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.
The always eloquent James Boyle continues his call for evidence-based, rather than faith-based, intellectual property policy in a Financial Times column on the proposed Software Patents Directive in Europe:
In the absence of further evidence, sound bites prevail. Proponents of the directive are left claiming that "stronger rights will mean more innovation." Opponents quote Bill Gates' 1991 words about the expansion of software patentability in the US: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today."
There is, however, a very impressive empirical literature of the expansion of patentability on the US software industry that some European policy makers seem to have missed.
For example, Professor James Bessen and Robert Hunt of the Federal Reserve Bank found that the increase in the level of software patenting in the US was associated with a significant decline in investment in research and development by software companies. As more and more patents were granted, companies spent less on R&D. Correlation does not prove causation, as the authors appropriately caution. Nevertheless their conclusions are clear about the assumption that granting stronger property rights in software will stimulate innovation. "Our evidence suggests this assumption may be incorrect in the case of software patents. If, instead, the legal changes create patent thickets, the result might well be less innovation."
Another scenario where we need to see much more evidence and much less posturing: WIPO meetings.
Many people have been speculating lately that BitTorrent could be the next "'ster" -- that is, a technology under Grokster where the people responsible could be interpreted as inducing infringement. The potential smoking gun: a parody techno-activist's manifesto written by Bram Cohen in 1999. Ernie Miller, who's been all over the story, has the latest:
Today, Bram has added the following text to his agenda:
[This was written in late 1999, and is a parody of a cypherpunk's manifesto, which struck me as very dishonest manifesto claiming to solely be concerned about privacy. This screed is written in the exaggerated voice of a 'prototypical' cypherpunk, making much more direct declarations of his intent.] [emphasis, links in original]
Good answer. Hopefully it'll be enough to convince a judge should a lawsuit be launched.
Pretty scary.
More, from Katie Dean and Kevin Poulsen @ Wired, here.
CPTech's Michelle Childs brings news of a BBC documentary called "Time Shift: Missing, Believed Wiped" that reveals how copyright-infringing home-tapers helped save a part of British cultural history. Explains Childs on the A2k list:
[The documentary] told the story of the beginning of TV in the UK. As tapes were expensive but content was then thought to be cheap, large numbers of now historically relevant programming was erased so they could reuse the tape. The BFI and the BBC then woke up to their loss and set up a public appeal called Treasure Hunt where they asked collectors (i.e., people who either copied thmeselves or purchased from others) to hand over copies. This has been a great success, with the BBC finding many missing programmes. However, the BBC does not pay the collectors, as what they orginally did was a breach of copyright, but do let them hang out at the BBC archive and choose a copy of something they want. Some collectors are annoyed about this, as the BBC then puts some of these clips onto DVDs and sells them.
It's interesting to note that even a national public service broadcaster could not be the sole documenter of even its own history, and it was the choice of the people who watched to record for personal use certain programming that ensured its survival.
One of the unexpected side-benefits of copyright's (traditionally) "leaky boat" -- you've got a bit of help when you need a bail-out.
If you're missing Danny O'Brien's miniLinks, you're missing out on a good chuckle -- vital food for the spirit in the midst of the GroksterSturm und Drang.
Just as he did post-Eldred, Siva Vaidhyanathan has written an accessible reaction piece for Salon that will help people who don't read Supreme Court opinions understand what the Court ruled and why. Late in the day yesterday, William Patry -- reader of countless Supreme Court opinions -- expressed his sharp disappointment in the ruling (hyperlink, mine):
What has changed for me is that I am always impressed by the Court's grasp of issues at oral argument, but am disappointed in the quality of the resulting decision. Grokster is the most disappointing of all. Like Lotus v. Borland, where the Court split 4-4 after a week (lazy!), Grokster raises to me serious issues about the ability of the Court to deal with hard copyright technnology issues. I had predicted after Grokster there were not 5 votes for either side and that proved true. But I didn't expect a phony 9-0 unanimous opinion, phony in the sense of tossing something out as if the Court had really done something. In my view they didn't.
