Donna Wentworth
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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

a Typical Joe
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Monthly Archives

May 31, 2005


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Posted by Alan Wexelblat

PostSecret is either a great hoax or a fantastic exercise in appropriated media and human sociology. People mail in secrets anonymously on postcards. Nominally the cards are homemade, but many of the posted images are commercial and reused. Many of the texts are also cut-and-pasted, ransom-note style. The taking and use of others' images and typography to convey what are supposed to be intensely personal messages is fascinating postmodern commentary. I do think it's slightly disappointing that it's run out of a single centralized blog; imagine PostSecret as done over a P2P network!

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

May 28, 2005

Googlezon Deconstructed

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Over at FindLaw, Julie Hilden has taken it upon herself to explore the theoretical implications of the much-discussed flash movie that predicts "Googlezon" -- that is, a future where Google and Amazon have merged, joining search capability with detailed, personalized knowledge of the user. Hilden argues that if something like Googlezon materializes, the current fuss over copyright infringement through filesharing will be very small potatoes indeed.

[As] I will explain in this column, it's very possible that equally - if not more - important Internet copyright issues may be on the horizon. Moreover, these issues may relate not only to how we get our entertainment, but also to how we get our news.

The issues are as simple and fundamental as they are troubling: Exactly how much content may be copied on the Internet - and of what kind -- before copyright is infringed? And more deeply, when is content "copied" in the first place when it comes to the Internet? Does the fact that the copying is done via a machine editor - not a human editor - make a difference?

Hilden suggests that if Googlezon's bots copy the best stuff from the Net, personalize and deliver it to you, it could create a compilation so attractive, you'd be tempted to give up ordinary newspapers and their online outposts altogether (many would argue we're well on our way). The question is, at what point will the bots become so good at what they do that a judge will feel compelled to protect the original sources?

Making compilations like this illegal, as copyright infringement, would challenge the status of a lot of traditional research - such as virtually any doctoral thesis, nonfiction book, academic paper, and on and on. For this reason, I agree with [Googlezon flash movie creators] Sloan and Taylor that the Supreme Court would likely rule for Googlezon - not "old media" - in its Supreme Court case.

But it's also possible the Court - or, ultimately Congress, in the wake of the Court's decision - would rework copyright in a way that better fits the Internet.

Like the flash piece, an intriguing thought experiment. Read the whole thing.

Previous related reading here @ Copyfight: Alan's Google's Scan Plan Draws Critics.

Update: More food for thought on Hilden's piece over @ Importance Of..., where Ernie Miller presses once more for the logic of focusing on distribution rights, not copyrights, for digital works:

Copies, copies, copies. That is sooo 20th century. Computers make copies, that is what they do. I imagine, but don't know the technical details, that Google's ginormous database of books has numerous complete copies of the works stored, and not just as backups, either. So what?

We can waste all our time trying to figure out how many angels dance on the head of a pin as develop archane rules on when copies are made and whether those particular copies violate copyright, or we can think about information as a flow, as a transfer, as a distribution.

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

What He Said

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Posted by

I second Ernie. Now is NOT the time to give up fighting the broadcast flag.

Here's a refreshingly plainspoken explanation of why the MPAA won't stop pushing for it, from a Slashdotter who gets it:

The broadcast flag is just another tool devised by the MPAA to help insure that if people want to watch something beyond the original air-date, they'll have to go out and buy it.

The broadcast flag isn't about bringing media to the masses, it's about bringing media to the masses, grabbing them by the grapes and squeezing every penny they possibly can from the public.

Fact is, by the time a production makes it to broadcast television, it's made all the money it's going to make. Companies purchase advertising time, the production houses make some more money. At this time, it doesn't make one bit of difference whether someone tapes or doesn't tape a movie from the television, and the funny thing is, that the taping of movies from broadcast or cable television is protected under fair-use.

By insisting that there be a broadcast flag, the MPAA is basically saying, "We don't care about your right to fair-use, we want your money and we'll get it, one way or another."

It's not so much that they don't care about fair use. They simply want to sell our rights back to us at a premium. This time, they'll be called "features."

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

May 27, 2005

Broadcast Flag Rears Its Ugly Head in DTV Transition Hearings

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Posted by Ernest Miller

I don't normally cross-post, but...

As I predicted (New Bill to Mandate DTV Transition by Jan 2009), there are several Congressmembers pushing for the Broadcast Flag in the DTV transition bill that is being debated in Congress. According to, "Three particular points emerged at the hearing--set-top subsidies, the broadcast flag and predicating a deadline on the budget deficit" (Subsidies Are Sticky Point in DTV Draft Bill):

Several members indicated they'd seek a broadcast flag in any final DTV transition bill, including Reps. Jay Inslee (D-Wash.), Edolphus Towns (D-N.Y.), Elliot Engel (D-N.Y.) and Marsha Blackburn (R-Tenn.). No one actually came out against the flag. [emphasis added]
There is a lot of talk about the subsidy, but who cares? Subsidies will only matter for a couple of years, the changes the Broadcast Flag will implement will last essentially forever. Doesn't any of these representatives realize what a major change they would be making in our technology/innovation environment?
Rep. Elliot Engel, (D-N.Y.): "This is really a budget bill, not a telecom policy bill."
If you add the Broadcast Flag, it becomes a copyright/innovation/technology policy bill.

Now is not the time to give up on the Broadcast Flag! We need to explain to these Congressmembers that people aren't going to appreciate the change to DTV when they can't record a video for a friend who is out of town, or take copies of the kid's favorite shows to Grandma's when she babysits.

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

Abusing Amazon Images

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Posted by Alan Wexelblat

A few months back I posted about AmazType, a site that was making potentially unfair use of images. Now comes's guide to abusing Amazon's images, based on the discovery that the URL used to access the image controls a number of features of what the end user sees, such as size and the presence/absence of a discount "button."

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

Free Culture RFC

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Posted by

Bravo to the students at Free Culture, who have just reached an important milestone: incorporation. As part of the process, they're asking the Internet community for advice on a number of key organizational decisions, while explaining the important role the student movement plays in the battle for a culture in which we can all be active participants:

Only a handful of students want to be activists, but millions of young people want to know more about why Napster got shut down, why their friends are getting sued, why they can share and remix some things and not others, why the TV news talks about celebrity trials rather than the issues in their own communities, how new technologies offer people new ways to participate in their culture and society (and why some people want to stop it), how this process has played out historically, why people can't afford medicines even though they’re cheaply produced, and so on.

These issues are in the news, and in our conversations, every day. We, as a generation, want to know about them. And inevitably, once we learn a bit, we want to stand up for what we see as right, and stand up against what we see as wrong. To bring young people into these discussions, I'm convinced, is at the heart of our mission.

We're incredibly lucky to have these smart, energetic, inspired young people talking face-to-face with other students about these issues. Check out Gavin Baker's post and lend a hand.

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

May 26, 2005

Blankenhorn to Hollywood: Stop the Madness!

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Posted by Ernest Miller

Brother Dana Blankenhorn throws down the gauntlet in the copyfight; you're either for us or against us (The Way of Hollywood is Madness).

Let's be clear. Al Qaeda and the forces supporting them are Luddites. They aim to take their part of the world back to the Middle Ages. And they aim to take us down to the Middle Ages with them.

