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AUTHORS

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

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

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

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Monthly Archives

June 30, 2005

James Boyle on EU Software Patents: Question Your Assumptions

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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.

Previous Copyfight coverage of Professor Boyle's quest for IP sanity: James Boyle on Copyright Stupidity, James Boyle: Public Information Wants to Be Free, and Judging IP Policy on Its Merits.

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

Is Bram Cohen Guilty of Grokster "Thought Crime"?

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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.

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

Home Taping Saves Shared Culture

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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.

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

Robot Renegade IP Maximalists

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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 Grokster Sturm und Drang.

Here's a taste:


Gilbert, Sullivan, and ID Cards: A fine musical "tribute" to the plans to introduce ID cards in the UK (Flash).


Trailer for "Alternative Freedom" Documentary: "In a WORLD without LICENSES...": Richard Stallman, Larry Lessig, DJ Dangermouse, and Jason Schultz fight IP maximalists...robot renegade IP maximalists.


Both links are well worth the follow.

[Robot renegades pop cultural reference here.]

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

June 28, 2005

Thou Shalt Not 'Ster

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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.

Update: John Palfrey expresses simply and elegantly the central point of this over-long post:


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.

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

What Wall Street Tells Us About Grokster

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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.

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

Whither Movies?

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Posted by Alan Wexelblat

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.

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

June 27, 2005

There, Isn't That Better?

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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.

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

That's the Question

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Derek Slater @ Deep Links: "What is 'inducement'?"

Later: Derek follows up here,here, and here.

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

Fred von Lohmann on How to Read Grokster (Again)

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This was Fred von Lohmann's thinking before the Grokster ruling. Here's Fred's thinking now:


Let's measure today's opinion against the chief issues mentioned in the "Grokster Reader's Guide" last week.

  • 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.


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

And in the Other Corner...

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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."

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

Grokster Q & A with Gigi Sohn

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Susan Crawford: The Supremes Got Grokster Just Right

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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.

Over @ the SCOTUS Blog forum, C.E. Petit disagrees:

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! :-) "

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

EFF on the Supreme Court Grokster Ruling

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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.

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

And Now, a Word from the Grokster Defense

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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."

Later: Here's the audio recording of the conference.

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

MGM v. Grokster -- What Happened?

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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."

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

Supreme Court Reverses Grokster -- Unanimously

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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.

Comments (5) + TrackBacks (0) | Category: Laws and Regulations

Open Access Denied

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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.)"

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

Story Updates

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Posted by Alan Wexelblat

Quick updates to two stories I blogged in the recent past:

1. The BBC reports that Brazilian Health Minister Humberto Costa has given Abbott Laboratories ten days to either agree to lower its prices or allow generic copies. If Abbott does not agree, Brazil will give the go-ahead to a local generic maker.

Previous blog entry: Patent Suspension? Or Let Them Die?
Response from Ernest Miller and commentary exchange with me: Drug Patent Suspension

2. Philippine President Gloria Arroyo admitted over the weekend that she did indeed make the now-famous "Hello Garci" telephone call that has become a ringtone sensation in Manila. She called it a "lapse in judgement" but still denies election meddling.

Previous blog entry: Friday Fun Stories

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

June 26, 2005

On Grokster Punditry and Power Laws

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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."

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

June 25, 2005

More on the BSA's 'Statistics'

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Posted by Ernest Miller

Yesterday I wrote about the Business Software Alliance's less than sterling regard for the truth (Lies, Damn Lies and BSA Statistics). ZDNet UK made the same call yesterday (Lies, Damn Lies and Statistics).

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.

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

How to Read the Supreme Court Ruling in Grokster

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My EFF colleague and StreamCast lead counsel Fred von Lohmann gives his take on how to "read" the Supreme Court's ruling Monday in MGM v. Grokster (Grokster Reader's Guide):


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.

Comments (7) + TrackBacks (0) | Category: Laws and Regulations

June 24, 2005

Lies, Damn Lies and BSA Statistics

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Posted by Ernest Miller

Is the Business Software Alliance accused of using misleading statistics again? Is the Pope Catholic?

Last time it was copyright infringement estimates (The Economist Rails on Flawed BSA Piracy Study). Now, ZDNet UK has published a commentary accusing the BSA of playing fast and loose with software patent statistics (BSA Figures Do Not Add Up).

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?
What do you think the answer is?

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Friday Fun Stories

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Posted by Alan Wexelblat

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.

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

No, Really. No Broadcast Flag This Time

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Posted by Alan Wexelblat

Declan reports for CNET that "not one member of the Senate Appropriations Committee proposed an amendment authorizing federal regulators to mandate the broadcast flag." Could still appear when the bill hits the full Senate floor, though. What was that about the price of liberty being eternal vigilance?

