

When Are You Going to Sue the President? - the Website

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Posted by

If you've been following the conversation here at Copyfight about the Cornell University debate where Siva Vaidhyanathan asked RIAA President Cary Sherman when he was planning to sue the President for allegedly downloading a friend's music to the First iPod, you may want to check out what the provocateurs over at Downhill Battle are up to.

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

April 18, 2005

What the Cartel Thinks

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Posted by Alan Wexelblat

Couple of stories on CNET today purporting to tell us what the Cartel thinks. The first, a brief bit by Renai LeMay makes Vint Cerf sound like he's smoking crack. "Hollywood interested in BitTorrent," says the headline. Ah, yeah, that'd be like "Piranhas interested in meat in water," right?

No, actually, Cerf appears to have spoken to "at least two interested movie producers." This is immediately recognizable as a reporter blowing it out of proportion, since no two producers speak for any studio, let alone Hollywood. Studio execs aren't producers; studio execs are hard-nosed accounting types with little or no interest in the creative aspects making movies except insofar as that improves their bottom lines. And their response to new technologies is, as we've seen, to open a can of legal whup-ass rather than sit down and rationally discuss options. So if Cerf is indeed chatting up a few producers, more power to him. But that's got zero to do with what that arm of the Cartel is interested in.

John Borland turns in a longer and more thoughtful piece on Steve Jobs vs. the music moguls. Borland indicates that the music arm of the Cartel are frustrated by Jobs' intransigence on price and are trying to wrest back control over what they see as "their" industry from this upstart geek. This fits known patterns of behavior both for the Cartel and for Jobs (shades of Disney v. Pixar - another seemingly sweet deal that left Jobs' team in control and the other side scrambling for new avenues after being essentially shut out). So if the players stay true to form Borland is likely right.

Borland paints a picture of Jobs' intransigence on issues such as formats, DRM, and variations in price to fit the Cartel's model of what's hot. The fact that iTunes continues to dominate (70% market share according to Borland) just might be a clue that he's onto something.

The supposed savior for the music business is mobile, where people are apparently willing to pay $2.50 for a poor quality snippet of a song they can get in whole for $.99 elsewhere. That does seem like stupid behavior on the face of it, but if it's what people will pay then you can bet the Cartel will go after it. The Cartel are better aligned with the mobile networks, which are designed to move content and promote airtime minutes, while Apple continues to remain pretty squarely in the hardware sales business.

One possible monkey wrench in the works would be if Apple moved more strongly in the direction of streaming to iPods. Podcasting is one obvious example of streams, but there's no inherent reason why content now streaming over the Web couldn't also be streamed to iPods. In fact, my favorite Web streaming site (di.fm) already offers "DI for MP3 Players." It would be a simple move for Apple to sign up DI, or work through a few redistributors like Shoutcast to give iPod users access to a huge variety of streams. One can easily imagine such a move giving Cary Sherman more headaches.

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One Hopes the Results Will be Public Domain

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Posted by Alan Wexelblat

Oxford University researchers claim to be able to use an infra-red technology to finally read the Oxyrhynchus Papyri. If you, like me, had no idea what the heck these were, they're a potential treasure trove of Greek plays, writings by Sophocles, Euripides, and Hesiod, as well as possible Christian gospels written around the time of the earliest parts of the New Testament. Obviously this storehouse would be of tremendous value to scholars and theologians.

The original papyri were found, literally in a garbage dump, over 100 years ago. They've been stored in boxes in Oxford's Sackler Library. Apparently they're completely illegible to the naked eye, but someone had the foresight to save them in hopes they could later be read.

Reading the text is only the first step. Since most of the "documents" are actually fragments there's another task of putting together pieces of a jigsaw puzzle to rebuild actual wholes, estimated to run to about five million words in five or six languages.

The project has been sponsored by by the London-based Egypt Exploration Society whose Web site doesn't appear to contain any information on plans for the recovered material. I also checked around Oxford's site but didn't see anything relevant. The papyri themselves have their own Web site.

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When Are You Going to Sue the President? - Transcoded

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Your Friendly Neighbourhood Transcoder has generously transcoded "The Download Debate Strikes Back" for people who cannot abide RealMedia: "Hot off the presses... transcoded using ffmpeg and lame into non-toxic media formats; packaged with matroska. Enjoy the debate."

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The Women of IP Law & Policy: More than a Footnote

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Siva asks why more women aren't featured at debates like this one, especially when there are outstanding female intellectual property scholars like Rosemarie Rosemary Coombe, Pam Samuelson, Jessica Litman, Julie Cohen, Ann Bartow, Sonia Katyal, Susan Crawford, Beth Simone Noveck, and Rebecca Tushnet.

Or, for that matter, Peggy Radin, Wendy Gordon, Maureen O'Rourke, Stacey Dogan, Jen Chandler, Jane Bailey, Elizabeth Judge, Deb Tussey, Cynthia Ho, Ruth Okediji, Funmi Orewa, and Jacqui Lipton.

Not to mention activists like Jenny Toomey, Wendy Seltzer, and Carrie McLaren, and the technology-focused women listed at Misbehaving.

Of course, the list could go on and on. Writes Siva:


So here is a suggestion for anyone putting together a big symposium on information politics, cultural policy, copyright, or media law for the fall: Dig a bit deeper in the scholarly literature. Judge people by the work they do and the ideas they contribute to the discussion rather than simply the number of Google hits or quotes in The New York Times. Such measures are self-fulfilling and ultimately stagnating. If that means passing me over for someone who is not quite as famous but does better work (and that list is long), go for it. You will not be disappointed.

Kudos to Siva for his efforts at lifting these extraordinary thinkers and doers out of the footnotes and onto the stage. Perhaps the other "famous dudes" who share the circuit will do the same.

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April 15, 2005

When Are You Going to Sue the President?

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That's what Siva Vaidhyanathan promised he'd ask RIAA President Cary Sherman at "The Download Debate Strikes Back," a Cornell University debate that due to sheer enthusiasm clocked in at nearly 3 1/2 hours. Did our fearless leader follow through? Find out by watching the freshly posted video here.

Update: I'm now watching; as one audience member says, it's "deeply entertaining" -- in large part because of the sheer magnitude of disingenuousness on display. The audience often giggles and sometimes openly laughs in response to the assertions being made by the industry representatives. Alec French, whose expression throughout is a disturbing, dead-eyed near-sneer, argues with a straight face that DRM benefits consumers because it gives them more choice.

Does Siva indeed address the issue of the potentially infringing music files allegedly transferred onto the First iPod? Yep. Mr. Sherman's answer: "We're only suing uploaders, not downloaders."

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Shades of Burst

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Posted by Alan Wexelblat

Microsoft settled with Burst rather than fight. Now it finds itself facing another small company with another patent that a judge seems to feel is a good enough reason to block Microsoft from using a particular technology in Windows.

In this case, the company is called Alacritech Inc. Their patent covers part of a product they make for "TCP offloading." (I don't claim to understand this.) Microsoft has claimed it is not violating the patent, and the U.S. District Court for the Northern District of California in San Francisco did deny Alacritech's request for a broad injunction. Instead, they've agreed to issue an injunction against Microsoft using the so-called "chimney" technology in Windows Server 2003 or the much-anticipated Longhorn OS revamp.

MS hasn't stated whether it will appeal; my guess is that it will and it will ask the higher court to void or stay the injunction while the issues are argued. If the injunction is removed then MS will probably proceed on the issues. If not, I expect they'll just wave their magic money wand and make it go away.

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Nation Won't Let Nation Touch Its Preciousssss

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Posted by Alan Wexelblat

NTK brings its usual snarky point of view to bear on the BBC's Creative Commons variant, Creative Archive. In particular, the UK-only portion comes in for some sarcasm (enforced how?) and the BFI get kudos for early release of three CA-licensed works.

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Comcast Sued, Studios Settle

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Posted by Alan Wexelblat

Reuters wire story (here on CNET) indicating that a customer has sued Comcast for releasing her information without a court authorization or actually bothering to notify her. Apparently the first she heard about it was when a collection agency called seeking a USD 4,500 judgement.

Also on CNET, John Borland has a report that ESS has settled with the MPAA over ESS' sale of DVD-decoding chips. Terms unclear, but ESS is mouthing all the right kowtowing words, so my guess is they got their asses handed to them and now have to make nice in public.

Meanwhile, Finnish authorities are joining the jihad against file-sharers. Apparent targets are (as in the US) people offering up large numbers of files for sharing.

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Typically, the Major Labels Have Lost Interest

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Posted by Alan Wexelblat

Long NYTimes piece today by Jon Pareles on the vague category "world music" and how it's flourishing in the digital realm after being essentially abandoned by the Cartel. This heading encompasses a huge variety of non-American-pop sounds, including pop from other countries, club music from Europe, new-agey stuff, gospel, drumming, and on and on.