The Internet is the greatest weapon we have against tyranny in all its forms, especially this form. Any move against it is a move on behalf of the enemy.

So where do we go from here? I believe that if we don't move toward compromise on copyright we're pulling our own virtual Twin Towers down over our own heads, just to keep the enemy from doing it first.

Strong words.

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

Point Counter... Oh Screw It

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Posted by Alan Wexelblat

CNET has a point-counterpoint between Dan Glickman, head of the MPAA, and Jim Burger, media attorney for the law firm of Dow, Lohnes & Albertson on the topic of the broadcast flag.

Of course I'm a completely biased reader, so there's not much point in my commenting on this. In my eyes, Burger does a good job of laying out the realities of why the flag is an absurd overreach of control. Glickman falls back on hyperbole and fear, telling us that without the flag we'll lose broadcast television. Someone send him a link to Pesce's piece, please? Glickman's not as much fun to bash as Valenti - at least not until he reaches equal levels of rhetorical excess - but he doesn't seem capable of conceiving of even the slightest evolution in business models.

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

PWN3D by the Feds

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Posted by Alan Wexelblat

Want to know what it looks like after you've been pwn3d by the feds? Check out "Elite Torrents."

Andrew Zangrilli over at blogbook has a piece commenting on the fact that this shutdown was part of a bigger anti-torrent sweep carried out by the FBI and US Customs (!) Last October I wrote a brief note indicating that the Dept. of Homeland Security (which now controls Customs) has an "intellectual property rights center." I'm guessing this originated out of there.

CNN Money has a particularly slanted article on the raid, repeatedly using Cartel language and ominous phrases like "It's not known how much Internet piracy costs US companies every year" (hint: NONE. Do your damned background research, Ms. Crawford!).

Better coverage at the LA Times, where Jon Healey points out that the search function announced for BitTorrent will obviate the need for "tracker" sites like elitetorrents, which have been prime targets in the Cartel crackdown.

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

May 25, 2005

Where the Rubber Meets the Roadcasting

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Posted by Jason Schultz

Some enterprising students at Carnegie Mellon's Human Computer Interaction Institute have put together an interesting project called Roadcasting, which appears to allow people to broadcast XML-defined playlists over Wifi from their car-based MP3 players.

While supposedly backed by "[t]he research and development arm of a major automaker," it will be interesting to see how such innovations are received. Our current copyright system has nothing to accommodate such personal retransmission capabilities. Are these reproductions, distributions, or public performances? Are they fair use? Is this essentially the same as turning up your car stereo super-loud with the windows down, or is it like running your own radio station?

Interestingly, the system is currently limited to streaming, which makes it almost identical to Apple iTunes' "sharing" feature. It will be interesting to see the RIAA's reaction. Monitoring P2P networks is one thing; spying on us in our cars and on our daily commutes would be something quite different.

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

New Terms of ART

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Eric Sinrod for USA Today [hyperlink, mine]: "[The] first judge who has been called upon to rule on the issue has determined that the ART Act does not create copyright infringement liability for simply making copyrighted works available to the public without evidence of true distribution of those works."

Update: Check out Ernie Miller's previous coverage, More on "Making Available" and Patel's Napster Ruling.

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

The Economist Rails on Flawed BSA Piracy Study

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Posted by Jason Schultz

If you have a subscription to The Economist, make sure to check out their great critique of the BSA's latest software piracy numbers (BSA or just BS?; Software piracy):

IT SOUNDS too bad to be true; but, then, it might not be true. Up to 35% of all PC software installed in 2004 was pirated, resulting in a staggering $33 billion loss to the industry, according to an annual study released this week by the Business Software Alliance (BSA), a trade association and lobby group.

Such jaw-dropping figures are regularly cited in government documents and used to justify new laws and tough penalties for pirates-this month in Britain, for example, two people convicted of piracy got lengthy prison sentences, even though they had not sought to earn money. The BSA provided its data. The judge chose to describe the effects of piracy as nothing less than "catastrophic".

But while the losses due to software copyright violations are large and serious, the crime is certainly not as costly as the BSA portrays. The association's figures rely on sample data that may not be representative, assumptions about the average amount of software on PCs and, for some countries, guesses rather than hard data. Moreover, the figures are presented in an exaggerated way by the BSA and International Data Corporation (IDC), a research firm that conducts the study. They dubiously presume that each piece of software pirated equals a direct loss of revenue to software firms.

To derive its piracy rate, IDC estimates the average amount of software that is installed on a PC per country, using data from surveys, interviews and other studies. That figure is then reduced by the known quantity of software sold per country-a calculation in which IDC specialises. The result: a (supposed) amount of piracy per country. Multiplying that figure by the revenue from legitimate sales thus yields the retail value of the unpaid-for software. This, IDC and BSA claim, equals the amount of lost revenue.

Comments (31) + TrackBacks (0) | Category: IP Markets and Monopolies

May 24, 2005

Google's Scan Plan Draws Critics

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Posted by Alan Wexelblat

As I noted yesterday, Google's plan to produce a massive digital library is likely to arouse some ire. Today's AP story (here on tells of objections from a group of academic publishers.

The association of nonprofit publishers is seeking information about how Google plans to protect copyrights, and is raising concerns because two publishers who have asked to have their material excluded from the project have not received any response from Google.

The issue is complicated, since Google's plans include scanning both works in and out of copyright, but only showing bibliographic information and excerpts from copyrighted works. Google also seems to say that copyright holders can have their works excluded from the project, but has not apparently responded to actual requests to do so.

My guess is that this will likely be settled amicably in a short time but it highlights how uncertain the entire area has become and perhaps gives a preview of the troubles that may occur when for-profit publishers become involved.

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

May 23, 2005

Public Photography Becoming "Illegal"

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Posted by Alan Wexelblat

Pull out your camera on a sidewalk today in America and you're likely to run afoul of self-appointed enforcers. So reports Susan Llewelyn Leach for The Christian Science Monitor. According to Leach, the National Press Photographers Association has been informally tracking incidents in which security officials, police officers, and others have taken an overbroad meaning of what constitutes "suspicious activity."

Traditional law still permits photojournalists the same rights as the general public - stand in a public place and you can take a picture of anything the naked eye can see. However, newer laws such as the Patriot Act, and agency regulations such as the TSA's regs, may give conflicting or confusing interpretations. With the proliferation of cameras in cellphones and PDAs, it seems likely that we're far from resolving the conflicting interests of artists, journalists, the general public, those who want privacy, and those who want more security.

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

What is the Role of the Anonymous Source?

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Posted by Alan Wexelblat

After a number of embarrassing incidents over the past couple of years, mainstream media outlets are examining their use of anonymous sources, reports Lorne Manly for the NYTimes. At the same time, small and independent journalists are pointing out that the pendulum may have swung too far, given the atmosphere of mistrust and ongoing litigation directed at revealing anonymous sources.

If any good comes out of this, I believe it will be in the form of requirements that sources be contextualized, giving the readers more ability to understand the viewpoint and agenda of the speaker. Identifying someone as "a Northeastern Democratic Congressman" may be more informative than just "a Congressman." Likewise, "a defense policy analyst for a conservative think-tank" would tell us more than just the generic "defense policy analyst." Manly reports that NBC News is trying to move in this direction which could, if done well, help the public.