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

June 23, 2005

The Waiting Is the Hardest Part, Part II

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Siva Vaidhyanathan puts a bit more meat on the bones of the news that Grokster isn't coming down today, including pointing us to The Sony Paradox -- copyright guru Jessica Litman's exploration of how we got here and where we're going:


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.

Update: Looks like we have a firm date of Monday for the ruling, provided there are no atypical carry-overs for reargument.

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BlogHer on Bloggers' Rights

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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.

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The Waiting Is the Hardest Part

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Psst - Copyfighters Meta-Blog Grokster

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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.

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

June 22, 2005

Broadcast Flag Hasn't Snuck In Yet - Danger Hasn't Passed Though

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Posted by Ernest Miller

On Monday I noted that EFF was warning the public about Hollywood trying to sneak the Broadcast Flag through the Senate as part of an appropriations bill (Broadcast Flag to Sneak Through Senate Tomorrow?!?).

We now have an update from EFF: Flag Day

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."

But that was Monday evening.

Within the space of a few hours, the committee was Slashdotted, BoingBoinged and Instalanched.

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.

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

June 21, 2005

Podcast in iTunes Now - Why Wait for Apple?

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Posted by Alan Wexelblat

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.

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

Scrivener's Error Replies to Stallman

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Posted by Ernest Miller

Just below, Jason Schultz links and excerpts Richard Stallman's recent piece in the Guardian (Patent Absurdity).

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.

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

If Literature Was Patentable, Would Great Novels Be at Risk?

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Posted by Jason Schultz

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.

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June 20, 2005

More Reports from the Blizzard v. BnetD Oral Arguments

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From Groklaw:


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).

Previous relevant Copyfight coverage is just below; an October 2004 IT Conversations podcast featuring Ernie Miller, Seth Finkelstein, and Michael Madison discussing the case is here.

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

Broadcast Flag to Sneak Through Senate Tomorrow?!?

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Posted by Ernest Miller

BoingBoing is warning that the MPAA is trying to sneak the Broadcast Flag through the Senate in a giant appropriations bill (URGENT: Call your Senator RIGHT NOW or Live With the Goddamned Broadcast Flag Forever!). They have a handy list of Senators and their phone numbers for those who are on the subcommittee. Call, if you can.

cross posted to The Importance Of...

UPDATE 1740PT
From EFF: You Have 48 Hours to Stop the Broadcast Flag

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

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Blizzard v. BnetD - Just As Important As Grokster?

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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...]

Given that oral arguments are today, we may soon have an update. Stay tuned.

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.

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

More IP Maximalism Than You Can Shake a Stick At

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First it was cakes, now it's pinatas:


The LA Times has a very interesting story on the lawsuits by big entertainment companies against one of the dirt-floored businesses in central Los Angeles that sells pinatas in the image of characters subject to copyright and trademark protections. I am quoted in that story as saying that a group of large entertainment companies have to sue these tiny businesses, which apparently have revenues often less than $50,000 per year. This is not my view. ...As with most interesting legal questions, there are two or more sides to any set of facts. ...It is almost certainly the case that executives of these companies felt compelled to enforce these rights by issuing cease and desist letters, seeking to get the infringement to stop without going to court, and then to file suit against a handful of the pinateros.

But far from thinking that these executives are compelled to make such a decision, I think it's absurd to have filed them.

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June 17, 2005

June 16, 2005

Let Them Eat Cake

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A lovely mini-essay on copyright, culture, and cake, by our own Jason Schultz, written in response to a discussion about the same over @ BoingBoing:


As an actual copyright and trademark attorney, I feel this sort of discussion highlights exactly where our notions of "property" and "culture" cause confusion and tension between what the law is, what our intuition is, and what we wish the world was like. Most of us probably wish that we could easily go into our local bakery with our favorite comic or cartoon character and have it put on a birthday cake for our child or best friend. Sure, we wouldn't mind paying a bit more, if it were easy and relatively cheap. However, because the copyright maximalists have been able to frame copyright in terms of "property", this reality is increasingly difficult to achieve. Property rights are generally thought of as absolute and impenetrable, e.g. my favorite San Francisco anti-parking sign that says "Don't even *think* about parking here!"

Yet kids love culture, as we all do. And their love of copyrighted and trademarked characters helps make those characters valuable, just as the creators' inspiration and skill have. Consider if no child loved Dora the Explorer; how valuable would the copyrights and trademarks in the character actually be? Not very. Yet the love and obsession of fans do not garner any "property rights" in the character or any rights at all, according the maximalists. Even those willing to pay to use their favorite characters are often chilled from doing so because the maximalists argue they must come and beg permission from the copyright owner or face up to $150,000 in fines for their sins and indiscretions.

Does this mean the creators of the character should have no rights?