Of course, the best place to get this material isn't in the big box retailers or even local music stores. It's online. Everything from Indian DJs uploading hourlong mixes of their latest club spins to officious institutions like the Smithsonian, which is now offering smithsonianglobalsound.org, a slick and professional presentation including annotations and royalties flowing to musicians around the world.

Pareles does a nice job of turning a paragraph or two on many of the major non-US influences in this area. So if you want to know about Brazilian pop or Congolese soukous you can read a bit. I just wish he had put in a few more URLs. The links are tantalizing but mostly slanted towards commercial services like emusic.

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PyMusique Hackers Back to Crack Napster

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The group of coders that created a DRM-free interface to Apple's iTunes is now doing the same for Napster.

Derek Slater has the scoop in two posts: Napster's WMA DRM Cracked? and The Cracking of Napster WMA DRM. The latter post answers questions about the modus operandi and raison d'etre -- the fruits of Slater's AIM chat interview with one of the coders, Cody Brocious:


Cody and co. are apparently very near an implementation of a utility that will allow people to turn songs acquired through Napster Light (the a la carte service) and Premium (the non-portable subscription service) into unencrypted files. You have to have paid for the songs first to do this circumvention, because the keys have to be retrieved from Napster. This tool will actually circumvent and remove the DRM, rather than recording from the sound card or employing other similar workarounds to create unencrypted files.

[...]

Cody sees his actions as "ethical," irrespective of legality, and he is willing to "fight the DMCA." He wants to be able to play his lawfully acquired Napster music on Linux.

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April 14, 2005

An Un-Funny Onion Story

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Posted by Alan Wexelblat

According to an article in the Madiscon, WI, Capital Times former Onion Editor in Chief Robert Siegel said that Janet Jackson nearly killed The Onion with a threatened lawsuit over a headline: "Dying Boy Gets Wish: To Pork Janet Jackson." The story actually satirized the Make-a-Wish Foundation but Ms. Jackson was apparently not amused by being mentioned in the headline. God is definitely an iron. Now if someone would just drop an anvil on certain parts of the FCC...

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What Happened This Week @ WIPO

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As told by...(emphasis, mine):

Cory Doctorow @ BoingBoing: "A group of over a dozen poor nations (the 'Friends of Development') have presented a long, substantive proposal about how to reform IP in poor nations to encourage development. The US and other rich countries have come back with the ridiculous proposal that the way to help developing nations is to assign them 'buddies' from the developed world who will lend assistance in writing American-style copyright and patent laws in poor countries where they can barely afford to feed and shelter their citizens.

The developing nations are aggressively calling bullshit on this."

Ren Bucholz @ Deep Links (where EFF has been posting rough transcripts of the proceedings: Day 1; Day 2): "We won big this week. First, there is a genuinely substantive policy discussion going on within WIPO about its obligations to be more than an IP-factory and instead explore its capacity as a positive force for the social and economic development of its member states. Not only was the majority of the meeting spent discussing the excellent Friends of Development proposal, but the good guys secured two more meetings to focus on reforming WIPO, defeating those who wanted to limit the process to a single additional meeting. Second, WIPO agreed to open the next two events to the 17 non-accredited non-government organizations (NGOs) that fought hard to attend this first meeting."

South-North development monitor, SUNS: "Another highlight was a presentation by India, another major proponent of the Development Agenda. ...India said that much more needs to be done in WIPO to meet development challenges. In WIPO's terminology, 'development' means increasing a developing country's capacity to provide protection to IPR owners. This is quite the opposite of what developing countries understand when they refer to the 'development dimension.' It added that the FOD paper corrects this misconception, that the development dimension means technical assistance.

India said that the real development imperative is ensuring that the interest of IP owners is not secured at the expense of the users of IP, of consumers at large and of public policy in general. The proposal therefore seeks to incorporate into international IP law and practice what developing countries have been demanding since the TRIPS agreement was foisted on them in 1994."

William New @ IP Watch: "Private and non-profit sector representatives generally lined up on either side of debate between developed and developing countries undertaken in an inter-sessional intergovernmental meeting (IIM) this week. ...A wide range of civil society groups have joined developing countries in pushing for reform of WIPO’s treatment of development issues. ...Industry representatives, meanwhile, generally support the notion in the US proposal that no fundamental transformation of WIPO is necessary. ...One industry representative called the Friends of Development proposal a 'distraction,' and industry groups generally appeared interested in preventing the Friends of Development proposal from gaining too much traction within WIPO."


Bridges Weekly Trade News Digest
: "[The] majority of developing country members, including the groups of African and Asian countries, expressed support for many of the issues raised in the FoD submissions, and stressed the importance of ensuring that the design and implementation of intellectual property rules take into account different countries' respective levels of development -- that one size should not be made to fit all. "

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Do You Know Where That Picture Has Been?

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Posted by Alan Wexelblat

The Australian Actor's Union is, over the objections of the actors, blocking professional actors' participation in what is to be the first intentionally remixable film. The project, titled "Sanctuary," was to be released under a Creative Commons license that would have permitted reuse of images and elements of the film. The union, the Media, Entertainment and Arts Alliance (MEAA), has objected on nominal grounds that the actors could be placed in jeopardy of violating future commercial agreements. Actors are generally required to disclose past work they've done to avoid oddities like the same actor appearing in ads for two competing products. MEAA is concerned that actors' images could appear in material they're not aware of and thus cannot disclose.

In theory, the CC license is only for non-commercial works and the actors seem to be willing to take on the risks, so it's hard for me to understand MEAA's objection. Depressingly, this kind of thing is not unique to Australia - in the US, the Screen Actor's Guild and Equity (theater actor's guild) have imposed restrictions on what their members can do, sometimes over vehement protests from membership.

Comments (3) + TrackBacks (0) | Category: IP Use

April 13, 2005

Tools for Participatory Culture

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Good ideas evidently come in twos:


  • Downhill Battle: "The project is a free, open source set of software tools for watching and distributing high quality, full screen videos over the internet at almost no cost to the publisher (BitTorrent, baby). For viewers, this means you can elegantly and simply subscribe to your friends' channels, a channel for your zipcode, or organizations and watch a truckload of videos that you can't get on regular TV. For videomakers, you'll finally have a publishing tool for all your videos -- it will be as easy as blogging -- just upload your files and you have a channel."
  • Xeni @ BoingBoing: "At present, Google Video allows you to search within an expanding archive of TV content -- sports, docs, and news, mostly. But today, with the launch of the company's Video Upload Program, Google has begun accepting video content from anyone who cares to upload it."

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Love Me, Love My iPod Playlist

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Posted by Alan Wexelblat

Interesting report out of Beki Grinter's lab at Georgia Tech showing that co-workers sharing digital music in the workplace form impressions based on others' musical libraries. What's interesting is not just that this happens, but there's an awareness of this process. People are consciously shaping what they share in an effort to build a favorable portrait of themselves, even with coworkers they don't know and don't interact with that much. As part of a conscious process, music-sharing is acting as part of the community-building practice in the workplace.

Once again, this is an example of user repurposing devices. Apple built in the sharing features so that people in a home setting - a family - could share music off an iPod. I doubt they intended people to set up image-building jukeboxes in the workplace.

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Am I a Journalist?

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Posted by Alan Wexelblat

There's a good conversation going on over in the thread replying to my latest screed on the Apple v Does case. I wanted to opine a bit in response to a comment from Seth Finkelstein. He notes that "Journalistic purpose isn't a get-out-of-court-evidence-free card" and that it's a boundary we as society have to draw. He's not arguing where the boundary should be, but I want to, in part because I think the boundary goes right through the middle of me.

(I want to be crystal clear that I'm speaking in this post solely for myself. Not for anyone else who posts here, nor for any other blogger and certainly not for any organization.)

On the one side of this line, I don't think I'm a journalist. In my mind a journalist is someone who reports on, investigates, publicizes events from the world and makes them known to an interested public in the service of making that public informed. I think we American intellectuals agree that one of the ideals of democracy is action and decision taken by an informed public.

But that's not what I do. What I do is point out things other people have done, or said. I give emphasis and weight to what I find worthy, and I push an overt agenda. On this side of the line what I'm doing is much closer to editorial than reportage. What I strive for is less an informed voice than for a sea of voices distinct within the stream of debate.

I don't much like nor respect the current American journalistic notion of "fairness." There are not always two sides to a debate; sometimes there's one or there are many. Nor should a voice be constrained from calling a spade a spade or labeling bullsh*t as bullsh*t. You may notice that the sources I quote from (Cringely, Aharonian, Geist, etc.) are often strongly opinionated. I may not always agree with them, but I respect them trying to take a stand and expand the boundaries of discussion rather than just regurgitating the latest anonymous AP wire item or White House release.