Other organizations are trying to force reporters to identify sources to management at their workplaces, such as a managing editor. This sounds fine in theory - and may serve as as brake on future journalistic malfeasance - but it raises the trust specter and will no doubt complicate the legal situation for media that wish to protect anonymous sources in court.

Rule changes are sometimes adopted hastily in the wake of scandals. Howard Kurtz reports that such a change is ongoing at Newsweek in the wake of the "flushed Quran" story. The magazine is restricting use of anonymous sources and requiring reporters to show why anonymity is necessary. Editors will have to approve anonymous sources. The ironic part about this is that the story that caused the ruckus was well-known prior to Newsweek's posting and in fact the Red Cross has broken its customary silence in order to point out that it gave the Pentagon multiple reports from detainees at Guantanamo detailing the behavior that Newsweek reported and then shamefully retracted.

Anonymous source or not, the story was correct. That is the role of the anonymous source - to bring forth information that cannot or is not being revealed by conventional channels. By deflecting attention onto this secondary phenomenon, detractors such as White House press secretary Scott McClellan are artfully avoiding having to discuss the facts of the matter.

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

Repositories vs. Spreaders of Knowledge

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Posted by Alan Wexelblat

Wade Roush has a long piece in the May Tech Review on "The Infinite Library." Looking at digitization of books, particularly Google's effort, Roush tries to cover many of the implications for copyright, for the publishing industry, for search companies, and all reflecting on the role of libraries. If Roush has an opinion on this, I can't discern it. He tries to cover all the bases, giving voices (quotes) to participants from many sides. The result is a much more bland piece than I would have liked. Considering the passions this kind of thing arouses, and the significant transformations libraries have undergone in the last 20 years or so, it seems imperative to address questions of good or bad, wrong or right. Roush gives a good survey - who has good in-depth analysis to add?

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

Copyright Holder Nixes Performance of Play Due to Race of Performers

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Posted by Ernest Miller

The Baltimore Sun reports that the copyright holders of Big River, which is based on Mark Twain's The Adventures of Huckleberry Finn, denied permission to C-SPAN to air a performance of a song from that play by high school students on a show that celebrated high school theatre (Racial Roles Bar Students from Show). The reason given by the copyright holder is that the role of Huck was played by an African-American student and the tole of the slave, Jim, was played by a white student.

Apparently, Mark Twain's great commentary on race relations in America could not be sullied by further commentary through cross casting.

When John Milewski, executive producer of Close Up, asked R&H Theatricals in New York - the Rodgers & Hammerstein organization, which holds the license on the play - for the right to air the students' performance, permission was denied. The reason was cross casting, R&H confirmed.

Bert Fink, a spokesman for R&H, said his organization is not against cross casting, citing a 1997 Wonderful World of Disney version of Cinderella that featured R&B artist Brandy in the lead. "But when you're dealing with a theatrical work and race or ethnicity is a key factor, many authors or playwrights feel strongly that ethnicity has to be reflected in the actors who portray the characters," he said.

"In the books, Jim is a runaway slave. He is clearly in the novel an African-American man. And Huck is a free white man - that is central to the story. To ignore that component or to comment on it by switching is not faithful to the story that the musical's authors are trying to tell."

Faithful? Faithful? Heck, it couldn't be more faithful to what Mark Twain was trying to accomplish. Bloody idiots.


Siva Vaidhyanathan debates an IP lawyer commentator regarding the issue (Who is Copyright For?).

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

May 21, 2005

A Shameful Act of Censorship and Betrayal

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Posted by Alan Wexelblat

Courtesy of boingboing: the story of a teacher in Spain who has been subject to a purge - loss of job, reputation, and apparent revision of history to claim he never taught at the Polytechnic University of Valencia UPV.

The "criminal?" Cory's friend Jorge Cortell. The "crime?" Teaching (to a packed hall) about the law and benefits of legal uses of P2P. Sr. Cortell apparently made the mistake of informing the national police and the attorney general in advance. They exerted pressure that led to Cortell's eventual firing.

Cortell has posted his summary of the story (in English) along with links to blogs and mainstream media coverage.

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

May 20, 2005

Intellectual Property Justice League

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Posted by Ernest Miller

Copyfighters may want to visit the IP Justice League of America, "celebrating the only comic book of international super-star INTELLECTUAL PROPERTY POLICY super heroes!" Not much there yet, except some Warhol-esque portraits that rollover to declare:

  • Eblen Moglen - "Batman"
  • Larry Lessig - "Superman"
  • John Gilmore - "Green Lantern"
  • Robin Gross - "Wonder Woman"
  • Richard Stallman - "The Martian"
  • Ed Felten - "The Flash"
And the following:
Can the IP Justice League save Wil Wheaton from super-villain Jack Valenti? Will they defeat his evil army of psycho culture pirates!? Whose side is Avril Lavigne REALLY on??
I guess we'll just have to stay tuned to the same IP Justice League Channel, same IP Justice League time for more. How about an RSS feed instead, so I know when it is updated?

(And would this group actually call themselves the Intellectual Property League? Wouldn't they use some other term?)

via BoingBoing

Comments (5) + TrackBacks (0) | Category: Humor

May 19, 2005

50 Cent Ain't Sweatin' Da Repercussions of P2P

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Posted by Jason Schultz

From the latest Spin magazine:

Selling music is like selling drugs. If you want your clientele to keep coming back, you need to consistently supply a quality product. People know what they want. People talk about how the music industry is struggling, but there's no strain on Eminem records. There's no strain on the Game. There's no strain on 50 Cent records. My first album was downloaded 300,000 times before it went on sale, but we still sold 872,000 copies the first week and 822,000 copies the second week. I don't believe in the oversaturation of a quality product.

Comments (7) + TrackBacks (0) | Category: IP Use

Canadian Appeals Court Denies P2P Subpoenas

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Posted by Jason Schultz

According to Canadian cyberlaw prof Michael Geist, the Canadian Federal Court of Appeals has affirmed a lower decision denying the Canadian Recording Industry Association the right to subpoena the identities of 29 alleged filesharers:

The court focused much of its discussion on the privacy concerns associated with disclosing the identities of the file sharers. Although it noted the importance of intellectual property protection, it emphasized that in the Internet age "the potential for unwarranted intrusion into personal lives is now unparalleled." The court was clearly sympathetic to the privacy issues raised by the case and sought to map out some significant privacy protections. For example, it concluded that data associating users with an IP addresses goes stale very quickly and therefore evidence that is not current may be sufficient reason to dismiss a motion to disclose user identities. The court also noted that there must be care taken to ensure that personal information beyond the copyright allegations are not disclosed and that the identities of the individuals may be protected through confidentiality orders or by using initials.

While these protections are important, the court has certainly opened the door to new file sharing lawsuits. The court says that a "bona fide" standard is sufficient for disclosure, a different standard from the higher prima facie standard used by the trial judge. The court also left open many of the copyright issues, concluding that the trial judge should not have delved into the copyright analysis. While it raised some potential concerns with that analysis, the appellate court did not reach any definitive conclusions on the copyright issues.

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

May 18, 2005

Big-time Copyright Geekery over at Patry's Blog

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Posted by Jason Schultz

As Ernie has noted, copyright scholar Bill Patry has started a blog. So far, it's a hit for copyright geeks like myself, presenting interesting issues, depth, knowledge, and fine writing. Patry has a particularly interesting discussion going on right now about the constitutionality of the federal anti-bootlegging statutes vis-a-vis the dormant Copyright Clause, with comments from two Boalt Hall law students and EFF's own Fred von Lohmann in the mix.