Here's how Siva expresses it:
Overall, Monday's Grokster ruling is a middle-ground decision about a territory that has no middle ground. Souter and the court have issued a Solomon-like decision that will do no good for the plaintiffs, do no harm to infringers -- and could have profoundly negative effects on future innovators of technology.
[...]
Souter is convinced he saved the Sony standard and technological innovation in general by focusing on acts that "induce" people to infringe. "The inducement rule, instead, premises liability on purposeful, culpable expression and conduct," he wrote. To demonstrate that Grokster and StreamCast induced infringement, Souter considered how the product was conceived and distributed, how it was advertised, and even what inspired Grokster's name.
But it's not at all clear that the next big case won't completely undermine the Sony decision and retard innovation, investment and risk-taking. The next company to be sued likely will not make the mistake of marketing its products as "the next Napster." But will courts stretch the "inducement standard" established by this case to include clever marketing? And what about the other devices that let us copy stuff?
On my way home from work the other day, I saw a billboard advertisement for what I believe was a Bose iPod SoundDock. I may be imagining things (I can't find the image online), but I believe it had tiny pink hearts, musical notes, and pirate skull and crossbones symbols like the ones on this shirt emerging from the speaker. It was not, however, called "SoundDockster."
No one is likely to sue Bose, 'ster or no 'ster, pink skull and cross crossbones or no pink skull and cross bones. The quesion is, why? In the wake of this ruling, what will distinguish the "good" inducers (like Google) from the "bad" inducers, especially when they're still working in the garage and haven't yet become the next "'ster" or "pod"? And who will the courts listen to -- the scruffy guy with the rogue open-source software program, or the corporate lawyers peeved that he refuses to hobble it?
As Mike Godwin points out in his must-read Reason column on the decision, the ruling "saved" Sony but blurred its bright line:
By opening up the question of whether the designer or manufacturer or distributor of a new technology had the "intent" to "induce" infringement—terms that are not yet fully defined in this context—the Court made sure that company e-mails, advertising, and any other evidence may now be discovered in a trial proceeding, even if the technology itself has the potential substantial lawful use.
And of course, this is where we get into the "thought-crime" aspect Cory presses in his reaction piece for Popular Science. "You, sir, knew your software could induce people to infringe copyright. As exhibit A clearly shows, you knew it on December 31, 2006, when you sent this email to your colleague describing..."
Sigh.
These are only a few of the roads of inquiry the ruling opens up, as you can readily see with a quick scan of Ernie's latest posts @ Importance Of.... The dust won't settle for some time -- perhaps not until the next 'ster/pod reaches the Supremes.
The hardest, unresolved question after Grokster is what the effect of this ruling will be on the entrepreneur in her garage and on the venture capitalist seeking to put investors’ money to work. In threading the needle, the Court has made the copyright regime more subtle and less clear. The Sony rule was easy for the unrepresented technologist to understand: can somebody use my technology for some lawful purpose? If the answer is yes, then the business model is presumptively lawful.
The Grokster line, announced yesterday, is much harder to work out – and there’s the rub. The cost of the Grokster opinion lies in its lawyerly precision. The problem is that the entrepreneur will have to work harder to determine what she has to do to make sure her business is able to attract the capital needed to get it to market.
The entrepreneur, and her prospective investor, now have to ask some new questions. Does her business model effectively induce others to violate copyright? What kinds of advertisements would get her in trouble? What are the “reasonable” steps that she needs to take to stop people from using her technology for infringing uses? With the help of a good – and likely expensive – lawyer, these questions should be able to be answered.
Mavericks owner/entrepreneur Mark Cuban, who helped fund the Grokster defense, writes about how Wall Street reacted to the decision -- or rather, didn't:
Kaboom!
That was the sound heard throughout wall street as entertainment stocks blast off into the stratosphere upon the mid day news that MGM got the best of the Grokster decision. Wall Street traders and investors recognizing that the decision would lead to certain demise for illegal P2P filesharing sites and result in an explosion of music sales over the coming months and years, pushed stocks such as Warner Media Group to all time highs on record volume.