If that's the image, am I journalist? I'd lean towards "no."

But then we get these emails. People read what I write and send me pointers or information. I like getting these emails and I'll often write entries in response to them. If someone mailed me something and asked me to keep their name out of it, I'd do it. Pretty much without thinking. I was brought up watching the Watergate hearings and I believe in the (at least theoretical) power of the press to balance out the powers and expose the corruption of our institutions. I recognize that the ability to have and protect anonymous sources is essential to that function. I believe that any time a reporter gives up a source we weaken the whole structure.

If that's an aspiration, am I a journalist? I'd lean towards "yes."

So, pax Seth. I recognize you're not trying to argue where to draw that boundary. But I think we bloggers had better have this argument, and damned soon.

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BBC Rips, Mixes Creative Commons

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The BBC/Channel 4/Open University/British Film Institute "creative archive" license I wrote about this past weekend launches today, and the website is now online: Creative Archive License Group.

The license is of course derived from the Creative Commons licenses, and the website looks like a mod-version of the CC site, complete with adorable icons. So the BBC and co. have themselves followed the advice they give in the project tagline: "Find it. Rip it. Mix it. Share it. Come and get it."

Update: In answer to a few queries from Copyfight readers: No, I don't personally have the backstory details on why the BBC and friends chose to create its own license and make this a pilot project -- but you can read about whys a bit here.

Update #2: Much, much more background detail here & here.

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Aharonian on IBM's Patent Hypocrisy

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Posted by Alan Wexelblat

[The entry below is an issue of Greg Aharonian's PATNEWS email newsletter deconstructing IBM's latest patent publicity moves. Reproduced by permission of the author, as it is not posted on the Web. Email patnews at ns1 dot patenting-art dot com for your own subscription.]

Excuse me folks, but I would have appreciated it if one of you had let me known when I accidently tripped through the looking glass and joined Alice in Wonderland. IBM is now backing software patent reform, and expects everyone to forget their past? After all, this is the IBM that


  • in the 1990s, made billions "enforcing" their software patent portfolio, often with old patents

  • in the 1990s, helped undermine some software patent reforms (e.g., backing the impotent SPI)

  • as of 2004, was still filing lots of (software) patents with paltry amounts of prior art submitted, to bulk up its portfolio

But now that IBM has made tons of money playing this game, it doesn't want other companies playing this game, other companies that learned from IBM how to play this game and now are being told not to play IBM's game, but rather to make the mythical big bucks from open source (which seem to flow much to IBM). So while I appreciate the raw business tactics of IBM (i.e., yet another reason to buy their stock), their history cannot be ignored - atonement is necessary.

An article in the Monday New York Times has some inconsistencies. A quote from John Kelly, a senior vice president at IBM (who heads an IP strategy group):

Another development in recent years that pushed IBM to reconsider its patent approach has been the surge in patent filings and lawsuits, including the rise of firms whose only business is to file patent infringement suits, known as "patent trolls".

"It seemed to us the pendulum has swung way too far in the direction of companies blindly chasing patents, and blindly chasing the enforcement of patents", Mr. Kelly said.

Excuse me, but where did these companies learn these tactics except at the feet of IBM patent lawyers? And what company has blindly filed the most software patents? IBM. And what company is still blindly filing the most software patents? IBM. After all, the IBM software patents that issued in 2004 (admittedly filed a few years earlier, maybe before their new strategies were being shaped) where no different than peer averages - about half cited no non-patent prior art, the average cited two or three non-patent art items.

[IBM] supports proposals in the United States to make software patents more difficult to obtain, hoping to help curb the patent and litigate frenzy.

Such support is toooooooooooooooo damn late. In the 1990s, IBM and others frustrated one of the best ways to make software patents more difficult to obtain - the building of a large software prior art archive - when it backed the utterly bogusly fraudulent Software Patent Institute (anyone really remember them anymore?). The SPI wasted a ton on money at the one point in time when a lot of money well spent by experts (not the chuckleheads in Michigan) would have produced a very useful resource not only for the Patent Office but the software industry as well. Ten years has been wasted due to the money flushed down the toilet at the SPI. Does IBM plan to apologize now for their involvement in this waste? And yes, I did resent not having a chance to build such a database in the 1990s with the support of others. I can build a killer database, which is probably why I wasn't given a chance to do so.

Next, from an article in ZDNET Australia:

"There has been a dramatic increase in the number of filings of patents recently, around the world, but particularly in the United States.", Jim Stallings (IBM IP VP) said.

Actually software patent apps steady-stated/linearized a few years ago (as did issuances leveling out at the 20,000 or so a year level) as people did learn their lessons from IBM's filing strategies. Besides, the time to act is before any dramatic increases, like in the 1990s.

"What's happened is it's challenged examiners' ability to inspect history, so the bias has been towards granting the patent.", [Stallings] said.

Funny, IBM wasn't complaining when the bias was in its favor in the 1990s when it was acquiring, and ENFORCING, its patents. (see a critical article in the March 17, 1997 Business Week about IBM's enforcements in Silicon Valley). And it would be easier for examiners to inspect history if they had access to something less pathetic than the Software Patent Institute. Or if IBM lead a public effort to get Congress to stop stealing PTO fees.

"There is a process for after [the patent] is granted to challenge it. It's a very weak process." ...

Actually the PTO has a good record for invalidating bad software patents under reexam. It may be a lengthy process in time, but not a weak process. If I had the money and time, I'd be glad to file lots of ex-parte reexam requests for IBM patents to start the ball rolling.

"We are saying that process needs to be enhanced. It should not not only be the job of the examiner, which is an individual, to grant that patent and to inspect prior art."

Oh slay me through my heart. IBM - please lead the world in reform - do more thorough non-patent prior art searches for all of your patent applications. Don't do what you do, but what you say. What you do is sampled next.

For example, consider U.S. patent 6,877,155 issued to IBM last week (filed in 1998 - a continuation from 1994) titled "System and method for generating target language code utilizing an object oriented code generator". It cites only 4 patents and 2 IBM TDBs, while ignoring all of the object oriented and code generator non-patent prior art from the 1980s and early 1990s. Or consider U.S. patent 6,877,081 issued to IBM, originally filed in February 2001, titled "System and method for managing memory compression transparent to an operating system" - and it cites NO non-patent prior art. Or my favorite, really-needs-to-be searched, U.S. patent 6,874,084 titled "M&A for establishing a secure communication connection between a java application and secure server", filed May 2000, citing, incredibly, only three U.S. patents and NO
non-patent prior art. Look at claim one:

1. A method for creating a secure connection to a server, comprising: within a platform independent applet, initializing a secure socketconnection request via HyperText Transport Protocol (HTTP); using a certificate database to authenticate the server; and creating the secure connection between the platform independent applet and the server using HyperText Transport Protocol Secure (HTTPS) if the server is authenticated, wherein the secure connection between the platform independent applet and the server is created without intervention by a Web browser.

They couldn't find any non-patent prior art prior to 2000 of relevance? IBM - pleaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaase hire me as your searcher.

Stallings called on industry to stop what he calls "bad behavior" by companies who either seek patents for unoriginal work or collect and hoard patents.

Yes, let's abolish all companies who get software patents, oh my my my, on reserving the use of a toilet in an airplane. And much like children, companies exhibiting "bad behavior" learned it from their elders. I wonder from whom for software patents? Is IBM chastizing Microsoft's current practices, the Microsoft that recently hired some sharp patent people from..... IBM? IBM's prior tactics helped create a climate where patent hoarding today is a needed strategy, especially when people start counting IBM's 40,000 or so patents.


"If you are a company and invent patents you should state your intent to use them and there should be a period of time in which you have to use them", he said. "There are companies that are in the business [of] simply collecting and want to sleep on it."

To a few of my clients, this is utterly hilarious. Let's just say I spend a fair amount of time dealing with priority dates in the mid-late 1980s. One solution would be to have an exponentially increasingmaintenance fee, which if nothing else, gives Congress more money to steal (IBM - a public call for Congress to stop stealing PTO fees?).

"We think software patents are important, but they should be granted for things that are new", he added. "We're open to sharing information about the patent itself to prove that it's new. And we think everyone should be held to that standard."

Yes, but are you open to the idea of spending some money to do some decent searching to see if your own patent applictions are really new? And let's be honest, when you are as big and rich as IBM, you can afford to be generous with your disclosures.

IBM's antidote to the problem is to increase the scope of the investigation into 'prior art' associated with software patents.

Why just software patents? How about hardware patents, and the whole patent system. Patent quality is problematic across all fields, and software is creeping into all fields of technology.

Stallings believes that sort of undertaking is something the academic community, volunteers and others are willing to help in.