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

Pesce on Hyperdistribution, Part 1

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Posted by Alan Wexelblat

So, having read part one of Mark Pesce's series on television piracy, I can say "welcome" to another copyfighter, albeit one whose writing has an ahistorical bent to it.

Pesce's column makes it seem like the story starts with Battlestar Galactica and BitTorrent in late 2004. Um, no, I'm sorry. I was watching Babylon 5 episodes with vast groups of MIT geeks as soon as someone could snatch the downloaded signal off the satellite, days before the local affiliates broadcast it. Friends of mine have been going to Buffy parties and participating in other TV-show sneak-preview distribution networks for years. So yeah, BitTorrent makes it easier and having broadband makes it available to more people, but it's not really new.

Pesce's next point is that BitTorrent creates a kind of "hyperdistribution" in which the net becomes more efficient at distributing media than broadcast possibly can. Again, not really news. To pick just one non-random example, Nicholas Negroponte has been saying things like this for years (see Being Digital for example).

Pesce is also wrong when he calls out region-specific/live broadcasting as "unsuitable" for hyperdistribution. He should study some of the history around the Cartel's attempts to cut off TiVo's distribution features because they break region locks for things like blacked-out sports events. Trust me, there's an audience for this.

What Pesce is really trying to write is his analysis of the potential commerical models that hyperdistribution enables. Assuming that the Cartel called off its attempt to smash BitTorrent, and called off its jihad against its TV-viewing customers, it might consider some of what Pesce is offering in the way of alternative business models. He notes that station id 'bugs' are permanently etched on most TV shows now. I find these logos incredibly annoying, but Pesce seems to think it's a good place to put station-independent "advertiser payloads" (why does this remind me of "deaths by friendly fire?"). He notes that some advertisers are already doing this, as well as experimenting with different forms of embedded (and thus less skippable) advertising.

Mark has correctly noticed that television revenue is directly proportional to audience size - that's the metric advertisers use - and that BitTorrenting the content only builds audience. So in theory it should make economic sense to build a business around this. However, what he's failed to realize is that the Cartel are impervious to economic analysis, as it's oil to their water.

[Edit: changed the title and removed timeliness references in response to Mark's notes about his historical involvement. See comments for details]

Comments (11) + TrackBacks (0) | Category: Big Thoughts

David v. Goliath - Starring Warren Beatty as David

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Posted by Ernest Miller

According to the Chicago Sun-Times, actor Warren Beatty is in a licensing dispute with Tribune Media Services, which claims control over the Dick Tracy character (Beatty sues Tribune Unit over Dick Tracy Rights):

''The Tribune is a big, powerful company and they think they can just run roughshod over people. They picked the wrong guy,'' Fields [Beatty's lawyer] said.
via I Want Media

UPDATE 18 May 2005

Hmmmm, this explains things (Outlaw Productions and di Bonaventura Pictures Team to Bring Dick Tracy to Television)

The producers recently secured rights from Tribune Media Services (TMS), a division of Tribune Company, and will attach a writer over the next month. The plan is to pitch a modern take on the classic crime-fighting hero to networks this summer.
Actually, I would kind of like to see a Dick Tracy television show.

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

May 17, 2005

May 16, 2005

May the Farce Be With You

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Posted by Ernest Miller

The Organic Trade Association has put together a satire (a satire, not a parody) using Star Wars to take on factory farming (the Dark Side) vs. organic farming (the Light Side). Read the press release: Entertaining New Star Wars Spoof Debuts on the Web, Touting Organic Food and Shining a Light on the "Dark Side of the Farm". The puppetry is fairly humorous and clever. What is especially cool, though, is that the short film has a Creative Commons license, Attribution, Non-Commercial, Share Alike to be precise.

View the satire here: Store Wars

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

How Much Profit Is In Downloadable Music?

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Posted by Alan Wexelblat

Cringely's column looks at inflection points, including Microsoft's new game box (which is, predictably, a home digital media center), the Google Accelerator (which is going to push all sorts of buttons around fair use and restricting access - I may try to do a Big Think about that later), and finally he gets back to what he thinks Apple's plans are.

Along the way he lays out his view of the strategy for Yahoo's Music Service, pointing out that their USD7 pricepoint is probably the zero-margin point. This means that the subscription services that are charging more are probably pocketing that extra $7-8/month as profit. Not bad on a per-customer basis; too bad there are so few customers.

Cringely notes that this a Yahoo! trying to displace the per-song pricing model that has made Apple dominant. However, Cringely seems to agree with me that the major market (for both music and movies) is and will remain in the download-and-play arena, not streaming.

Comments (9) + TrackBacks (0) | Category: IP Markets and Monopolies

May 13, 2005

"Broadcast Flag?" "Yes, Master?"

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Writes Cory @ BoingBoing:

Well, they've barely finished hosing the blood off the tile after our total creaming of Hollywood's would-be device-czars in the Broadcast Flag victory (where we got a judge to tell Hollywood that they shouldn't have a veto over new digital television technologies), but it's already back.

Here's the shockingly broad and badly conceived bill that Hollywood is shopping on the Hill, trying to find a Congresscritter so fantastically, suicidally stupid that s/he will actually set out to break America's televisions.

Ernie Miller has the scoop.

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

In the "Are you S**tting Me?" Category

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Posted by Alan Wexelblat

Props to NTK for pointing out Microsoft's "Thought Thieves" short film competition. This jim dandy of a propaganda front is supposed to encourage people (primarily teenagers) to create films on "how intellectual property theft affects both individuals and society." The mind boggles. Can I please make a film about Burst, InterTrust and the umpty-zump other companies that have sued Microsoft for stealing their intellectual property?

But wait, there's more...

Microsoft helpfully tell us that entries must be the "sole work and creation of the
person submitting the film." This means, to quote NTK, "no sharing your precious intellectual property fluids with your cameraman, Mr Auteur"!

The very name ought to give pause, conjuring up as it does mad scientist images of evil mind rays siphoning out those delicate cranial gems. Never mind the basic intellectual property concept that thoughts are not protected, only various expressions of them. NTK has offered its own prizes for copies of submitted entries; somehow that seems like it'll be much more interesting.

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

St. Lawrence Univ. Abuses Copyright Law to Determine Identity of Anonymous Bloggers

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Posted by Ernest Miller

According to Inside Higher Ed, St. Lawrence University (Founded April 3, 1856; oldest continuously coeducational institution of higher learning in New York State) has, in a stunning blow against freedom of speech, launched a lawsuit to determine the identities of a group of anonymous bloggers critical of the school (Cloaked in Cyberspace). See also, Central New York Business Journal, SLU Tries to Flush Out Naysayers With Copyright Suit.

The blog, Take Back Our Campus!, hasn't been updated since April 4, 2005, but is highly critical of St. Lawrence University, members of its faculty and students. The blog is frequently offensive and sophomoric, but then again, isn't this sort of thing how sophomores got their name?