Certainly not. But it may mean that they shouldn't have absolute rights. In theory, that is what "fair use" is for, to balance out the rights of the creator with the rights of the public to enjoy that creation, especially in a private world that does not compete with the creators' business. In the case of Dora, that is the making of commercial cartoons and books, not cakes. The fact that Dora is popular on cakes comes from her popularity among her fans, not the skill of the hand that draws her or the voice that speaks her words.

Finally, all too often, we see a perspective like Tshaka's, where the argument is made that if you don't enforce your rights, you lose them.

Nothing could be further from the truth in this context, even for trademarks (i.e. the only time you lose your trademark is if it becomes generic for the class of goods you sell; no one would ever start calling cartoons "Doras" and birthday cakes aren't even in the same class of goods). What Tshaka is really worried about, it seems to me, is a loss of *control* over the use of one's creations. The idea that someone other than the creator might actually make use of the character without permission is what drives copyright maximalist authors, owners, and advocates crazy, not loss of rights or even, often, compensation.

It is this battle for control that is at the heart of the copyright wars and little else. From the perspective of consumers and fans, characters like Dora have become part of our lives and we shouldn't be ashamed or intimidated from enjoying that fact, even if it involves putting their image on a birthday cake. From the perspective of the Copyright Maximalists, however, even a "Let them eat cake" policy is far too lenient and infringing of their rights.


Update (June 17): More commentary from the Copyfight crew, Ernie Miller's post, Birthday Cakes Are Nature's Way of Telling Us to Reform Copyright, which points to Wendy Seltzer's take, Of Copyrights and Cakes.

Comments (2) + TrackBacks (0) | Category: Big Thoughts

The Church of Copyright

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Posted by Ernest Miller

Responding to a post of mine on The Importance Of... (Record Companies Intend to Make Criminals of Us All), Prof. Michael Madison describes three different groups that will have different responses to the recording industries efforts to make sharing music with friends and family illegal (Casual Piracy). The names are mine, but seem to fit his structure:

  • Copyright Church Reformers
  • Copyright Church Fundamentalists
  • Copyright Unitarians

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PSP Hacked, Nobody Surprised

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Posted by Alan Wexelblat

I feel like I should probably just prepare a "the street finds..." generic posting and I could just slot in $DEVICENAME and $RECENTCLEVERHACK. The latest entry would be Sony's PSP (PlayStation Portable) and a clever (if potentially dangerous) hack of switching cards while the system is powered up. This appears to let people circumvent at least some of the extremely tight controls Sony tried to install to permit people to play only "authorized" games. As with many initial cracks, this one is likely to remain impractical for general use. However, we can expect subsequent cracks to be easier and more home-gamer-friendly.

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Oxford Lucks Out

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This is relatively old news, but we haven't shared it yet with Copyfight readers: the Berkman Center's Jonathan Zittrain is headed to Oxford to lead its Oxford Internet Institute (OII). I'm very proud and happy for him -- and it's very smart move (natch) on Oxford's part. Thankfully, the Berkman Center isn't losing him entirely:


He will coordinate a significant research and teaching relationship between the two centres, and become the Berkman Visiting Professor at Harvard. His recent research includes the study of Internet filtering by national governments, the role of intermediaries as points of control in Internet architecture, and the taxation of Internet commerce.

Bravo, Jonathan.

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June 15, 2005

Rush Limbaugh: Copyfighter?

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Posted by Jason Schultz

Looks like Rush Limbaugh is a copyfighter at heart. Check out his rant yesterday about the restrictions on podcasting and CD copying:

RUSH: There are some things that we can't influence yet [in podcasting] like music because of copyright problems. I continue to hear from people. I guess this is just a testament you have to explain things a number of times. I continue to hear from people, "Well, other shows..."

I read that and I say, "Pfft. What other shows?"

"Other shows have music."

Uh, I don't know what to tell you, folks. We have a battery of attorneys here, and the battery of attorneys has dug deep, and they've given us their opinion on this and it's pretty deadlocked solid. There's nothing we can do about it because of the fact that if we included music, even snippets, that we would be effectively be distributing other people's property, copyrighted property without compensation. It's just that simple. Now some of you have said, "Well, now, if we download stream every day if we listen to the program live on the Internet we get the music there."

...

So here's what I did because I continue to get so much e-mail about music and the podcasts. I went to some of my partners and I said, "I want you to shoot me straight. Is this really a legal opinion or are you just telling me this because it's cheaper?" You know, I don't care. If it offends them it offends them. "I want to know the truth. Is this really the truth or are you just doing this because it's cheaper to do it this way?"

They were righteously indignant and offended and they said, "No, it has nothing to do with that. The cost is prohibitive." I mean there's no system set up for this kind of thing yet. We're away ahead of the curve to do this legally. I can't explain the people that are doing it in a way that we have been told is illegal, and I can't explain why they're doing it, and the fact that they are doing it does not give us the confidence that we could do it ourselves. We have a big legal team that's looked into this.