Up until this suggestion, I would have a) chastized IBM, and b) bought more of their stock. This last suggestion will adversely affect the patents IBM cares more about, than its patents it doesn't care about or the patents of the bad-behaviors. IBM is calculating something I am missing (maybe a tactic aimed at companies like Sun). There is the scenario that if all software IP is eliminated, IBM should still be a dominating and large force in the marketplace. So maybe IBM is suggesting whatever, since whatever the whatever outcome is, IBM still benefits by being number one. What the heck - buy more of their stock.

The suggestion is also a logistics distraction. IBM knows that this collective effort is unnecessary. IBM, on its own (especially with my help :-) can easily help the Patent Offices greatly improve their capabilities to deal with prior art. IBM could have done so anytime in the last 15 years, but didn't. Groups efforts in this case are less efficient (e.g., public troubles dealing with claim interpretation and 102 dates). The odd thing is that this type of effort could easily be extended to all sorts of patents, especially the areas where IBM really cares about. Possibly not in their stockholders interest to back such an approach. As I said, kind of odd thing for them to suggest.

Not surprisingly, IBM is making a sharp distinction with its generosity, which is only being extended to interoperability-type patents of the type that are relevant to communication standards such as those for the Internet. But for the bulk of its patenting/business activities (hardware, application software, ecommerce) it is mostly sticking to its old ways. Again, a good reason to invest in IBM, as long as you don't mind their checkered history with regards to software IP (and in this day and age of corporate crimes, if they worse you can say about a company is that they have a checkered history, I suppose the distaste is washed out by the stock appreciation :-). Besides, interoperability is just as well handled by getting standards committees to pay more attention to their committee-members being honest with their patent intentions.

IBM's history in this area requires some atonements to be made.

Greg Aharonian
Internet Patent News Service

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Whither MusicNet?

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Posted by Alan Wexelblat

Tony Smith reports for The Reg that the labels have dumped their shares in MusicNet. It was bought by Baker Capital, a New York-based private equity firm (or VC as we tend to label them in the US). The details of the deal are private, but one item caught my eye:

The takeover will give [MusicNet] the funding it needs to expand, to license more content and take that content to more big-name retail partners, [MusicNet's PR release] said.

Which, if you read it the way I do, is an oblique way of admitting that the labels were starving the enterprise for cash. Gee, shall we sit back and speculate on why they wouldn't invest in their own downloadable music service? Could it be they didn't want it to succeed because, you know, that might legitimize this whole download business model? Maybe. Or it may be, as Smith notes, that the labels don't want to be in the digital distribution game, preferring to license content to third-party distribution channels such as AOL.

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President Bush: Fair User or Darknet Thief?

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Posted by Jason Schultz

The Herald Tribune has an interesting bit about President Bush's new iPod and where its music comes from:

The president also has an eclectic mix of songs downloaded into his iPod from Mark McKinnon, a biking buddy and his chief media strategist in the 2004 campaign. Among them are "Circle Back" by John Hiatt, "(You're So Square) Baby, I Don't Care" by Joni Mitchell and "My Sharona," the 1970s song by The Knack that Joe Levy, a deputy managing editor in charge of music coverage at Rolling Stone, cheerfully branded "suggestive if not outright filthy" in an interview last week.

As Joe Hall points out, the RIAA has conceded that ripping your own CDs to your iPod isn't illegal, but what about the music of others? Is President Bush "stealing" from artists like The Knack? Maybe the White House Press Corps should ask. Inquiring Minds want to know!

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

SCOTUS Are You Paying Attention to the PSP?

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Posted by Alan Wexelblat

The street really does find its own uses for things. MIT's Tech Review carries a nice piece by Eric Hellweg noting that the PSP (Sony's new PlayStation Portable) has been put to some interesting uses by its early owners. These apparently include Web browsing, IMs, and TiVo-recording playbacks. Dear MGM, could you possibly explain how Sony could have predicted its innovation would be used for these purposes? No, of course you can't. It's absurd on the face of it and we can only hope that the Supremes will see that.

Hellweg's article focuses more on what response Sony may have to these hacks. The PSP is selling well and Sony doesn't want to lose sales by engendering negative publicity. On the other hand, they didn't respond well to Aibo hacking.

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

More Science, More Evidence

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Posted by Alan Wexelblat

A couple weeks ago I caught a bit of comment flak when I argued that the science being done simply does not support the contention that P2P file sharing hurts artists. For those who missed Donna's nod to it, I want to draw more attention to Michael Geist's First Monday piece on peer-to-peer myths.

I admit I'm biased: I like Geist's work, I'm impressed by the diligence he's shown in dogging this issue over the past year, and his study is solidly in agreement with my speculations and intuitions. In particular, he points out that not only is there no evidence that the Canadian recording industry has sustained significant financial losses in recent years due to decreased music sales, there's no evidence that losses have harmed Canadian artists.

Like many researchers, Geist begins with the industry's own numbers - something mainstream media seems incapable of doing - and notes that via simple calculation one can put the lie to industry's vastly exaggerated loss figures. The industry itself seems to be capable of doing better science, but when the answers come out in ways they don't like, they suppress the findings. Geist notes both an Economist story (subscription required) and a Canadian government study supporting this claim of suppression. Shades of tobacco industry and global warming denial.

Geist's report also notes the kind of phenomena that should be analyzed if one wants to understand the change in the music landscape:
- the influence of DVDs
- the rise of big-box retail chains, which carry much smaller inventories of CDs
- economic downturn
- changes in personal habits away from CD-based music and towards other entertainment forms

And so on and so on. Geist is also not hesitant to point out the simple contradictions in industry claims versus actual performance. I think it's worth echoing his conclusions one more time, if only because this is a message that is just not stated frequently or forcefully enough:

downloading is not responsible for the ills of the music industry and Canadian artists have not been harmed by the sales declines that have occurred over the past five years.

Until we can move past this wall of denial and lies I don't know how we'll make any progress.

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

April 12, 2005

News Organizations Speak Out in Apple Case

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Posted by Alan Wexelblat

Hear that whistling sound? That's the sound of heavy artillery arcing overhead. Apple's getting pounded. Hard on the heels of amici from individual journalists, some big names of journalism are laying down some covering fire arguing that the journalists need to be able to keep sources confidential.

Talk about an "A list": the Tribune Co.'s Los Angeles Times, Hearst Newspapers' San Francisco Chronicle, Knight Ridder Inc.'s San Jose Mercury News, The Copley Press Inc.'s San Diego Union-Tribune, Freedom Communications Inc.'s Orange County Register, and The McClatchy Co.'s Bee newspapers in Sacramento, Fresno and Modesto. Oh and the Associated Press.

This is quickly spiraling way out of control. Apple should cut and run as gracefully as possible. This is a company that lives - and can die - on the buzz it receives in the public zeitgeist. There is such a thing as bad publicity, guys, and this is it.

Comments (14) + TrackBacks (0) | Category: Speech

A Torrent of Government Documents

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Posted by Alan Wexelblat

Copyfight reader Thad Anderson notes that his site, outragedmoderates.org, has started receiving increased traffic since being mentioned in Grokster amicus briefs. According to server logs, much of the increased traffic seems to be coming from .gov and even .mil sites. Outragedmoderates hosts a blog and various downloads including PDFs and torrents of (US) government documents of interest. Thad further notes that he's started tallying the number of pages shared over P2P since mid-February. Substantial non-infringing use, anyone?

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

Andrea Dworkin, RIP

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Posted by Alan Wexelblat

Seen first in Susie Bright's blog and today there's a nice AP obit (here on WIRED). Copyfighters may remember her best as the woman who tried (and lost) a case to prevent Hustler from using her name in association with sexually explicit caricatures. I didn't agree with her, or her writings, but I was made to be more thoughtful by having to argue against her attempts to legislate her views. I'll let this quote from Gloria Steinem stand in closing: "In every century, there are a handful of writers who help the human race to evolve. Andrea is one of them."

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

IFPI: The World's "Nicest" Litigators?

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John Kennedy, head of the International Federation of the Phonographic Industry (IFPI), announcing a fresh wave of lawsuits in Europe: "We have been responsible and transparent litigators -- some might say the nicest litigators in the world." (Via CoCo blog.)

Later: More on what these super-cool nice guys are up to, from The Register.

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

April 11, 2005

Bloggers Speak Out in Apple Case: Journalism Is a Verb, Not a Noun

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Big news over @ Deep Links, where a new kind of bloggers' "A-list" has taken shape:


Groups working to protect journalists' press freedoms, the creator of a blog-search tool, weblog publishers, and more than a dozen individual online journalists/bloggers filed a friend-of-the-court brief (PDF) today in Apple v. Does -- the case in which Apple Computer is seeking to unmask online journalists' confidential sources for articles about forthcoming Apple products.

The amici urged the court to adopt "a functional test for the newsgatherers' privilege that does not discriminate between reporters, regardless of the medium in which they publish." They ask the court to "adopt a test that will not impede journalists' use of the Internet to report news by limiting their constitutional protections when they publish there."