Except that didn't happen.
In the business world, one way to evaluate the financial importance of news is by watching to see how Wall Street responds to it. If there is the slightest glimmer of hope in a news announcement, at least one person is going to think it will have some level of impact and make a bet on the stock and/or industry impacted.
There wasn't a Kaboom, there wasn't a whisper in the market. Not one buyer or seller of stocks gave a damn. Warner Music Group, probably the only public company that is a pure play proxy for the music business, traded almost exactly the same number of shares as it does every day. The stock was down a nickel.
In other words, no one cared. No one on Wall Street thought that this decision would impact the music business at all.
Of course, that's because it won't.
THe MGM Grokster decision wont help the content business make more money. It won't help artists make more money. This deal gave something to both sides, but it gave the most to lawyers and lobbyists.
In the wake of Grokster, NPR's Morning Edition carried a good piece this AM on the ongoing slump in box office sales. Titled "Movie Industry Refocuses Amid Box-Office Slump" the piece examined the current decline in US box office ticket sales.
The current movie year is not being good to Hollywood. Last week was the 18th straight week in which year-over-year ticket sales were down (that is, comparing 2005 to 2004). Since spring and summar are traditional big movie-going times for Americans this is somewhat surprising. What's also surprising was that Kim Masters' story didn't just point the finger at P2P and shout "piracy."
Indeed, there are two fairly direct explanations for the decline in revenue, which amounts to about USD300 million. One is that there are fewer movies coming out. Six fewer than last year. On average, a big Hollywood movie will make $50 million in ticket sales. The math adds up. Two is that last year at this time a big box-office seller was Mel Gibson's The Passion of the Christ. I've seen ticket figures for this movie ranging from $330 million to $390 million. In addition, this movie appealed to an audience that doesn't traditionally go to Hollywood movies. Losing that revenue this year also explains the change.
So, what to do about it? Masters reports on a number of experiments in altering traditional distribution methods, including shorter times to release DVDs (where movies make most of their money), simultaneous release, or even releasing big budget films direct to DVD.
All of these are responding to the changing demographics and finances of the box office business. In particular, a large segment of the audience just don't go out to movies as much because they're older, have kids, and have a harder time getting out. Couple this with the change in financing, where DVD prices are going down (now often below $20 even for first releases) and ticket prices are going up. Two tickets alone are $20; add in costs for babysitting, parking, and snacks and you've created an equation that doesn't favor the box office.
Of course, all of these changes and proposals are causing heartburn for theater owners, who see Hollywood as using the piracy claim as a smokescreen for shifting money away from the box office. The owners want to see more movies, better movies, and better promotion.
If you're choking on data smog in the aftermath of this morning's ruling in Grokster, Eric Goldman has a pleasingly short, readable round-up of blog commentary. Yes, there's more to come, but this makes for a pleasant breather.
It's not About P2P: It's still not about P2P. Whether or not today's ruling unleashes new litigation against innovators, it will have no effect on the tens of millions of Americans who continue to use P2P file-sharing software, nor will it deter off-shore programmers living beyond the reach of US copyright laws. Hilary Rosen is right: giving music fans a compelling legitimate alternative, whether through collective licensing or simply competing with free, is the only solution.
No Matter What, We've Won: There is reason to celebrate in today's ruling. It could have been much worse. As many have noted, the Court rejected many of the more extreme positions that the entertainment industry argued for in the courts below. As discussed below, the Court left intact several important legal bulwarks for innovators. While the Court didn't shore them up, it also didn't tear them down.
Main Event #1: Sony Betamax. The Supreme Court left the Betamax defense intact by essentially refusing to say anything about it, although the sniping between the two concurrences suggests that a future battle may be coming. Neither side can declare total victory on this score and future cases are probably inevitable (especially where well-advised companies use today's decision as a roadmap for avoiding any hint of inducement).