But I just want to tell you we're continually working on it, which at this point simply means monitoring developments in this whole copyright and piracy law. I know the Millennium Copyright Act is what this is all about, and until that's changed, none of this is going to change. In fact I just saw a story in my RSS reader today that Sony is coming out with a new system to copy-protect their CDs. There's software on their CDs that will allow a maximum of three dubs, three copies, and then it shuts down. So if somebody goes and buy a CD, they can copy it three times, but that's it and it's not on all their CDs. It's a new technology that they are embedding in the CDs, and of course the DVD industry has gotten even much tougher than the music industry has, but it's a huge deal and we have looked at it in every which way and that's what we have been told by the legal eagles. Whatever anybody else is doing out there is of no consequence to us. Based on what we have learned anybody else doing this is doing so at risk, and that's as much as I will say about it.


For background, see Ernie Miller's Rush Limbaugh to Launch Podcast on June 3rd - No Music Though.

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

United Way CTO Fires Salvo at Fundraising Patents

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Posted by Jason Schultz

Michael Schreiber, head tech over at the United Way of America, has published a scathing editorial about the nasty impact that business method patents could have on the future of non-profit/community service organizations:

Consider what the future looks like for nonprofits operating in a landscape where activities as important and efficient as online fundraising are patented by one company or even a few companies. Nonprofits face a few scenarios, and none of them are good:
  • Divert a greater percentage of every dollar raised to cover license fees just to operate — money that previously was earmarked for and still needs to go to programs and services making a positive difference in the lives of constituents.

  • Settle for other, less effective and efficient technology solutions to avoid the higher cost of patented solutions as well as the threat of being sued.

This certainly is not how donors envision their contributions being used. Donors do care how their money is leveraged to achieve sustainable societal change.

Nonprofit organizations exist to address complex social, environmental, and educational challenges. The last thing we need is another structural impediment like business method patents that could seriously distract us from the creation of tangible and sustainable change in our communities.

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

BSA Frustrated that People Actually Analyze Their Copyright Infringement 'Statistics'

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Posted by Ernest Miller

A few weeks ago, Jason Schultz noted here that The Economist had found the BSA's copyright infringement statistics laughably inflated (The Economist Rails on Flawed BSA Piracy Study). Well, the BSA has responded in a letter to the editor, according to ArsTechnica (BSA Disgusted with Critiques of Their Inflammatory Piracy Loss Methodology):

SIR – Your article on software piracy was extreme, misleading and irresponsible ("BSA or just BS?", May 21st). The headline was particularly offensive. The implication that an industry would purposely inflate the rate of piracy and its impact to suit its political aims is ridiculous. The problem is real and needs no exaggeration.
Well, that shows The Economist, doesn't it? They better back off on their analysis or the BSA might respond with another empty denial.

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

June 14, 2005

EMI Joins BMG in Customer Harrassment Program

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Posted by Alan Wexelblat

Back at the start of June I noted BMG's announcement that it's going to DRM-cripple more of its music disks. Now EMI has decided to jump on the wagon. (*)

The story by Jon Healey and Charles Duhigg has a smarmy condescending tone but covers the essentials. Notably, this tactic is aimed at the casual copier (read: customer), not the really serious pirates. Note that it's still incompatible with iTunes.

Most importantly, note that if fans sit by silently, the Cartel will take that as an OK to proceed. I suggest you do not sit silently. Make yourself heard by taking your dollars elsewhere, by writing to the companies, by creating public ruckus. Blog this, pass it on. Urge the companies to focus on large profiteering bootleggers and call off their war on their customers. Not that I actually expect anything to change, but as the bumper sticker says: "You have the right NOT to remain silent."

(*) use bugmenot if the registration page annoys you.

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

Using the DMCA for "Good"?

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As I note in my post below on EFF's new Legal Guide for Bloggers, Kevin Marks has been thinking about whether conscientous objectors should use the much-maligned DMCA as a tool for justice -- specifically, to fight "spamblogs." Denise Howell says yes; Ernie Miller says no:


We should not be so quick to use law to terminate speech merely on our say so. You say spam, I say free speech (until a court rules otherwise).

Check out the ensuing debate over @ Importance Of...

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

Obviously We're Not Using Enough of Google's Disk Space

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Posted by Alan Wexelblat

Google is getting into the video game. They've got a beta program going that lets you have an Uploader program designed to copy your content to their servers, where they will "host, cache, route, transmit, store, copy, distribute, perform, display, reformat, excerpt, analyze, and create algorithms based on the Authorized Content."