The amici are (in alphabetical order):


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EFF Posts Day 1 Notes from WIPO Meetings

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Ren Bucholz @ Deep Links, blogging from behind closed doors at WIPO: "The world's premiere IP-expansionists are considering the radical proposal that more rightsholder protections aren't always in the best interests of developing nations. Several copyfighters have been taking collaborative notes all day inside the cavernous main hall, and you can check out the transcript after the jump."

I've only just skimmed the notes, but it appears that accreditation for the NGOs locked out of the meeting will no longer be a problem: "There's also agreement among regional coordinators on the accreditation of 17 NGOs at the first IIM." Wow. Fantastic news.

It also looks like there was considerable push-back on the notion that WIPO's engagement with development issues should be limited to "technical assistance." Many delegates spoke up in support of the Friends of Development proposal, stressing the critical importance of looking at intellectual property law and policy from a holistic standpoint. There are several refrains of the phrase, "IP should not be considered an end in itself."

Which isn't to suggest that Day 1 was free of the divisiveness that preceded it. The US representative, Paul Salmon, argued that while "more needs to be done" about development issues, that's not WIPO's domain. "WIPO should focus on IP -- the UN does not need any new development agencies."

More to come when I learn more; stay tuned.

Later: IP Watch:


"We don't believe the UN needs another development agency," said the lead US delegate. "We do not support setting up new bodies." He cited the UN Development Program and the UN Conference on Trade and Development as the key UN agencies with specific development mandates.

The developing country proposal specifically argues against development issues being limited to technical assistance and placed solely under the PCIPD.

The United States also argued that WIPO should focus on intellectual property protection, a point countered by several countries such as Egypt that want a broader focus.

The US delegate issued a potential threat to WIPO if it adopts a stronger development focus. "We support WIPO. We would not want to change WIPO in a direction that would diminish that support," he said.

[...]

Another procedural matter at the meeting was the announcement at the outset that seventeen "ad hoc" (not formally recognized by WIPO) non-governmental organisations would be allowed to attend the meeting after all. But the United States said the groups and their representatives should be carefully scrutinized before being allowed to attend any future meetings.

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

Threatening America's Most Cherished Economic Assets

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Posted by Alan Wexelblat

Fordham University's Doron Ben-Atar has a biting piece on Grokster in the April issue of the Chronicle of Higher Education. Ben-Atar calls the Cartel arguments "disingenuous and shortsighted," noting that it is crying poverty on behalf of itself and mega-star artists while fighting tooth and nail against college students and people who live on a few dollars a day.

His basic argument is similar to the "smashing mercury" meme: you can't stop the practice with lawsuits, no matter how many or how big. All you can do in this case is drive the money and innovation offshore. Ben-Atar notes that regimes with far more coercive powers at their disposal have failed to lock up technical innovations, even when they had physical islands at their disposal.

My favorite quote:

What allows the United States to remain the world's center of innovation is cultural experimentation and the free exchange of ideas. The solicitor general's brief betrays ignorance of the contradictory manner in which our own loose implementation of intellectual-property laws turned the United States from an underdeveloped confederation on the periphery of the Atlantic into the world's leading industrial power. The problems we face today are hardly new, and our conversation will be much enriched by a broader historical perspective.

While I agree with Ben-Atar's basic thesis I think it's worth noting that seas are no barrier to the Cartel's jihad (Sharman/KaZaa suits, etc) and that the US is doing its damnedest to export its intellectual property Stalinism around the world through WIPO and bilateral trade agreements.

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Do As I Say, Not As I Do

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img10211466079.jpeg Stussy, a T-shirt company that parodies corporate logos including Chanel, Louis Vuitton, and the KISS logo, is evidently suing FreshJive -- a T-shirt company that has chosen to parody Stussy.

Is there a legitimate case for confusion among purchasers of irony-laden clothing, in distinguishing between a company making fun of Chanel and a company making fun of a company making fun of Chanel?

Is FreshJive in the clear here because it clearly labels its parody clothing line "The Mad Parody Series"?

(Link thanks to Downhill Battle's Nicholas Reville.)

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

April 10, 2005

"Creative Archive" Poised for a Trip Back to the Future

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The Guardian (UK) has the scoop on the new "creative archive" license that will reportedly be launched this Wednesday. Based on the Creative Commons licenses, the creative archive license will enable the BBC, Channel 4, the British Film Institute (BFI), and the Open University to make their archived programs, films, and other materials available on the Internet so that people can freely use them for fresh creative endeavors. The author of the piece, Kate Bulkley, clearly gets what this project is about.

The word "archive" has "an old, dusty feel about it," writes Bulkley -- but "in the world of UK television and film, the impact of archive material is about to take on a new dimension." In other words, this "archive" isn't about preserving the past -- it's about enabling the future.


"We are focusing less on the archive aspect and more on how to enable audiences, especially younger audiences, to whom we think we have a very valuable connection, to develop their creative skills," says Heather Rabbatts, head of education at Channel 4 and its representative with the creative archive licence group.

[...]

"We will trial different packets of content, different genres, clips and full programmes as well, and see what audiences do with it. Will they just download it, or will they edit it up?" [says Ashley Highfield, the BBC's director of new media and technology.]


Will young people sit back and passively consume -- or will they pick up the gauntlet and unleash upon the world a new bounty of Paperbackbeliever-style remixed culture?

The article ends with the inevitable reference to lawyerly concerns -- how will these new-style archivists limit use of the material to the UK? The BBC's Highfield has a lovely answer:


"If we had started at the policing end we'd never have gotten anywhere with this. Where you've got to start from is, how do we make more content available? I believe this can be a win-win. UK licence-fee payers get more access to our content, and having it out there also stimulates various commercial sales markets. I don't believe one has to detrimentally affect the other."

No doubt Jamie Boyle would agree.

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Copyfighter of the Week

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Michael Geist works hard to ensure that Canada does not do as America has done. (Via Cory via Slashdot.)

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April 9, 2005

WIPO Politics, Quantified

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Earlier this week, David Bollier wrote about how the US and other wealthy nations are pushing developing countries to adopt ever-ratcheting intellectual property protection as an end in itself even as they consider for themselves the smarter approach -- judging a specific IP protection by its performance.

As CPTech's Jamie Love observes in The Financial Times, "Regardless of what is said in Delhi, back home wealthy countries are backing open standards for the Internet, open-source software, open-access archives for publicly funded scientific research, public domain databases like the Human Genome Project or the HapMap Project and similar open initiatives." Why? Because there are considerable social and economic benefits to doing so.

Now, in anticipation of next week's historic WIPO Development Agenda meetings (April 11-13), a number of public-interest groups are working together to ensure that all of the delegates have the tools to argue for IP law and policy that accords with their own national best interests. As my EFF colleague Cory Doctorow points out over BoingBoing, this includes a clear-eyed look at what wealthy nations are saying in Geneva while reserving for themselves the luxury of exploring more intelligent approaches at home.

Love has stepped up to bat, providing (1) links to various countries' proposals for interpreting the Development Agenda and (2) a telling "scorecard" of key words in the proposals, providing an at-a-glance analysis of substantive slant.

Compare and contrast the scorecard for the US and the "Friends of Development," which includes Argentina, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela:


USA [Proposal]
All words: 3,059
Abuse: 0
Access: 3
Access to knowledge: 0
Anticompetitive: 0
Consumer: 0
Doha Declaration on the TRIPS: 0
Education: 6
Exceptions: 0
Human Rights: 0
Limitations: 0
Market failure: 0
Monopoly: 0
Open source: 0
Poverty: 0
Public Health: 0

Friends of Development (14 countries) [Proposal]
All words: 12,040
Abuse: 6
Access: 3
Access to knowledge: 7
Anticompetitive: 4
Consumer: 9
Doha Declaration on the TRIPS: 3
Education: 3
Exceptions: 3
Human Rights: 2
Limitations: 4
Market failure: 0
Monopoly: 6
Open source: 1
Poverty: 1
Public Health: 5


Here we can see even more clearly the farce the WIPO Secretariat is carrying out by barring participation in these meetings by groups that are among the best-qualified to be there. Groups that were -- oh, say -- founded to address the issues the US representatives aren't addressing. Bonus headline for the "big media" journalists who ought to be covering this story: "IP Justice Barred From Meetings to Address IP Justice." It would be funny if it weren't true.

Two more of my EFF colleagues, Gwen Hinze and Ren Bucholz, will be blogging these meetings next week over at Deep Links, and I'll be alerting you to new posts here at Copyfight. Stay tuned.

Comments (4) + TrackBacks (0) | Category: Laws and Regulations

Death of the CD?

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Posted by Alan Wexelblat

I'm traveling this week back and forth to Portland. In the airports are a series of shops advertising "$20/2." Reading the fine print shows that you can buy two DVDs or CDs for USD 20. This is, in my mind, a sign of the impending death of the CD.