In any case, it is odd that a university would launch a lawsuit to determine the identity of the anonymous bloggers. Hello? Freedom of speech. Nevertheless, I can understand that some speech might beyond the pale (that is why not all speech is protected by the First Amendment). So, what is even stranger, is the method through which the university seeks to determine the identities of the bloggers. The university hasn't launched a libel suit or something similar. The university is making specious claims of copyright infringement.

Read on for highlights from the complaint...

...continue reading.

Comments (5) + TrackBacks (0) | Category: IP Abuse

May 12, 2005

Record Labels Squashing Cover Ringtones?

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Posted by Ernest Miller

Mobile Content News reports that major recording labels are pressuring cellphone carriers not to carry cover versions of hit ringtones (Labels Attempt To Monopolize Ringtone Industry):

“In our own situation, the labels have told the mobile operators that the non-original ringtones are “illegal” or would confuse the public (despite big disclaimers on most sited or ads stating they are not the originals),” said Slep [funder of cover ringtones provider]. “Because the mobile operators do not want any undue hassle and value their customer base so strongly, they have succumbed to the pressure tactics of the labels. Many of the aggregators that have supplied the operators with the polyphonic ringtones were forced to drop carrying the cover version material we supply under this pressure, or else the labels threatened to NOT supply the original version tracks.” [emphasis in original]
This is wrong on so many levels it isn't funny. Obviously, if these allegations are true (which wouldn't be surprising), we have the major record labels engaged in egregious anti-competive practices. Furthermore, why the heck is this even an issue? Apparently because the cellphone companies will only let you get ringtones through them. Why shouldn't you be able to download ringtones from any provider? Thank you, bogus telecommunications regulation that operates in conjunction with copyright to reinforce anticompetitive practices.

One strange aspect of this is that there is apparently an anonymous blog dedicated to ringtones by the artists themselves and against the cover versions ("The newest ringtones - truetones, polyphonics, wallpapers from the artists and record labels themselves") (Ringtone Releases).

via BillboardPostPlay

Comments (6) + TrackBacks (0) | Category: IP Abuse

Yahoo! Jumps! Into! Music! Game!

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Posted by Alan Wexelblat

(sorry, can't help the exclamation thing.)

When iTunes first debuted I pointed out that Apple missed an opportunity to undercut other services on price. In a way they did offer a cheaper alternative by dropping mandatory subscription fees, but Apple's motto has always been "We'll make it good; someone else will make it cheap." This was true for the Mac, for digital music players, and for online music services.

Now comes Yahoo! Music Unlimited (beta) with the "we're cheaper" philosophy. For a monthly priced USD7 or $5/mo if you sign up for a whole year, you get unlimited streams out of a 1 million+ song catalog. (Brief news coverage here on

Dowloading is also possible, for an additional $.79 per song. The downloads are touted as "burnable" but the site is extremely cagey about formats. My guess is that what they're selling are Windows audio formats because their link for players you can use goes to Windows' "Plays For Sure" page. The iPod question is also a bit confusingly answered. It appears that what they're doing will work with a Windows-linked iPod even though that's not on their list.

The DRM is even more confusing for end users, as you can read the following two sentences only a couple paragraphs apart:
Send a song to other subscribers easily
Yahoo! Music does not permit copying or transferring music files to other users.
Presumably "sending" is different from "copying" or "transferring" but the page doesn't even come close to explaining how. Nor why I should care.

I confess I don't see anything here that I'm willing to try to plow through, even for the admittedly throwaway price of $5/month. I can get free streams now from aggregators like Shoutcast or specialty services like Digitally Imported. And if I'm saving 20 cents per download I'd need to make 25 downloads/month just to break even with iTunes' prices.

So! Much! For! Cheap! Is! Everything!

Comments (6) + TrackBacks (0) | Category: IP Markets and Monopolies

May 11, 2005

Subcontinent Copyright Wars

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Posted by Ernest Miller

Fascinating article on the BBC regarding the copyright wars between India and Pakistan (How piracy is entrenched in Pakistan). Turns out that Pakistan is cracking down on copyright infringement of Western movies, but not on movies from India:

"I am sure that at some level, allowing piracy of Indian films was considered a smart act of industrial sabotage by the Pakistani policy makers," says Ameed Riaz, the head of EMI Pakistan.

"Basically, anything that hurt India was considered kosher."

It is no coincidence that the first - little noticed - copyright law adopted in Pakistan in 1962 expressly stated that it did not cover Indian intellectual property.

However, the effect, it seems, was to entrench Bollywood even further in Pakistani culture:
Not just that: Pakistan's fashion and modelling industry has come to be deeply dependent on the Indian film culture.

Event management companies in Karachi that organise weddings for the affluent say that many brides want the wedding stage to resemble a set from a particular movie.

The wedding set from Indian diva Aishwarya Rai's film, Hum Dil De Chuke Sanam, was replicated at so many weddings in Karachi that it became a joke.

Street jargon employed by Bollywood crime characters has become every Pakistani parent's nightmare. Even the mullah in the mosque - if he wants to be popular with his audience - will base his religious anthems on popular Indian film music tunes.

Very interesting.

via Hit and Run

Comments (6) + TrackBacks (0) | Category: Culture

May 10, 2005

Online Journalism Investigating Itself

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Posted by Alan Wexelblat

According to an AP story (here on USA Today), an investigation by Adam Penenberg into articles written by WIRED contributor Michelle Delio has turned up more than 40 "color quote" sources who could not be identified. Alert readers may recognize Penenberg as the person who exposed fabricated stories by Stephen Glass in The New Republic.

Delio has pointed out in her own defense that these quote sources were supporting main news points in the stories, which she says have not been questioned.

However, WIRED, in its lengthy report on the matter, noted four stories in which "unconfirmed sources arguably play a more prominent role," and has edited these stories to reflect its findings but left the stories online. Other publications have taken more conservative views: MIT's Tech Review pulled two of Delio's stories, and Infoworld edited stories to remove non-sourceable quotes.

The question here is did Delio make up the quotes or simply fail to keep adequate notes on the contact information for these sources? As someone who is himself habitually disorganized, I have some sympathy for a person who didn't keep notes on things she considered minor that happened some years ago. Given the general air of hostility towards online journalim, it'll be interesting to see how it responds to scandals in the family.

Comments (5) + TrackBacks (0) | Category: Speech

A Patent System Gone Awry

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Posted by Alan Wexelblat

Nice article last week from Jonathan Krim in the Washington Post on the current "land grab" going on in the USPTO as it seems Congress might actually get around to doing something with the Office, instead of just talking about it. Whether any of the proposed "reforms" will address fundamental issues of poor patent quality, examiner workload, or other core items remains uncertain. What is certain is that the only voices currently being heard are those of patent holders - companies, individuals, universities. Other stakeholders, such as free/open software developers and even the patent examiners themselves, are not even invited to comment.

As Krim notes in plain language:

more controversial notions aimed at deeper change to the patent system [...] were snuffed out long ago, in a process effectively hijacked by large companies and powerful patent-lawyer groups.

Proposals that should be uncontroversial - such as enforcing the requirements that patents be unique and non-obvious, and that relevant prior art must be cited - seem to be beyond consideration even when they are recommended by nonpartisan organizations such as the National Academies of Science. This makes me feel particularly hopeless about software patents.

Update: Brenda Sandburg has a spotlight story on focusing on the software industry's efforts (primarily through the BSA) to limit the ability of a holder to get an injunction against an alleged infringer. The primary target is so-called patent trolls - companies formed solely to hold and litigate intellectual property.