Main Event #2: Vicarious Liability. The Court chose to punt on this issue, choosing to base its decision on inducement instead of addressing the entertainment industry's "you could have designed it differently" theory of vicarious liability. The Court's exposition of inducement, however, suggests that it would be hostile to any theory that imposed a free-floating obligation to redesign (without any evidence of inducement) on technologists. That's good news.
Main Event #3: Inducement. The Court conjured a new form of indirect copyright liability, importing inducement from patent law. Lawyers will be reading the tea leaves here for years to come, trying to divine the precise boundaries of this new form of copyright liability (and, contrary to what the patent lawyers will tell you, patent precedents don't resolve all the questions). The opinion suggests that copyright plaintiffs must show some overt act of inducement; the design and distribution (along with the usual incidents of distribution) of a product, by itself, are not enough. But the Court's opinion may lead lower courts to conclude that once you find an overt act, however small, virtually everything else becomes relevant to divine your "intent." That would be a bonanza for entertainment lawyers eager to foist huge legal costs on defendants. Reminiscent, in some ways, of the securities class actions that have bedeviled high tech companies for years.
More about the details of the Court's inducement theory soon.
Ernie Miller provides notes from the MPAA/RIAA press conference on the Grokster ruling: "What the court is doing is setting a commonsense standard. If you're Apple, you're fine. If you're Grokster and StreamCast, it is clear from any number of things that they are inducing, you're not going to be fine. We don't think it will be difficult to determine what is an illegitimate or legitimate business."
Cardozo law professor Susan Crawford, in a post entitled, "A Balanced View":
Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.
Professor Crawford argues that Grokster was a "balanced" opinion. In the sense that Grokster pretty much leaves Sony alone, I agree. In the sense that technology itself can continue to advance—it's just business plans that misuse technology that are suspect—I agree.
I don't agree, though, that the end result is "balanced," or that Aimster establishes a "formless balancing text." I think what the Court did here was largely to evade the Sony test's theoretical foundation with two limiting devices.
Seth Finkelstein, in the comments below: "It's not so much 'balanced' so much as 'buffeted by conflicting forces' -- not at all the same thing! :-) "
EFF has now issued a press release on the ruling; here, the meat:
Today the Supreme Court issued a ruling that could impede makers of all kinds of technologies with expensive lawsuits. The long-awaited decision in MGM v. Grokster states that P2P software manufacturers can be held liable for the infringing activities of people who use their software. This decision relies on a new theory of copyright liability that measures whether manufacturers created their wares with the "intent" of inducing consumers to infringe. It means that inventors and entrepreneurs will not only bear the costs of bringing new products to market, but also the costs of lawsuits if consumers start using their products for illegal purposes.
"Today the Supreme Court has unleashed a new era of legal uncertainty on America's innovators," said Fred von Lohmann, EFF's senior intellectual property attorney. "The newly announced inducement theory of copyright liability will fuel a new generation of entertainment industry lawsuits against technology companies. Perhaps more important, the threat of legal costs may lead technology companies to modify their products to please Hollywood instead of consumers."
The Supreme Court has also ordered the lower court to consider whether peer-to-peer companies Grokster and StreamCast can be held liable under the new standard. StreamCast is confident that it will pass muster under the new, multi-pronged test.
Ernie Miller, blogging in tripletime, has notes from this morning's press conference with members of the Grokster and StreamCast defense teams & amici, many of whom admit they are still digesting the opinon. A common theme: relief that the Sony Betamax standard lives -- and disappointment that it's not clarified.
Ernie's paraphrase of CCIA President and CEO Edward Black's comments contains a memorable turn of phrase, "[If] you consider Sony an umbrella and shield, it is now full of holes."
Here's the ruling itself [PDF], finding that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."
Much to absorb. Back with more soon.
A few key spots for watching the conversation unfold:
The Wall Street Journal Grokster Roundtable, where Ernie Miller argues that despite the "tough" treatment of Grokster and StreamCast, the ruling itself "may turn out to be a significant victory for technology providers in general."