Look at the difference: with the CD you get some music tracks, maybe some liner notes if you're lucky, and... um, well, that's about it.

Or, for the same $10 you can get a couple hours of video, plus commentary, alternate tracks, possibly multiple languages, maybe a behind-the-scenes or other feature. If you're really jonesing for music you can buy concert DVDs of the same pop stars (these shops have tiny inventory - it's all hit-oriented material). The concerts cover the new songs, and you get to watch your idol perform them (or lip-synch) and get a backstage view or maybe a bonus track with an interview or tourbus footage.

Explain to me again why you'd buy a CD?

Comments (7) + TrackBacks (0) | Category: IP Markets and Monopolies

Still More on the "Is Linking Legal" Question

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Posted by Alan Wexelblat

The question of whether linking is legal continues to be a source of international wrangle. According to The Reg, the BBC have sent a cease-and-desist to a Dutch site that permits users to query British sports results published by the BBC on their Ceefax teletext service.

For whatever reasons, the BBC offers only a limited version of its Ceefax pages on the continent. So Hendrik Noorderhaven created a site (Ceefax.tv) that receives uploads of data published in the UK and permits local users to search it. Noorderhaven claims (with some justification I think) that he's doing neither more nor less than Google does - capture the data source, index it, and respond to queries. The BBC disagrees.

Visiting the site does indeed give one a Google-like feel. It's a bare page with a couple of buttons and a search text box. It notes that Ceefax is a trademark of the BBC. It's hard for me to discern on the face of it how the BBC can complain about this site and not any other search engine.

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

Movie Downloads, Maybe

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Posted by Alan Wexelblat

Under the byline "Faultline," The Reg this week published a lengthy analysis of the potential near-future for the movie-downloading business. The article notes that a number of big names (Sony, MSFT, etc.) have announced their intention to step into this arena, but nobody seems to have a business model that answers all the nagging questions.

Clearly the existing services aren't revolutionizing anything - they're not well-known, they have technical glitches, and none of them seems to be willing to make the kind of serious effort at seamless user experience that I think will be essential to success.

Despite the popularity of DIXV and BitTorrent it's still considerably harder to find and download movies on free nets than it is to find and download music (or porn :). This gives the studios time and a potential opening. Their model doesn't have to be perfect; it just has to be a bit better than the nets and it should succeed.

However, there are serious issues that have to be resolved at the business level. For example, how will downloadable movies respond to the region-coding locks that cripple global DVDs? Will they make such locks obvious and more annoying? Will they try to replicate them? On another front, will downloadable movies be rentals, ownables, or rent-to-own? Will they require pre-selection (a la NetFlix) or will the services try to offer video on demand? Will a service try to appeal to the film buff, offering a large library and back-catalog or will it be hit-oriented, with something like the 100 most popular titles available?

All of these options can be done with current technology - which way any particular service goes is therefore a question of business model and how it wants to position itself in the consumer mind. Unfortunately, none of these models seems like a sure thing, so conservative CEOs are being... well, conservative. Meanwhile, consumers are waiting, still waiting...

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April 8, 2005

News Groups, ISPs Weigh In on Apple v. Does

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...and they don't like what they see [Seattle Times]:


"We thought the order would set a dangerous precedent and make it more difficult for journalists to cover stories," said Lucy Dalglish, executive director of the Reporters Committee and lawyer for the news groups.

"There's a trend right now toward government and private parties using journalists as investigators for their cases."

From the EFF press release:


The [news organizations'] brief [PDF] signers include the Associated Press, the California First Amendment Coalition, the California Newspaper Publishers Association, Copley Press, Freedom Communications, Inc., Hearst Corp., Los Angeles Times, McClatchy Company, San Jose Mercury News, Society of Professional Journalists, Reporters Committee for Freedom of the Press, and the Student Press Law Center.

The US Internet Industry Association and NetCoalition, which represent Internet companies including Internet service providers (ISPs), search engines, portals, and hosting services, also filed a friend-of-the-court brief [PDF]. These trade associations argued that the journalist's email messages are protected under the federal Stored Communications Act. They further contend that if the trial court decision is not reversed, it will place an undue burden on service providers and will severely compromise email users' privacy.

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

Hal Varian on Grokster: It's the size of the pizza, stupid

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Posted by Jason Schultz

Hal Varian, kick-ass economist from UC Berkeley, lays out the case in the New York Times for why keeping Grokster legal could be a win-win for both tech and content companies:

So what should the policy be for new technologies like Grokster? I advocate the Pizza Principle: If you want everybody to get as big a slice as possible, you first have to figure out how to bake as big a pie as possible. Once you have a nice big pie, you can let people fight over how they slice it up.

With respect to technology, the Sony decision got it right: encourage technologies that create more total value. Then, let companies fight to find business models that deliver that value to consumers. They can be awfully creative when they are forced to be.

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

Bollier on US Hypocrisy Regarding IP Policy for Developing Countries

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Public Knowledge co-founder David Bollier has a must-read piece on the current machinations at WIPO and the "irony -- if not hypocrisy -- that there is growing debate within the United States and Europe about the actual value of strict IP rules even as they press poor countries to adopt the West's legal regime":


While the US and Europe mull such changes, they are pressuring India to adopt a strong patent law that sanctions only closed and proprietary models for controlling access to knowledge.

Why such intransigence in the West about relaxing IP rules in order to help the poorest, most needy nations develop? Perhaps because in this time of American triumphalism, the West thinks it can prevail through sheer force. This is apparently the plan at WIPO, which has refused even to allow an open debate on the issue.

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

Weinberger Blogs "Signal or Noise 2"

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Marvelous detailed notes from Berkman Fellow David Weinberger on a discussion about the part "remixing" plays in creativity:


The second Signal to Noise conference begins to the sound of "Sexy Jesus" beating through the Ames Courtroom in Austin Hall at Harvard Law. ...Charlie Nesson begins by saying the aim of law is to create a culture in which we can have freedom and creativity in peace. He talks about copyright's original balance being continuously upset by Congress's one-side expansion of the length of copyright's protection. He points to the expansion of copyright across space as well, beginning with Reagan linking copyright to trade expansion.

More excellent running notes here -- and no doubt much more to come. And keep an eye on John Palfrey's weblog, where he's helpfully tracking coverage.

(Previous Copyfight coverage just below and here.)

Comments (1) | Category: Big Thoughts

Conferences: Signal or Noise, Cyberlaw in the Supreme Court

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Posted by Wendy Seltzer

Today, I'll be at Harvard's Signal or Noise?, joined, I expect, by a cohort of bloggers. The first installment helped kick off the study of music and the law five years ago. Join us to see what we've learned (and not yet learned) since.

Switch coasts in a few weeks for the Stanford Center for Internet & Society's Cyberlaw in the Supreme Court, to hear how the Supreme Court might change the debate with its ruling in MGM v. Grokster.

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

April 7, 2005

How Not to Get Fired for Blogging

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EFF's Annalee Newitz in our latest white paper: "Blogs are like personal telephone calls crossed with newspapers. They're the perfect tool for sharing your favorite chocolate mousse recipe with friends -- or for upholding the basic tenets of democracy by letting the public know that a corrupt government official has been paying off your boss."

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The Supreme Court Rules

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In the non-literal sense, this time: it has refused to hear Chamberlain v. Skylink, letting stand the appellate court decision that barred Chamberlain from using the DMCA to short-circuit competition.

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

Linking? Nein!

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Posted by Alan Wexelblat

Under the depressing headline "GERMAN CT. RULES COPYRIGHT TRUMPS FREEDOM OF THE PRESS" Michael Geist notes a report by heise online on its first-round court defeat.

As I mentioned at the beginning of March, the site heise.de was sued over an article that contained a link to a site. The targeted site provided information and (two clicks later) downloads for software that allows consumers to copy DVDs. The Munich court found that heise had deliberately violated German copyright law by providing assistance - essentially contributory copyright infringement.

In a small glimmer of hope, the court did find that it was not permissible to block publication of the article entirely, which the music industry had wanted. Heise has not yet stated whether it will appeal.

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

Congratulations, EFF Pioneer Award Winners!

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EFF (hyperlinks, mine): "This year's winners, nominated by the public and selected by a panel of independent judges, are entrepreneur and EFF co-founder Mitch Kapor, Princeton University computer science professor Edward Felten, and human rights activist Patrick Ball."

Update:Although they are called EFF Pioneer Awards, EFF does not pick the Pioneer Award winners; they are, as we noted in the press release, nominated by the public and chosen by an independent panel of judges. Everyone except for the current EFF staff and the board is eligible -- meaning that if some day, you want to nominate Robin Gross of IP Justice, you are free to do so -- even if she once worked for EFF. This explains why Mitch Kapor won a very well-deserved EFF Pioneer Award this year. The public nominated him and the independent panel voted for him -- and we couldn't be more proud.