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

Did Frank Zappa Invent Music Downloading in 1983?

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Posted by Ernest Miller

Legendary musician Frank Zappa wrote an extremely interesting article on home taping back in 1983 (A Proposal for a System to Replace Ordinary Record Merchandising):

Every major record company has vaults full of (and perpetual rights to) great recording by major artists in many categories which might still provide enjoyment to music consumers if they were made available in the right way. MUSIC CONSUMERS LIKE TO CONSUME MUSIC . . . NOT PIECES OF VINYL WRAPPED IN PIECES OF CARDBOARD. [emphasis in original]
Read the whole thing. Very cool.

via MeFi

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

May 9, 2005

Swim Together, Sink Together?

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Via Ernie Miller, something I missed but you shouldn't: Derek Slater's reflections on what constitutes a desirable common platform for copyfighters:

I am deeply uncomfortable with [Downhill Battle's] excusing and encouraging widespread, infringing P2P file-sharing, and I particularly disagree with their doing so as a means to destroy the major record labels. I think that association with this stance poses the greatest danger to succeeding in the copyfight.

...Some say that Downhill Battle helps make other groups like EFF or PK seem more moderate by contrast. I worry that, instead, other groups who do not share these views get lumped in with Downhill Battle. I worry that, for instance, the EFF's Let the Music Play campaign gets interpreted as expousing similar views, and that, when the EFF supports building a tool like Tor, it's interpreted as merely a means to shield unlawful online activities.

As Ernie advises, read the whole thing.

Update [May 10]: Seth Finkelstein weighs in, sharing insight from his role in the battle against filtering software. In a nutshell, he sees little long-term value in moderates attempting to "herd cats" to reach a common platform, and warns against "moderate"/"radical" divisiveness:

In the few media interactions I've had regarding censorware, whenever I'd get a question about whether or not I agreed with the alleged wild-eyed radicals of Peacefire, (sorry Bennett :-)), I'd decline the invitation to play let's-you-and-him-fight. I would say something along the lines that I thought so-and-so, and I could talk about what I thought, but not anybody else. It worked for me. Maybe it was just that I was sympathetic and at too low a level, while higher-level people would have more pressure. But I actually didn't feel I had to carry any burden of ensuring moderation in everyone in the whole cause (heck, truth be told, I think Peacefire's radicalism eventually worked for them overall, much better than my attempts at a pseudoprofessorial presentation).

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

Hilary Rosen Laments Apple's DRM Strategy

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Posted by Ernest Miller

Hilary Rosen, formerly head of the RIAA, has a most hilarious column on the new Huffington Post. I double checked the date on the post, and it isn't April Fools. Miss Rosen is complaining that she can't buy music for her iPod that doesn't come from iTunes (Steve Jobs, Let my Music Go):

I spent 17 years in the music business the last several of which were all about pushing and prodding the painful development of legitimate on-line music. Now, the music fan is on the cusp of riches in their options - free of the viruses of the pirate sites. There are lots of places you can go for great music at good deals and with a deep catalog of songs from over the last 20 or 30 years.,,, even There are little players to make your favorite music even more portable than ever starting at as little as 29 bucks. Most every player device works at every one of these “stores” and it is pretty easy to keep all the songs, no matter where you got them, in a single folder or "jukebox" on your computer.
Hello? This was and is an obvious consequence of your DRM-ed world, Miss Rosen. Apple is simply doing what comes natural. Having insisted on the means for exclusion being legally protected (i.e. DMCA), Apple is using those means to exclude competitors. The only reason that the other companies mentioned aren't doing the same thing is because they are struggling to gain marketshare. Were they the dominant players in the market, they would be doing the same thing as Apple.
The problem is that the iPod only works with either songs that you buy from the on-line Apple iTunes store or songs that you rip from your own CD’s.
Well, only if you ignore the many smaller companies that sell unencumbered MP3s to their customers.
But those other music sites have lots of music that you can’t get at the iTunes store.
And they haven't licensed to Apple, why? Whose fault is that? Is it Apple's? Or is it the fault of your former clients?
If you are really a geek, you can figure out how to strip the songs you might have bought from another on-line store of all identifying information so that they will go into the iPod. But then you have also degraded the sound quality. How cruel.
Cruel? Miss Rosen is one of the main people who insisted on creating the environment for this cruelty. In any case, if you know what you're doing, you don't have to lose much in the way of sound quality ... unless the systems are designed to make such stripping of information result in poor sound quality. Then, of course, you could always strip the DRM, but that would be a crime, thanks in part to Miss Rosen.
But keeping the iTunes system a proprietary technology to prevent anyone from using multiple (read Microsoft) music systems is the most anti-consumer and user unfriendly thing any god can do. Is this the same Jobs that railed for years about the Microsoft monopoly? Is taking a page out of their playbook the only way to have a successful business? If he isn’t careful Bill Gates might just Betamax him while the crowds cheer him on. Come on Steve – open it up.
Is it the only way to run a successful business? No, but it is a very good way to run one. Jobs isn't going to open up his system until it makes business sense. Unfortunately, Miss Rosen hasn't provided a single argument as to why it makes good business sense for him to do so. Is DRM anti-consumer and user unfriendly? Heck, yes. But that didn't stop Miss Rosen for lobbying on its behalf.
Why am I complaining about this? Why isn’t everyone?
Many of us have been complaining for a long, long time. Of course, our voices may have been drowned out to a certain extent by all the propaganda emanating from the RIAA that music without the encumbrances of DRM is tantamount to piracy.

You can't have it both ways Miss Rosen. If you want DRM, someone is going to have to control that DRM. And if you don't think they won't use that control to their ultimate advantage, you obviously didn't learn anything from your association with the music industry.

Comments (24) + TrackBacks (1) | Category: IP Abuse

May 6, 2005

Court on Broadcast Flag: You Can't Hide Elephants in Mouseholes

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Killer quote from the ruling against the FCC's broadcast flag regulation [PDF]:

We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver status. And the agency's strained and implausible interpretations of the Communications Act of 1934 do not lend credence to its position. As the Supreme Court has reminded us, "Congress does not...hide elephants in mouseholes." Whitman v. Am. Trucking Association 531 U.S. 457, 468 (2001). In sum, we hold that the Commission only has general authority under Title 1 to regulate appartus used for receipt of radio or wire communication while those appartus are engaged in communication.

Update: Another killer quote, this one from a (naturally) ecstatic Cory @ BoingBoing:

The [broadcast flag] rules set out to ban the use of Open Source/Free Software in digital television applications, and to require hardware components to be designed to be hard or impossible to create open drivers for. Fox exec Andy Setos told me that we were there to create "a polite marketplace" where no one would be allowed to disrupt his business model without getting his permission and cooperation first (cough planned economy cough commies cough).

I'm honored and thrilled to have been part of the gigantic upswelling of public outcry over this naked attempt to bootstrap the studios' limited monopoly over copying movies into an unlimited monopoly over the design of every device that might be used to copy a movie.

Update #2: Declan McCullagh @ CNET: "In a stunning victory for hardware makers and television buffs, a federal appeals court has tossed out government rules that would have outlawed many digital TV receivers and tuner cards starting July 1. ...One result of Friday's ruling is that, if upheld on appeal, the fight over digital TV piracy will return to Capitol Hill. The court noted that the FCC 'has no power to act' until 'Congress confers power on it' through enacting a law explicitly authorizing the broadcast flag."