The SCOTUS Blog forum, where C.E. Petit argues that the Court "evaded the biggest question: What is the limit of the Sony doctrine?"
Picker's MobBlog, where Douglas Lichtman opines that the movie studios et al. have a "hollow" victory, "MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation. Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear -- tell everyone that your technology is designed to facilitate only authorized exchange -- and you have no risk of accountability. This is not the standard I was hoping for."
SCOTUS Blog brings the news that the Supreme Court has "ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the Internet."
More details -- including the ruling -- forthcoming.
SCOTUS Blog reports on the Brand X case: "In a 6-3 ruling, the Court decided that cable operators offering high-speed Internet access have no legal duty to open their service to customers of all Internet service providers.
In the cable case, the Court upheld the decision of the Federal Communications Commission that broadband cable modem companies are exempt from mandatory common-carrier regulation. That, Thomas wrote, is a lawful interpretation of the Communications Act, and thus is due deference."
No link yet to the ruling itself...
It also looks to be a very sad day for the reporter's privilege: "The Supreme Court on Monday turned aside pleas by two reporters and a magazine urging the Justices to create, for the first time, a right not to be forced to reveal to the government their confidential news sources. The action means that, at least for the time being, the Constitution and federal common law do not recognize a 'reporter's privilege' of confidentiality. (The Court denied review in Miller v. U.S., 04-1507, Cooper and Time Magazine v. U.S., 04-1508.)"
The gentleman perhaps most qualified to handicap tomorrow's Supreme Court ruling in MGM v. Grokster has done so, for Red Herring, here. Bonus: Mr. Patry will also participate in SCOTUS Blog's Grokster forum.
Update: Meanwhile, Tech Law Adviser's Kevin Heller is compiling a list of blogs where you're likely to see plenty of Grokster commentary tomorrow. Dare we hope?
Speaking of Grokster meta-blogging, Ernie Miller is having a typically thoughtful, typically enjoyable back-and-forth with Seth Finkelstein on the subject. Along the way, Ernie articulates well a point I've tried to make in my own conversations with Seth on the subject of blog A-listers: "It's not about the number of hits you get, it's about the knowledge produced. ...For all this talk of power law distributions and A-lists, the creation of knowledge is not pre-determined."
Despite the power laws, insight from specialists like Seth and Ernie does indeed "rise to the top" and influence the discussion, even when there's no direct "credit" in the form of article quotes/Slashdot links/A-list hat tips/Google love. None of us can quantify influence as easily as we'd like to. A link farmer can put X number of links on his blog "resume," but so what? Seth has put X number of links in the minds of people who care deeply about censorship on the Internet. Similarly, Ernie's blog is quite obviously the progenitor of many of the more nuanced and interesting mainstream media articles about current developments in law and technology. Do the journalists who write the articles link back directly to specific posts at Importance Of...? Rarely. Nevertheless, there's no way you can plausibly argue that he hasn't influenced the discussion.
Grokster day will indeed be filled with blog punditry by people with varying levels of knowledge and expertise in the subject matter. And you can be sure that whomever posts the first comment at Slashdot will have an ego-warming deluge of linky love. But the people who know and care most about Grokster will be elsewhere, listening to the other people who know and care most about Grokster. And that's where we'll see the valuable knowledge production happening, regardless of the number of "hits."
Unless the BSA gets its act together and replaces overstated and misconstrued data with properly researched and carefully presented facts, it will become known as an arrogant organ of propaganda. There is no doubt that it is correct when it calls organised software piracy a major problem for the industry, but it would do well to remember the story of the boy who cried wolf.
It's not about P2P. The P2P genie is irreversibly out of the bottle, with the software already installed on hundreds of millions of computers and developers in countries beyond the reach of American laws. It's the rest of America's innovation sector that will be living with the Supreme Court's ruling. So, as you read what they have to say, ask how it will affect not just Apple, HP, and Intel, but also the next "genius in a garage," like Sling Media or the kids developing urban vehicular grid technology.