The key here is "reformat, excerpt, analyze" - Google clearly want to try out a bunch of algorithms that will let people search for videos and they need a huge pool of test content on which to try. That's what people will provide. This is pretty typical and expected Google behavior. But wait, there's more.

Check out Section 9 of the Terms of service

9. Payment. You may designate a price for playback of Your Authorized Content in the Uploading Form. In the event We decide in our sole discretion to charge for video playback of any of Your Authorized Content, We will pay to You seventy percent (70%) of the gross revenues, if any, recognized by Google and attributable to such video playback of Your Authorized Content based upon the price you designate. If We incur extraordinary costs and expenses in hosting, indexing and displaying Your Authorized Content relative to its designated price, then We may retain a greater percentage of the revenues in order to defray these costs. If You have not designated a price for Your Authorized Content and We incur extraordinary costs and expenses in hosting, indexing and displaying Your Authorized Content, we may charge a fee in order to defray these costs.

That's right, Google is hooking this into the micropayments marketplace. They've already got the mechanism to handle user micropayments in place with Google Answers so the extra cost to them of adding this feature into the video program is minimal. Seventy percent to the creator sounds like a good deal (anyone know of a place offering better terms?) particularly given Google's "reach" or ability to get very large audiences. Unlike a question, which has a very small audience only one or a few of whom pay, a video can be expected to appeal to thousands of Google's multi-million-per-day unique visitors. If even a few of those thousands are willing to pay, it could mean that videos generate some actual revenue. And if not, Google certainly has the disk space and bandwidth sitting idle. Discussions of 'Googlezon' have included speculations about uses for purchased dark fiber. Now we can see what at least some of it will be used for.

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

June 13, 2005

Do You Know Your Rights?

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Many bloggers don't -- and as a consequence, don't stand up for them. Here's something that may help:


Update: Ernie Miller points to an apropos piece @ Reason: Who Gets to Play Journalist?

Update #2: Kevin Marks weighs in, wondering whether people can/should use the DMCA takedown provision "for good" -- a question I imagine Matt Haughey would answer in the affirmative.

Update #3: Fantastic -- we're starting to get some traction, with more and more bloggers pointing others to the guide. We're going to see many more legal challenges for bloggers as they get more attention (and power), and people need to be armed with as much information about their rights as possible.

Dan Gillmor make an excellent point: "Think bigger than blogging, however. This is important for all people doing bottom-up media, of whatever sort."

Yep. "Blogging" is only a term for how people are self-publishing on the Internet these days. This is about safeguarding our freedom to communicate with one another via the Internet.

Update #4: Viva la fair use! Chris Locke, the master of broken rules, links to the legal guide, which of course contains information about why he's able to break them.

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

The Street, in Real Time

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Posted by Alan Wexelblat

Want to watch the street find its own uses for things? Start at this story about CVS selling "one time use" digital camcorders. The gist is you buy it, record video on it, preview on a tiny on-camera screen, then bring it back to them and for another fee they'll put your video on DVD. This is a very typical "how people who value control above all else" think business model.

Now go to this page of the I-Appliance BBS to see how fast people dissect this beast.

It's important to remember that no matter who you are - CVS, Microsoft, the Cartel, whoever - most of the smart people in the world don't work for you. It really would be better all around if more people would keep that in mind.

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

No Demonstrable Link Between Filesharing and Lost CD Sales

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Whaddaya know [Wired]: "File-swapping networks alone are not to blame for the recording industry's woes and might plausibly be converted into legitimate channels for distributing music, one of Europe's most influential economic bodies has concluded."

The Organisation for Economic Co-operation and Development (OECD) study.

A previous post by Alan on this issue that's worth a re-read: The Revenge of Sapir-Whorf: "There were no WMD in Iraq, there was no cocaine on that boat (*), and music sharing does not cost artists money."

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

Free Science in the Public Interest

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Posted by Alan Wexelblat

One of my favorite corners in the Copyfight is ongoing efforts to put scientific and technical information into the public domain in highly usable forms (e.g. Public Library of Science). The latest candidate to get my attention is this page of resources on the science and teaching of evolution, produced by the National Academy of Sciences.

The page provides ways to order different versions of the information, such as printed paperbacks and purchasable PDFs, including chapter-at-a-time a la carte. Free samples are available. Or, if you just want to read online you can get free HTML versions, including a clever (but not terribly useful) "skim" link that gives you a few sentences at a time so you get a flavor for the material.

Much of this is aimed at teachers, who are obviously deeply embroiled in the evolution/creationism debate and NAS are not shy about their views ("the NAS states unequivocally that creationism has no place in any science curriculum at any level"). But setting aside politics for a moment, this is a very interesting way to offer different accesses to published material.

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Your locked-down digital future

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Posted by JD Lasica

Thanks for having me guest-blog at Copyfight for the past week. I'll be traveling this week, and visiting the Berkman Center for the first time.