Update #3: Ernie Miller tracks the explosion of press coverage & commentary.

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

Broadcast Flag Regulation Shot Down

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Posted by Jason Schultz

The American Library Association, Public Knowledge, EFF, et al. just won our joint challenge to the FCC's ability to regulate consumer electronic devices that receive digital television signals, 3-0 at the D.C. Circuit Court of Appeals.

It's a lengthy administrative opinion, but it basically says the FCC can't regulate home use of digital content without explicit authority from Congress and that educators, librarians, and consumers have a legitimate interest in fair use of those materials.

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

May 5, 2005

We Want YOU to Help Protect Orphan Works

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Posted by Wendy Seltzer

Copyright can be enough of a problem when copyright claimants make unreasonable demands, but sometimes, it's even worse when you can't find the copyright holder at all. Documentaries don’t get broadcast; books don't get published; films don't get restored; digital materials don't get archived, all because they use or incorporate works whose owners can’t be traced, so there's no one from whom to seek permission. In many cases, orphan works are lost because no one can authorize their use.

The Copyright Office has opened a Notice of Inquiry on the problem of orphan works, requesting public comment on the scope of the problem and possible solutions. Many people submitted comments, and Kat Hanna and Stanford's Center for Internet & Society are working to get even more evidence into the record on reply. Reply comments are due May 9.

They’ve invited us to highlight comments from round 1 to get your creative juices flowing, so here's one from Daniel Callahan, discussing the problems orphanhood poses for those who want to enjoy or study comic book culture:

The comic book industry is usually perceived as composed of two publishing entities: Marvel and DC Comics. However, there have been many smaller companies over the last six decades who have entered the market and later gone out of business.

As such, surviving copies of the titles they published are rare, and their preservation as works of commercial art is dubious because of existing copyright laws. Marvel and DC may easily publish a 'reprint' volume, but a fan or entrepreneur who would like to scan in or republish comics whose copyright holders cannot be located remains stymied.

A comprehensive preservation project of these works cannot be done unless and until the status of orphan works is determined by your office. Since many of these comics books were not printed on paper designed to survive for decades, there a window of time in which this preservation can be done. If the status quo remains, we will most likely lose many books to decay or neglect.

If this sets you to thinking about ways you or others you know have been affected by the "orphan works" problem, head over to, where we've made it easy to submit a reply comment.

Comments (5) + TrackBacks (0) | Category: Culture

The Republican Tech Agenda

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Posted by Jason Schultz

According to the website of Bob Goodlatte (sounds like a James Bond villain, doesn't it?), the Republican High Tech Working Group will focus on the following issues:

Ensuring Employee Stock Ownership Remains Viable – We will vigilantly promote and protect the stock ownership and retirement security of high-tech’s rank and file employees.

Research & Development (R&D) Tax Credit – We will seek to extend the R&D tax credit and ensure that basic federal R&D spending is sufficient to maintain U.S. technological edge.

Skilled Workforce – We will continue to prepare and develop workers for an information economy by supporting education reforms and funding that improve American’s math and science programs in order to fill high-tech jobs.

Reduce Trade Barriers – We will continue to promote free and fair trade by lowering barriers and supporting trade agreements like CAFTA (Central American Free Trade Agreement).

Ensuring Fairness in Government IT Acquisitions – We will continue to promote the commercialization of the Federal marketplace to ensure an open and competitive landscape for all technology companies.

Patent Reform – We will work to modernize the patent system so that companies have incentives to produce new and high-quality patents, and that the United States Patent and Trademark Office (USPTO) provides effective turnaround especially for an industry that has rapidly changing technology and innovations.

Protect Intellectual Property from Digital Piracy - We will promote and enforce strong copyright and patent protection laws to prevent and combat the growing trend of digital piracy.

Spectrum Enhancement – We will continue to work to update the Telecommunications Act to reflect the changes in technology and competition that may have been driven by the Internet.

Spyware and Phishing – We will work to ensure that innovation is not stifled and consumer confidence is not threatened by bad actors, but that the Internet remains a safe and secure place for electronic commerce to take place.

Promote Health IT – We will work with the Administration to enact the federal electronic health initiative to move more medical records on-line to save costs, reduce errors, and provide higher-quality care.

Promote Broadband – We will work to fulfill the President’s goal of access to broadband by working to create economic incentives, to remove regulatory barriers, and to promote new technologies to help make broadband affordable for all Americans.

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

Australia Considers Codifying Fair Use

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Australian Attorney General Philip Ruddock has just released an issues paper on "fair dealing, fair use and other exceptions in the digital age" in order to solicit opinions on whether Australia's Copyright Act should include additional specific exceptions to copyright or a broad "fair use" exception. Among the questions under consideration: whether Australia should recognize "format-shifting" and back-up copying as fair dealing/fair use.

As longtime Copyfight readers may remember, Kim Weatherall has been following the story closely over @ Weatherall's Law; here's a guided tour through some of her previous thinking on the future of digital rights in Australia: Australia's DMCA - The Bad News about the Good News.

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

May 4, 2005

Gives New Meaning to "Rent A Cop"

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Posted by Alan Wexelblat

Missed this one a couple weeks back: NYPost report that two New York cops are under Internal Affairs (IA) investigation for allegedly taking payoffs from the Cartel for busting vendors of pirated DVDs. Isn't this what organized crime does? Call up the cops and tip them off to your rivals' activities, then the cops swoop in and make arrests. All legal, except that it seems afterward some cash might have changed hands - a definite no-no.

The MPAA claims it doesn't make such payoffs, and the likeliest candidate for getting shoved under this IA bus are the "independent" investigators hired by the Cartel. Many of these investigators are ex-cops themselves so it's natural they'd tip off their buddies still on the force. The pivotal question will be whether they or IA can show someone told them to make payoffs.

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

"Podcasting" Experiment

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Posted by Alan Wexelblat

WIRED's Xeni Jardin reports that Infinity Broadcasting will soon launch the first "all-podcast radio station." What this seems to mean is that the newly renamed KYOURadio will accept and rebroadcast streams of listener-submitted content. Of course content will be "screened" to see that it "meets FCC guidelines" - whatever the heck that means.

I'm not sure I would call this "podcasting" since it will include only broadcast and streaming - no downloading. However, it does have some interesting features, not least of which is Infinity's announced intention to use its deep pockets (it is a subsidiary of Viacom) to cover major-label music-licensing fees. This definitely falls into the "could be really good or could really suck a lot" category.

(Speaking of "suck" could someone please convince these guys that black-text-on-a-mostly-black-and-gray-background is not cool? It's stupid and unreadable.)

Comments (2) + TrackBacks (0) | Category: IP Markets and Monopolies

Patents and the Software Industry

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Posted by Alan Wexelblat

A long paper from Professor Ronald J Mann of UT Austin Law School attempts to analyze "the role that patents play in the software industry itself" rather than analyzing software patents per se.

You can read the abstract online; the page provides links to download the full paper (it's a hefty PDF).

Mann's main claim seems to be that patents are actually beneficial to small companies competing against larger firms. He specifically excludes "prerevenue startups" - that is, anyone too poor to afford costly patent lawyers. He also excludes most free & open software organizations and (by implication) many standards bodies, as he is concerned only with entities that attempt to make money from software development and innovation.