That's only the opener. As we are wont to say in the blogosphere, read the whole thing.
The BSA's latest study claims to prove that software patents are of equal importance to SMEs and large companies, a claim that political parties and some media organisations have taken at face value. But does the study really show that SMEs are of equal importance, or has the BSA presented the facts in a misleading way to lead people to the conclusions they want them to draw?
It's Friday so I get to blog a couple of things just because they amuse me:
First off, there's an amusing piece by Thomas Claburn for InformationWeek covering an FTC report on P2P technology. The report is, essentially, a no-op. It says that the technology offers both risks and benefits. Yawn. Tell me something I didn't know. What makes this worth a few minutes of your time is Claburn's way of putting things. He refers to "the entertainment industry's frothy contempt for P2P" - one of the best turns of phrase I've read in mainstream media this week.
Second, there's the current Phillipines fracas. This hit boingboing! Monday of this week but I managed to miss it until I lucked into a PRI piece broadcast on my local NPR station.
The gist is that there is an audio purporting to be a recording of a phone call between Philippine President Gloria Arroyo and an election official. The audio is not of good quality, but it appears the woman (who might be Arroyo) is asking a senior election official to rig the voting. Arroyo claims the recording is illegal and has been doctored. So, this is a political scandal, right? Why care about it, Copyfight style?
Well, it turns out someone digitized the recording into an MP3. Then corruption watchdog group TXTpower put the MP3 up on its site. As a ringtone. And encouraged remixes. According to the PRI story, this is now the most popular ringtone in Manila. Like, wildly popular. And to add to the hilarity, someone has now adapted it for those programmable car horns. So people are tootling around the country beeping out "Hello Garci!" and asking if they will win by more than one million votes. This is too too funny.
Note to SCOTUS: I'm pretty damned sure that the inventor of the programmable car horn had no idea that his invention would be turned into a tool of mass political protest.
Ultimately Congress is likely to be asked to rewrite whatever standard the Court articulates in Grokster. Motion picture studios and recording companies will likely insist on a rule imposing liability on any business that profits from infringement. High tech companies will likely insist on limiting any expansion of liability to businesses that profit from unlicensed peer-to-peer file trading. Under pressure from those industries, Congress is unlikely to draw a new line of general application that differs significantly from the one drawn in Sony. Drawing a sensible and robust line of general application would require Congress to revisit copyright remedies at a fundamental level. Industry lobbyists, seeking quick fixes to meet their immediate needs, will have little interest in such a project. Congress, therefore, will probably do what it has done before: enact a narrow rule that purports to fix the problem but proves unhelpful within months of enactment because technology has morphed in unanticipated ways.
Siva will be writing a reaction piece for Salon after the ruling comes down, just as he did post-Eldred.
Lisa Stone has an audio feature(tte) offering words of wisdom from two hero(ines) in the battle to defend free-speech rights in the digital era: our own Wendy Seltzer and the Stanford Center for Internet & Society's Lauren Gelman. These two need no introduction, but Lisa does a nice job listing just a few things they've done for your rights lately:
Seltzer helped write the EFF's new Legal Guide for Bloggers and Gelman wrote the bloggers' amicus brief in Apple v. Does -- they are, in other words, at the epicenter of ongoing legal efforts to protect First Amendment rights for U.S. bloggers.
Like the Legal Guide for Bloggers, these interviews are geared for a general audience -- you don't need to be well-versed in the law to follow the conversation and learn more about your rights. Check it out.
As this short note over @ SCOTUS Blog says, it has lined up some terrific participants for metablogging MGM v. Grokster when the ruling comes down -- including Derek Slater, who will also be posting for EFF at Deep Links. Another excellent spot to watch: the Picker MobBlog, where Randy Picker, Doug Lichtman, Lior Stahilevitz, Julie Cohen, Wendy Gordon, Jessica Litman, Lawrence Solum, and Phil Weiser will be weighing in.