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

What the Entertainment Industry Really Wants to Do to the Internet

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CoCo blog has what European Digital Rights says is the wish list by the European international versions of the MPAA and RIAA (the MPA and IFPI) for Internet service providers: Movie & Music Industry Proposals ISP Self-Regulation. Evidently, they want ISPs to:


  • "remove references and links to sites or services that do not respect the copyrights of rights holders"
  • "require subscribers to consent in advance to the disclosure of their identity in response to a reasonable complaint of intellectual property infringement by an established right holder defence organisation or by right holder(s) whose intellectual property is being infringed"
  • terminate contracts of recidivist
  • implement instant messaging to communicate with infringers
  • implement filtering technologies to block sites that are "substantially dedicated to illegal file sharing or download services"
  • voluntarily store data for copyright enforcement

Did I say "wish list"? Sorry; that would be "hit list."

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

RFC on Capitol Records v. Naxos

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Marty Schwimmer and Kevin Heller are experimenting with Wiki-enabled "open source" analysis of the NY court ruling earlier this week that bit off (another) chunk of the public domain. The ruling is already sparking in-depth interrogation -- see, for example, Joe Gratz's N.Y.: Pre-1972 Sound Recordings Under Copyright Until 2067 and Ernie Miller's Distribution Loophole in Capital Records v. Naxos? -- and there's plenty more food for the thinking.

Join in the fun @ Between Lawyers.

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April 6, 2005

Grokster Transcript Available

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Posted by Ernest Miller

Read all 55-pages of the Grokster oral argument transcript here: Grokster Oral Argument [PDF].

Courtesy of The Challenge of P2P, the blog for Prof. Pam Samuelson's "Peer-to-Peer (P2P) Technology: Legal and Policy Challenges" class at Berkeley this semester.

[UPDATE - April 7, 2005]

An easier-to-read format of the Grokster transcript: Transcript of MGM vs. Grokster oral arguments.

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WIPO Spins Lockout of Civil Society Groups

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In advance of the controversial WIPO Development Agenda meetings next week, David Tannenbaum provides excellent preemptive spin-control on WIPO's preemptive spin (hyperlink, mine):


This media advisory suggests that the General Assembly language binds the secretariat to close out civil society NGOs, but the restrictive gloss on this language is a creation of the secretariat alone.

Previous relevant Copyfight coverage here and here.

Update: More preemptive spin control reported @ IP Watch: The Friends of Development detail their proposals for WIPO reform and rebut US representatives' counter-proposal aimed at minimizing/containing the Development Agenda: "[The] Friends of Development emphasized their view that 'the development dimension of intellectual property is not the same thing as technical assistance.' They affirmed that they attach importance 'to the role of intellectual property in the path towards development' and stressed their belief that 'WIPO could have a new role…if it incorporates the development dimension into its work.'"

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A Common Law Expansion of Copyright?

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Kevin Heller on Capitol Records v. Naxos of America, the New York ruling that has everyone worried about yet another expansion of copyright: "[The decision finds] that common law in New York 'protects ownership interests in sound recordings made before 1972 that are not covered by the federal copyright act.' ...If memory serves, this case would affect the outcome of the Grey Album scenario were that case litigated."

Ernie Miller, responding to the Court's assertion that the case "will have significant ramifications for the music recording industry, as well as these litigants": "Just the music industry? How about significant ramifications for the public? Seems like the Court forgot why it is called the public domain."

Via Copyfight readers, AP coverage and an infinitely more detailed New York Law Journal article.

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Cruel Intentions

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Marty Schwimmer digs deeper into the gripe site decision [PDF] that has Paul Levy, Michael Froomkin, and Fred von Lohmann so excited about the freedom to publicly criticize a company even when it has a well-guarded trademark. In short, Marty believes it's significant that the ACPA claims persist, and that the case may eventually turn on whether the griper had the intention not only of criticizing but also extorting -- a bad faith intent to profit from making Bosley Medical Institute, well, look bad:


There is a lengthy discussion of trademark infringement and the Court held that Kremer did not make commercial use of Bosley's marks (and it dismissed the infringement cause). I don't think this is surprising (but am surprised that others don't think its surprising).

What's interesting (to me) is the ACPA discussion (p. 3988-93). The Ninth Circuit notes that, unlike infringement, there is no commercial use requirement. It also notes that:


Allowing a cybersquatter to register a domain name with a bad faith intent to profit but get around the law by making noncommercial use of the mark would run counter to the purpose of the Act.

Determining that the District Court erred by imposing a commercial use requirement, the Circuit Court remanded the ACPA claim and if you read between the lines, it appears to direct Bosley to focus on the 'extortion' angle to see if that proves bad intent.

I've surveyed the blogosphere and this decision is being characterized as a victory for 'gripe sites.' (See here, here, and here). With regard to the infringement analysis, it is.

However, I think the fact that the ACPA count survived is important. It is hard to prove intent, and it is hard to reveal purposeful hostility masquerading as gratuitous hostility. But this case takes one of the hardest ACPA cases to win and suggests a way.

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

April 5, 2005

Mark Cuban on the beginning of the end of CDs

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Posted by Jason Schultz

Mark Cuban is fast approaching alpha-geek status. Check out his recent post on why he can't and won't buy CDs anymore:

MP3 players are changing peoples listening habits. We don’t carry folders filled with CDs anymore. We carry our library in our MP3 players. We don’t listen to CDs. We listen to playlists that we adjust all the time. We don’t burn CDs anymore, it’s too time consuming. We copy all our music to our MP3 players so it’s all available at our fingertips.

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Fred von Lohmann: Noncommercial Gripesites Rejoice!

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Fred weighs in on Bosley Medical Institute v. Kremer:


This is a very big deal (props to Public Citizen, which defended the case), as I'd say the opinion's rationale applies with equal force to the content, as well as the domain name, of a website. If that's right, then noncommercial critics are completely off the hook with respect to federal trademark and dilution claims. Free pass. Scott free.

Hmmm...Inquiring minds want to know: what does Marty think?

Update (April 6): Marty responds: "A guy named Kremer gets a hair transplant. Stop me if you heard this one."

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Chronicle of a Birth Told

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And with that belabored allusion to Gabriel Garcia Marquez, I give you the story of the conference that begat the Future of Music Coalition. The conference, hosted by the Berkman Center and featuring Kembrew McLeod and Wendy Seltzer among others, will have its second incarnation this Friday (hyperlinks, mine):


It was back in February 2000 when Jenny and Kristin took the overnight train to Boston to attend the first Signal or Noise conference. When they arrived they wrote "I know Ben Morgan" on their nametags, which they hoped would assist them in meeting two people they only knew from their postings on Ben's Musictech email list: Brian Zisk and Walter McDonough.

Brian was easy to find. In attendance with his father, he cheerfully introduced himself and we had a lively discussion about his webcasting company Green Witch. But it wasn't until the end of the first round of panelist presentations that we figured out who Walter was. After what sounded like informed statements from various record industry folks, moderator Charles Nesson looked around the room for questions from the audience. A tall redhead asked for the microphone, who then delivered a blistering critique. Then, instead of dismissing his argument, Professor Nesson invited this provocateur to JOIN the panel, where he then proceeded to shred the other panelists to pieces with his legal knowledge. It was none other than Walter McDonough.


The driving force behind the conference was Glenn Otis Brown, who went on to drive another force.

Registration is still open; if you're in the Boston area, check it out. Who knows what will come of it?

Update: More about the conference -- and Glenn -- from Derek Slater.

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ICANN ".travel" Scandal

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Posted by Ernest Miller

Many have forgotten about the procedural and regulatory abomination that is ICANN. But the folks at ICANN Watch have not, and they report yet another scandal regarding domain names. In this case, the bogus procedures that have allowed the international airline cartel (IATA) to take over the ".travel" domain by proxy (ICANN reveals ".travel" sponsor is a front).

Read the whole thing and wonder why ICANN is still in charge of the domain name system.

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EU Parliament Gives EU Council a Free Pass on Software Patents Debate "Glitch"

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You remember Floris Florian Mueller of NoSoftwarePatents.com complaining about the EU Council's thoroughly perplexing decision to make the EU Software Patents Directive an "A" (priority) discussion item? No? Here's a refresher:


"A wannabe Napoleon who heads the Commission and a Microsoft puppet that runs the DG (directorate general) in charge have decided to negate democracy."

Well, it looks like the wannabe Napoleon and the Microsoft puppet have officially been pardoned for their democracy-negating activities. Reports Heise Online:

The European Parliament has dropped its objections to the way the "common position" of the EU Council on the planned Directive on the Patentability of "Computer-implemented Inventions" was adopted. The Legal Committee of the European Parliament had initially insisted on examining the protocols of the decisive meeting of the Council of Ministers at the beginning of March. ...According to a parliamentary spokesman, the Legal Committee had now decided, however, no longer to take into account the "small irrelevant errors" committed.