Mann also writes against the notion of a "patent thicket" that would intuitively act to slow innovation and constrain development by firms not themselves holding large patent portfolios. Mann argues that the industry's continued high R&D spending is evidence against such a thicket. Although this is a good point (why spend so much if you're afraid you'll get snagged by patents) it has the underlying problem of equating corporate R&D spending with software innovation. Speaking personally as someone who's been inside the software industry for a long time I can assure you there's no correlation whatsoever.

Mann has a lot more to say about IP and the software industry, including up-front attacks on the weakness of copyright (e.g. GPL) in protecting software. The article is dense and worth reading even if you disagree with some of the author's premises. In particular, it is important to consider his conclusions that patents do not have an overall large impact on the industry and that - to the extent that they do have an effect - any effect is a net benefit to small (properly defined) firms, not large.

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Follow the Money

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Posted by Alan Wexelblat

Edward Jay Epstein on Slate takes us along on a money-chasing ride that shows how creative rights and money mingle in modern Hollywood. The story focuses on the particularly arcane case of Michael Moore's Farenheit 911, which netted Mr. Moore a tidy sum. People I've spoken with elsewhere in the movie biz tell equally bizarre and arcane tales of how films get made, funded, and owned. An interesting insight into some of the Cartel's inner workings.

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Alert the Troops

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There's a fresh crop of papers by Siva Vaidhyanathan now posted @ SSRN:

  • Siva's review in the spring issue of American Scholar of Kembrew McLeod's Freedom of Expression, David Bollier's Brand Name Bullies, JD Lasica's Darknet, and Pat Choate's Hot Property;
  • an article from the Annals of the American Academy of Political and Social Science called "Remote Control: The Rise of Electronic Cultural Policy"; and lastly
  • the final version of Siva's chapter in the Open Source Annual, "Open Source as Culture/Culture as Open Source."

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May 3, 2005

How to Fight Spyware (Effectively)

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A number of commentators have been channeling Wendy Seltzer on this issue, rightly arguing that we shouldn't create new (simultaneously over-broad/over-specific) laws to fight spyware, but rather, should follow New York Attorney General Eliot Spitzer's lead and simply use the laws we have. Over at the Trademark blog, Marty Schwimmer points out that we also have a stealth weapon in the arsenal -- the "(Ben) Edelman effect." According to Marketwatch, Ben's online muckraking has resulted in Ask Jeeves "terminating an agreement with a marketing/distribution partner that uses drive-by downloads (a form of adware)." Well done.

I see Ben's work as a kind of "Chilling Effects" for spyware. Journalists and litigants are getting hard data, and we're seeing real results. Can we apply this strategy to fighting other kinds of anti-consumer malware?

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These Aren't the Nodes You're Looking For

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bayff-callout2.gif Speaking of anonymity on the Net, there's an upcoming EFF event you may be interested in. On May 10th, the guys from Tor will be at 111 Minna Gallery in downtown San Francisco to answer any and all questions you may have about Tor -- including how you can help protect privacy and freedom on the Internet by setting up your own Tor node.

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

Zuckerman on How to Blog Anonymously

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Ethan Zuckerman, founder of Geekcorps, Berkman fellow, and all-around great guy, has written a terrific technical complement to EFF's recent white paper, How to Blog Safely (About Work or Anything Else). Zuckerman's guide approaches anonymous blogging from the perspective of a government whistleblower in a country with a less-than-transparent government -- the kind of person for whom the promise of the Internet as a vehicle for democratic speech is especially desirable and important. Though the guide is about using technology, it's one-hundred per cent accessible to the non-geek -- Zuckerman's hypothetical "Sarah" walks the reader step-by-step through a set of increasingly challenging technical strategies for keeping your identity private on the Internet:

Sarah starts to wonder what happens if the proxy servers she's using get compromised? What if the Minister convinces the operator of a proxy server - either through legal means or through bribery - to keep records and see whether anyone from his country is using the proxy, and what sites they're using. She's relying on the proxy administrator to protect her, and she doesn't even know who the administrator is!

Spending quite a long time with the local geek this time, she explores a new option: Invisiblog. Run by an anonymous group of Australians called, Invisiblog is a site designed for and by the truly paranoid. You can't post to Invisiblog via the web, as you do with most blog servers. You post to it using specially formatted email, sent through the MixMaster remailer system, signed cryptographically.

It took Sarah a few tries to understand that last sentence. Eventually, she set up GPG - the GNU implementation of Pretty Good Privacy, a public-key encryption system. ...She generates a keypair that she will use to post to the blog - by signing a post with her "private key," the blog server will be able to use her "public key" to check that a post is coming from her, and then put it on the blog.

She then sets up MixMaster, a mailing system designed to obscure the origins of an email message. ...She sends a first MixMaster message to Invisiblog, which includes her public key.

Ethan has asked for a thorough de-bugging; if you care about freedom of speech on the Internet and have expertise to share, drop by Global Voices and lend a hand.

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May 2, 2005


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What else could you say to the news that NTK's razor-sharp Danny O' Brien has joined EFF and will be helming miniLinks?

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I Can't Believe It's Not Cory

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Linspire CEO/perrenial troublemaker Michael Robertson takes a turn banging the DRM slowly* -- that is, explaining why people should reject products hobbled by Digital Restrictions Management. Robertson's description of Microsoft's attempt to sell DRM to consumers is darkly amusing; while Seth Schoen compares your computer to a car and argues for "owner override," Microsoft evidently describes itself as the "black box flight recorder" on your airplane. Uhm, yeah. It's a black box, all right.

It's the ultimate marketing challenge to explain to the world that turning over more control to Microsoft is an improvement that computer users should desire and pay money for. Microsoft has floated a series of hyper-technical sounding initiatives like Palladium and Next-Generation Secure Computing Base (NGSCB), each time explaining why it's a good thing for Microsoft to decide what software users should use. Earlier this week, Bill Gates talked about how it was like a "black box flight recorder," a not-so-subtle reference to 9/11 designed to tug on emotions. I leave it to others to comment on whether Microsoft has the security track record to decide what software is secure enough for me to be running. I'm more interested in the liberty and cost issues.

* For the origin of "banging the DRM slowly," check out the title of Cory's book at BoringBoring.

Update: Related reading via Furdlog via CoCo blog -- an SSRN paper on the implications of DRM for privacy and free expression: "Focusing on two central features of digital rights management - their surveillance function and their ability to unbundle copyrights into discrete and custom-made products - the authors conclude that a promulgation of the current use of digital rights management has the potential to seriously undermine our fundamental public commitments to personal privacy and freedom of expression."

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US Rejects Canadian Rejection of DMCA

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So screams the Slashdot headline. Imagine if the countries were reversed. How kindly would the US take to having our copyright laws dictated to us by another country?

As usual, Michael Geist has the scoop + solid analysis:

It isn't just that they want Canada to implement the WIPO Internet treaties, they want us to implement a Canadian version of the DMCA. They interestingly question whether the Canadian plan meets WIPO standards given the exclusion of devices from our anti-circumvention provisions. I think a plain reading of the WIPO Internet treaties suggests that it does. Meeting the US standard is, of course, an entirely different matter.

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