One note of warning for the months ahead: Keep an eye on cross-industry standards being worked out behind closed doors. Hollywood is pushing hard to require things like "certification" and "renewability" in the next generation of DVD players and other digital devices. The players you own would obey the Hollywood studios' directives, without your even knowing about it.

I paint the grim picture in the latest free excerpt from Darknet.

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

June 11, 2005

iTunes Isn't Number Two, After All

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I was instinctively skeptical of NPD's claim that iTunes has the #2 spot, and it turns out for good reason:


FWIW: the NPD report is basically worthless. The report ignored BitTorrent and eDonkey, the most popular P2P services. The report also treated all users equally; doesn't matter if you've downloaded one song on iTunes and one thousand on Limewire, you're regarded as a single user for each. Saying that iTunes is as popular as Limewire on that basis seems just a bit foolish.

The report is nothing more than pre-Grokster decision ramp up.

(See also: Apple vs. P2P: One Glib Study and Follow-Up: Apple vs. P2P)


(Thanks, Derek!)

Comments (1) + TrackBacks (0) | Category: IP Markets and Monopolies

June 10, 2005

Taking Derivatives, or How Many Copies Fit on a Disc

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Posted by Wendy Seltzer

Copyright Prof William Patry addresses derivative works today on The Patry Copyright Blog. He gets to the thorny intersection of the Section 115 compulsory license and newer multimedia discs, such as Super Audio and DualDisc, that contain multiple versions of the same recording.

Issues for compulsory licensing are presented because there is more than one layer on a single Super Audio disc. Two principal questions are: (1) whether some of these layers are merely "transfers" that do not represent new authorship, or, whether some, such as remixes for 5.1 channel surround sound, are derivative works for which a separate compulsory license fee is required unless (2) even though there are as many as three layers on a given disc (all perhaps with different derivative versions), the disc is considered to be one "phonorecord" within the meaning of Section 115, and thus one payment only is required notwithstanding that if the layers were separately released they would require three payments.

These aren't just law exam hypotheticals. About the only thing I've heard make record execs steam nearly as much as "peer-to-peer" is the music publishers' claim that they're entitled to double royalties for "copy protected but computer playable" CDs. The music publishers argue that they're entitled to royalties for each copy of the tracks on disc: one set of CD-audio tracks, often poorly hidden from the computer, and one set of WMA or other DRM'd files "meant" for computer playback. It's arguable that end-users have the music publishers, as well as incompatibility problems, to thank for the market failure of copy-protected CDs.

Comments (5) + TrackBacks (0) | Category: IP Markets and Monopolies

Patent Suspension? Or Let Them Die?

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Posted by Alan Wexelblat

In the US we've been trained to think of patents and copyrights as near god-given universal liberties, but they're not. They're specific rights granted by national governments and international treaties. That which is given can also be taken away, and it looks like Brazil is going to do this in an effort to keep more of its people alive.

As I wrote back in March, intellectual property protection can sometimes come ahead of real people's need to live and stay healthy. In specific, the price and availability of anti-AIDS drugs will determine whether millions of people, particularly in poorer countries, live or die.

Brazil's lower house of parliament has approved a bill to suspend patents on all antiretroviral drugs in order to permit local companies to make cheap generic copies of the drugs. The dispute centers on four specific drugs whose manufacturers have refused to give Brazil price discounts or to license the patents.

Brazil's problem is particularly acute because it has a nationwide free-drug program that attempts to reach all who need the medicine. These four drugs alone eat up 63% of the program's budget. According to research by the Brazilians, one of the drugs is presently being sold for 9.7 times its production cost. Of course the makers cry "research" and fail to mention that they spend more on marketing and advertising than they do on total R&D but let's not get into that. The question at issue once again is - where does intellectual property protection rate when stacked against 155,000 lives in Brazil alone? Should governmental grants of IP protection be absolute or be revokable?

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

iTunes Now Number Two

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Posted by Alan Wexelblat

An unbylined story on CNET points to a study by NPD Group indicating that iTunes is now the second-most popular music download site. Most of the popular sites, including #1, remain free P2P sites. But Napster and RealPlayer store also made it onto the list, indicating a growing parity of interest. I'm glad to see this, and sad that it didn't happen five years ago.

Update: The story has hit a bunch of major media outlets that give fuller coverage. For example, Mtv.com gives the list and some background. The award for "Biggest BS with a straight face" has to go to RIAA CEO Mitch Bainwol who is quoted as applauding "A vibrant, competitive marketplace for digital music is a good thing for both fans and investment in new art."

This from an organization that has made its mark stifling digital music marketplaces (see my comment below), engaging in price fixing, and suing fans as fast as possible.