That's how you make molehills out of mountains -- wait a little while, then proceed as if nothing happened.

Next up: more lobbying as the EU Parliament hashes out its objections to the Software Patent Directive within the confines of what CoCo blog calls "the restrictive procedure of the second reading."

Previous Copyfight coverage: European Council Gives Software Patents an "A"; EU Software Patents Moving Forward; Ding Dong, the EU Software Patents....

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Relocate the Delocator

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If you can't beat the lawyers, route around them (or something like that): Cory and Carrie demonstrate how you can stop Starbucks from pushing the Starbucks Delocator out of Google's neighborhood: publish a link to the Delocator using the words, "Starbucks Delocator." (Or -- why not? -- do it twice.)

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I'm Not Only a Member of the Hair Club for Men, I'm Also...

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...entitled to fair use under the Lanham Act. hair.jpg

Big news from yesterday: the Ninth Circuit ruling (PDF) that a hair "restoration" company can't use trademark law to strip a domain name from an unhappy customer who set up a website to criticize the company. The Court had not a little bit of fun with language in the opinion:


Defendant Michael Kremer was dissatisfied with the hair restoration services provided to him by the Bosley Medical 3978 BOSLEY MEDICAL INSTITUTE v. KREMER Institute, Inc. In a bald-faced effort to get even, Kremer started a website at www.BosleyMedical.com, which, to put it mildly, was uncomplimentary of the Bosley Medical Institute. The problem is that "Bosley Medical" is the registered trademark of the Bosley Medical Institute, Inc., which brought suit against Kremer for trademark infringement and like claims. Kremer argues that noncommercial use of the mark is not actionable as infringement under the Lanham Act. Bosley responds that Kremer is splitting hairs.

Like the district court, we agree with Kremer. We hold today that the noncommercial use of a trademark as the domain name of a website — the subject of which is consumer commentary about the products and services represented by the mark — does not constitute infringement under the Lanham Act.

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April 4, 2005

Starbucks Delocator, Delocated

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delocator.gif
A Stay Free Daily post & comments tell the sad story of Starbucks lawyers pushing an anti-Starbucks website, The Delocator, out of Google's neighborhood. From the post:


[When you] visit the site, enter your zip code, and the site does a search. On the right side of the page displays all the Starbucks stores on the area. On the left are local cafes that visitors to the site have entered manually.

...and the comments:

Carrie McClaren: "This is a great idea, but they should have put 'Starbucks' in the website name...I assume they chose not to do that to avoid legal threats from Starbucks, but what's the point of doing a site like this if the intended audience doesn't see it?"

One of the site creators: "[R]egarding the Starbucks tags/branding, per our exhibition agreement we were unable use the word Starbucks anywhere. Their legal department would not ok the exhibition. The project's original title was 'Starbucks Delocator.'"


Later: Downhill Battle's Nicholas Reville, via email: "Correct me if I'm wrong, but I think if enough people link to it with the phrase: 'Starbucks Delocator' or just 'Starbucks,' it might be able to show up in Google for Starbucks even if it doesn't have the words 'Starbucks' on the page itself. So... why not put out a call for people to post links to the delocator that are called 'Starbucks'? or 'Starbucks Delocator'?

Later #2: Go Carrie; Go Cory!

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Gearing Up for "World IP Day"

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The Bangkok Post provides a provocative "how-to" piece, Entertaining Ideas of Greed [hyperlinks and emphasis, mine]:


Kamal Idris, the head of WIPO, has a glowing tribute to intellectual property idealism. "Our goal for World Intellectual Property Day and beyond should be to encourage young people everywhere to recognize... the artist within themselves. From the classrooms of today will come the entrepreneurs, the scientists, the designers, the artists of tomorrow. WIPO is committed to promoting a culture in which young people can realize this potential.''

Excellent words. WIPO itself is not quite that open or open-minded. At two WIPO meetings this month, all 182 member nations will discuss intellectual property enforcement and its effect on development, and on developing countries. Mr Idris and his board decided to bar participation by the top experts in the field: public interest groups. They are not permanently accredited by WIPO, and apparently it is a full-time job to observe the UN body if you want to give your opinion about its work. [Ed.: this isn't quite correct, but unfortunately close.]

[...]

The always puckish Need To Know Internet journal suggests those who support copyright hold book-burning parties on April 26. No, not that kind; "burn" some of the tens of thousands of wonderful books out of copyright on to CDs so others can read them for free. Get some of the most popular at Project Gutenberg.

Get on the Internet and visit two new websites. At Peer Impact, you can download music and get discounts if you let other people download from you. Ourmedia.org actually encourages Mr Idris' young people to recognise the artist within themselves by letting them post their music, videos, writings and other intellectual property to let others share it.

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April 2, 2005

Welcome, Walt!

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True cause for celebration: Walt Crawford of the consistently excellent Cites & Insights has joined the blogosphere.

For a taste of Crawford in action, here he is analyzing the FCC's reply brief in ALA v. FCC -- that is, the legal challenge to the broadcast flag technology mandate:


I've gone through the 45-page FCC response (also available from the EFF site). All I see is a series of "Did not!" responses. The brief includes demonstrably false statements, assumes that the bluff issued by Viacom and others is legitimate and the basis for dramatically overstepping the FCC's bounds, and nonsensically claims that the broadcast flag "protect[s] the integrity of broadcast digital transmissions" although it has nothing to do with broadcast quality or integrity. The brief is as breathtaking in its assertion of boundless FCC power as it is dulling in its lack of legitimate evidence or serious counter-argument.

Very exciting.

In other bloggy news, three developments I wanted to blog about this past week but couldn't (Grokster + EFFector + extremely silly EFFector in one week = no time):


  • In case you were wondering, Between Lawyers is really fun -- not much of a surprise, especially considering that we have the witty, intelligent Denise and Marty combining (what else but) wit and intelligence.
  • As previously noted, the Induce Act Blog is covering much more than the Induce Act (which shall return in a form we can't now predict), and doing so beautifully. It can only get better with the smart addition of EEJD's Brandon Rash.
  • Rik Lambers of CoCo Blog has unveiled his version of a "blink" or "clip": the "jot" -- meaning we'll get even more of CoCo's picks, in smaller bytes.

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

April 1, 2005

No Joke: Grimmelmann Live-Blogs 'Global Flow of Information' Conference

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@ LawMeme. More about the conference, which features John Palfrey, Siva Vaidhynathan, and Michael Froomkin, among others, here.

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Looks Like Cory's Gotta Call Fred Again

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There's another totally-out-of-bounds BoingBoing parody. A post by Snory Hacktorow:


My call for sanity regarding the fair use of the brick
MINEBRICKMINE.JPG Bricks have many legitimate uses, including shelter, crowd dispersal, and brief grandstanding against Israeli tanks, so why all the focus on the very few which are heaved through shop windows to allow for the sharing of items? I paid for that brick, I'm not interested in being told what to do with it.

My 4:40 am shouty talk at my sock-covered fist on the Greyhound 234 westbound, transcribed for campus dissemination and worship.

Link (Thanks to Goonsnargle, the elf that lives in my hair and tells me which people are demons)


Later: It's been cease-and-desisted:

Boring Boring grinds jackboot in face of some other stupid site

Actually, the previous post gave us an idea, so -- after the cagey use of search and replace (which we just learned about last week over at Sony's Lifehacker) -- we forwarded Mr. von Lohmann's letter to this guy. (Thanks, Cory!)

posted by Chris James at 3:40:42 AM permalink | blogs' comments

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Siva Vaidhyanathan Fires Ann Bartow

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Siva shares the sad news: "I have asked Ann Bartow to refrain from posting any more to Sivacracy.net. Basically, she was detracting from the mission of this blog: the pure and unadulterated promotion of me, Siva Vaidhyanathan."

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Doctorow Issues DMCA Takedown for BoingBoing Parody Site

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Ernest Miller:


He can dish it out, but he can't take it.

Well-known "copyfighter" and sci-fi novelist Cory Doctorow can sure complain when the MPAA and RIAA try to enforce their members' copyrights, but the instant someone infringes on Cory's copyrights and trademarks - watch out! - the threatening legal letters and lawsuits start flying. Case in point, the BoingBoing parody site BoringBoring. [...]


Dear Sir or Madam,

I am legal counsel for and write on behalf of celebrated science fiction author Cory Doctorow and the award-winning website BoingBoing. We have recently learned that your organization, BoringBoring, is violating Mr. Doctorow and BoingBoing's copyrights by posting on your site, www.boringboring.org, certain copyrighted content from www.boingboing.net.


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