At the beginning of this week, we learned that a Broadcast Flag amendment might slip past the gates in an appropriations bill. It's easy to see how this could happen. Despite strong opposition to the flag in the Internet community, in many circles it's still considered "non-controversial."
By 6 p.m. on Tuesday, the 27 members of the Senate Appropriations Committee received more than 11,000 emails and faxes. That's nearly 500 faxes an hour. Dianne Feinstein alone received more than 2,600 messages in her inbox. Kay Hutchison, the senior senator for Texas, received 1,441 letters. [emphasis, links in original]
However, it ain't over til it's over. Read the whole thing ... and if you haven't already, TAKE ACTION.
After listening to oral arguments in Blizzard v. BnetD, Seth Finkelstein riffs on the elements that bode well for a smart ruling in a technology-related case -- including the judge refraining from using the h-word: "hacker."
set RECENTCLEVERHACK 'Enable seamless access to podcasts'
set DEVICENAME iTunes
John Borland writes for CNET about a software plug-in called BadApple that lets iTunes users get easy access to podcasts. Apple promised this feature in the next version of iTunes but the mysterious company calling itself BadFruit has decided not to wait. Borland does a little sleuthing and tentatively connects BadFruit back to MP3Tunes.com.
There's a sense that podcasting may soon break into the mainstream world as big media companies like Clear Channel seem willing to invest money in the distribution channel. If iTunes turns out to also be the place that big media companies want to direct people for their podcasts, it's going to place additional pressure on companies that are lining up behind deliberately iTunes-incompatible DRM.
Speaking of iTunes, AppleInsider.com is reporting that a company called Contois Music Technology is suing Apple for violation of its design patent. Contois claims that 19 specific elements of the iTunes interface, menus, and (surprising to me) functionality are in violation of the patent. Those of you old enough to remember the old look-and-feel lawsuits will recognize this kind of claiming - it's just moved to the design patent arena. Anyone familiar with design patents want to take a stab at commenting on this?
The Reg carries a piece by Faultline that gives a few good paragraphs on the actual operation of the DRM systems that EMI and Sony-BMG have announced their intention to use. Pay attention to the bits about what the customer has to do. The user experience for these things matters a lot and it's a good question whether people will voluntarily install an overt copy manager and whether they'll put up with something interfering with their iTunes.
Scrivener's Error has an interesting (and harsh) critique of Stallman's essay (Time is of the Essence). Petit of Scrivener's Error focuses on the limited term of patent. He's right about that, but I imagine that a patent on literary works would have a tremendous effect on the market nevertheless. I suspect we would be looking at much more consolidation among publishers, for example. And a market that is much more expensive to enter.
Richard Stallman has a great piece in the Guardian this week talking about the effects that software patents will have on the EU software industry, and in particular, Free/Open Source Software.
Especially effective are some examples he gives comparing software to other copyrighted works, such as a novel:
A novel and a modern complex programme have certain points in common: each is large and implements many ideas. Suppose patent law had been applied to novels in the 1800s; suppose states such as France had permitted the patenting of literary ideas. How would this have affected Hugo's writing? How would the effects of literary patents compare with the effects of literary copyright?
Consider the novel Les Misérables, written by Hugo. Because he wrote it, the copyright belonged only to him. He did not have to fear that some stranger could sue him for copyright infringement and win. That was impossible, because copyright covers only the details of a work of authorship, and only restricts copying. Hugo had not copied Les Misérables, so he was not in danger.
Patents work differently. They cover ideas - each patent is a monopoly on practising some idea, which is described in the patent itself.
Here's one example of a hypothetical literary patent:
Claim 1: a communication process that represents, in the mind of a reader, the concept of a character who has been in jail for a long time and becomes bitter towards society and humankind.
Claim 2: a communication process according to claim 1, wherein said character subsequently finds moral redemption through the kindness of another.
Claim 3: a communication process according to claims 1 and 2, wherein said character changes his name during the story.