Comments (4) + TrackBacks (0) | Category: IP Markets and Monopolies

June 9, 2005

The cutting edge of licensing rights

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Posted by JD Lasica

Like many Copyfighters, I've come to rely on Creative Commons over the past few years to fine-tune my copyright. Creative Commons is prominently featured in "Darknet," and they're one of our major partners at Ourmedia.org. (The Guardian UK today calls CC and Ourmedia "cousins"; ah, the joys of familial bonds.)

I thought I'd ask Copyfight readers if you have any insights into two licensing areas.

1) Of all the Creative Commons licenses, none enables the creator of a work to allow her work to be used for commercial purposes but to be compensated for it.

There are several ways to go with this. The copyright owner grants an agent to negotiate on his or her behalf with a third party (such as a cable network or portable device manufacturer). The license provides that the creator is paid a fixed percentage of revenues generated.

A colleague and I approached the good folks at CC, who told us this kind of license wasn't in their game plan. So we're thinking of ways of making this happen outside of the CC framework.

Thoughts? Anyone interested in helping us devise a new kind of license that compensates the copyright holder? I could see rolling this out on Ourmedia in a few months, and thousands of people signing on.


2) On a few occasions, people have asked me whether they have the right to take photographs of individuals or children or teens in public places and publish these photos to the Web. The person or persons in the images are identifiable, but the photographer is doing it for creative, not commercial, purposes.

In some cases, they assign a Creative Commons license that allows derivative works to be made. Other times, they donate the image to the public domain.

It's happening today at sites like Flickr (and maybe Ourmedia, I'm not sure about that). If you tell the amateur photographers at Flickr that you need a release form from the subjects before posting the photos, they'll look at you like you're crazy. That's where the culture is moving.

I asked Creative Commons whether a photographer can assign a CC share-alike license to a batch of photographs if the subject in the photo is clearly identifiable, or whether you always need a release form (which no one except professional photogs uses).

Their answer was that it's a complex issue and not an area they generally get involved in.

I just bought a terrific new digital camera and, like millions of other people, now have the ability to snap amazing, beautiful candids of street scenes, public parks and other places where people hang out in public. My friend has a good lens on his digital camera and has snapped some terrific close-ups of kids playing soccer on a public field. Years ago, they might have appeared as a tiny fuzzy image. Now you can see who they are in full gigapixel glory.

In California, there's a right to control the use of your own images. Other states have other statutes, but most probably don't.

So. Any thoughts or guidelines about when it's permissible to donate images of identifiable people to the public domain or under a sharealike license without obtaining a release?

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

Rep. Barton Defends Fair Use

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Posted by Jason Schultz

Via Roll Call, an interview with Rep. Joe Barton, Chair of the House Energy and Commerce Committe:

ROLL CALL: And copyright infringement?

BARTON: Are you talking about fair use?

ROLL CALL: Yes, I'm taking about the ability of people to steal movies,
music, all that stuff. Do you think you've done as much as you can do?

BARTON: Pure copyright infringement is Judiciary and some Energy and
Commerce. I want to protect our creators, the creative talent in this
country, the movie producers and the television producers, and the
musicians. I have great respect. ... I wish I had that talent. I don't, so I
respect those that do. And anything we can do to go against piracy I'm for.
Where I'm a little bit different, I believe that [Rep.] Rick Boucher
[D-Va.]; you buy a video, you buy a CD, you do have the right to make one or
two copies for your own personal use. That's called fair use. And we've
always allowed people, under the older technologies, to make one or two
copies. The problem when you get to the digital technology is that you can
make a thousand perfect copies. So, the Judiciary Committee ... their
solution has been to outlaw the act of copying. So you just can't make any
copies. That's the Motion Picture Association ... that's their position. No
copies. And so Boucher and I's position is, let's find a way to make a few
copies and then that's it - not for commercial purposes, not for resale -
just for your own personal use. And the technology is debatable. Some people
think the technology is there to do that. The CD people are putting that
technology in their CDs. The video people have not yet agreed that they can
do it, although I think they can. So that's an in flux issue.

Comments (3) + TrackBacks (0) | Category: Laws and Regulations

Grease and Desist: The Musical

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Posted by Ernest Miller

Prof. Michael Madison brings our attention to a case in which a stage production of Grease was halted by the rights organization because the female cast was going to play female students in an all-girls school putting on a performance of Grease. Got that? Theatre Follies. So, instead, they will be performing Grease and Desist,

the "gleefully, bad ass, unauthorized, '50's rock musical cabaret" that claims "If the creators of South Park and Charles Ludlum had met late one evening in a dark, smokey bar, done shots of jagermeister and danced -- THIS IS THE LOVE CHILD THEY WOULD HAVE HAD."

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

June 8, 2005

The legacy of Jack Valenti

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Posted by JD Lasica

I've been holding back publishing the interviews I conducted with key figures in the copyright wars until now for a number of reasons, but chiefly because it presents a much clearer prism to see the arguments on each side lined up against each other contemporaneously.