If such a patent had existed in 1862 when Les Misérables was published, the novel would have infringed all three claims - all these things happened to Jean Valjean in the novel. Hugo could have been sued, and would have lost. The novel could have been prohibited - in effect, censored - by the patent holder.
To me the best sign was that Paul Grewal (pronounced "gray wall") of Day Casebeer kept pounding on the law, while opposing counsel Stephan H. Rovak kept pounding on the table, summoning the dread spectres of piracy (the defendants all had legal copies of the Blizzard game software) and copyright violation (all copyright claims were dismissed with prejudice in the lower court).
EFF's action alert, geared to people with senators on the committee, is here. Public Knowledge also provides a number of excellent talking points in an email urging readers to phone their senators
Last time we were waiting for news about the Grokster case, it was Cardozo law professor Susan Crawford who reminded us that there are other court battles that may have just as much, if not more, impact on the environment for innovation (It's Just As Important as Grokster). This time around, Declan McCullagh picks up the gauntlet, explaining why we should all be concerned about the outcome in Blizzard v. BnetD, the case in which open-source software developers are fighting for the freedom to reverse-engineer Blizzard video games in order to customize/extend the gamer experience:
The U.S. Supreme Court could release its decision on Monday in the much-anticipated Grokster case, which will determine whether file-swapping networks are legal to operate. Yet another, unrelated lawsuit before a federal appeals court taking place on the same day promises to be just as important.
The 8th Circuit Court of Appeals in St. Louis is set to hear arguments Monday in a case that may decide how the Digital Millennium Copyright Act, or DMCA, applies to computer software and the important practice of reverse engineering.
...Now that the case is before the 8th Circuit, the ideological divide highlighted in the Grokster lawsuit is repeating itself. Lined up on one side is the Electronic Frontier Foundation (which is also providing free legal assistance), the Institute of Electrical and Electronics Engineers, the Consumers Union, Public Knowledge, and some law professors. On the other: the Entertainment Software Association, the Recording Industry Association of America, the Motion Picture Association of America, and law professors.
Copyright buffs, of course, may remember that the DMCA includes limited protections for reverse engineering.
The text of the law is hardly clear, but it seems reasonable to conclude that [the lower court] was wrong and the DMCA should not apply. BnetD was invented to offer people who had bought legal copies of Blizzard games new ways to enjoy them.
While our Mr. McCullagh may be overstating the case a bit -- this isn't a battle where we stand to lose Betamax, after all -- it will certainly clarify just how much of a chokehold the DMCA has on innovation, interoperability, and free competition in an exploding market sector.
Two more must-read pieces on the case:
Blizzard v. BnetD Hearing Tomorrow Morning: "I hear you cynics saying that the courts let the DMCA trump everything, and in this case you may prove correct, but don't forget that the issue of the DMCA and the aftermarket was also at issue in the Lexmark and Skylink cases, and those cases worked out fine." [Groklaw]
Oral Arguments in Blizzard v. BnetD: "I think there is a reasonable chance for some sort of victory here as the lower court probably went too far. Of course, I wouldn't want to be arguing the case today ... the Grokster decision might have some impact (though it might not)." [Ernie Miller @ Importance Of...]
Update (2:30 p.m.): A few cautious words from our own Jason Schultz, who represents the programmers in the case: "The judges were struggling with the right questions. They're trying to balance copyright interests with the right to reverse engineer. They clearly recognized the public interest in reverse engineering, but they admitted this would be a hard case to decide."
A recording of the arguments will be available tomorrow, here.
One might think that open access to high resolution 3D scans of Michelangelo's David and other cultural heritage works would be a goal of the works' trustees. Nope. They're busy figuring out how to keep people from "pirating" the data.
Cringely's latest column is a mishmash of observations and speculations on the Apple-Intel news, including setting the record straight on the much-maligned "Osborne effect," discussions of various chip architectures, and an interesting speculation that Intel has more to gain from Apple signing onto their hardware-locked platform than Apple does. Theory being that since Microsoft backed Longhorn off of some of those