Today, as a very small gift to Copyfight, I present to you, ladies and gentlemen, a full text interview with the legend himself: Jack Valenti.

Now, our friend Jack stepped down as head of the MPAA last September, but his influence lives on and, more importantly, the way he framed the public debate on these issues remains intact. His successor, Dan Glickman, is now finding his voice, but he has yet to engage the public's imagination as fully as Valenti did.

In short, Valenti's views still matter.

You've read accounts of Valenti's Congressional testimony over the years, and his one-on-one with Derek Slater for the Harvard Political Review in 2002 (tho I can't find the link!). Copyfighters like Derek and Ernie Miller (who earlier deconstructed an abbreviated version of my interview with ol' Jack) have pointed out the inconsistencies between Valenti's arguments and the realities of the digital world.

It's a world view that needs to be challenged at every opportunity, because the underlying assumptions have been internalized by the powers that be on Capitol Hill. Valenti paints this as a battle between those who believe in copyright and those who believe in thievery, when of course that's not the case at all. He argues that the problem can be solved through technological innovation, when what the MPAA is really after is a form of trusted computing that rewires the next generation of personal computers to enshrine a form of copy protection into the machines so that they obey Hollywood, not the computer's owner. His view of fair use -- that it doesn't exist except as a legal defense -- is perhaps the most dangerous, for it threatens to cramp our visual culture and stifle an entire generation of grassroots media.

The deeper we understand what animates the entertainment powers, the more effectively we can form an uplifting counter-view of the new digital landscape.

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

A Copyfighter's View of the Apple Move to Intel

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Posted by Alan Wexelblat

(The following is rank speculation, referred to by a friend of mine as speaking ex recto. I have no secret sources nor access to any insider info.)

Apple's switch in hardware platforms is about the transformation of Apple into a media company. It will probably still make hardware, and it will probably still dominate certain niche market, but those markets will be ones that matter in Hollywood, like digital editing.

There are lots of reasons for this, and you should expect to see Apple beating the snot out of MS in the media business in the short and medium terms. I'm not so sure about the long term; people who make long-term bets against MS tend to come up empty. Part of the key advantage that Apple has is Steve Jobs. He runs Pixar. He can call up the head of any major studio and get in to see the right execs. They like him - he's one of them. They hate Bill, who they see as trying to muscle in on their business. If you have any doubts about this, look at the number of Hollywood films and TV shows in which characters are seen to use Macs vs those in which they use identifiable PCs. In Hollywood an enormous amount of business is done on handshake deals; Jobs knows which hands to shake and how to speak the language of the people whose hands he needs to shake. He has a track record with the music industry, too, though that relationship is a bit rockier.

The second part of this battle is for the home entertainment center. MS actually has a jump here with its PC customized for that marketplace and Apple needs a major move to catch up. Apple's wedge strategy will be the Mac Mini and Airport, but they're both too damned expensive. Would an Intel-based Mini be significantly cheaper? I dunno. What I do know is that iTunes is also beating the snot out of all comers and is a significant driver for hardware sales. If Apple doesn't have a digital movies deal in place and isn't providing movie/TV content to homes by Xmas this year I'll be stunned. The content for this service will be provided by those execs that Jobs has had lunch with.

I also fear that Apple is signing up for the Intel hardware lockdown. Hollywood, like the rest of the Cartel, is insanely paranoid about its content being "stolen." Intel is offering to wave a magic wand and pretend to make that problem go away. Apple couldn't afford to leave that card solely in MS's hands; by signing up for this, they've neutralized a major advantage Redmond used to have.

It's also true that, to some extent, they're Osborning their hardware sales. But by showing that OS X runs *now* on Intel hardware, Jobs is sending a strong "Don't Panic" message to software developers. Relax, he says, you won't notice any difference. We've got the OS running there now. The low-level guys like device drivers will have to do some scrambling, but Apple will help them.

Along the way, Apple is taking a nontrivial shot at Microsoft's PC-based gaming business. That home entertainment center needs to play games, too. Right now, very few games run on Macs. A few big names, but nowhere near the title span that PCs have. But if Macs are on Intel hardware then game companies have to do much less work to get their games over. And as additional incentive, if Apple has the "in" with Hollywood then it's one step away from the game companies' wet dream of having a major motion picture deal, with all the revenue and licensing dollars that implies. Games' core home computer market won't move off the PC, but game studios now have much more incentive and much lower barrier to entry for getting their games onto Apple boxes.

You can't look at this announcement as a bullet. It's a full broadside, and the impacts are going to be felt over a large range (see Donna's entry below for more big thoughts). It's also going to hit targets other than Microsoft; one likely impact will be on Sony, which also plays in the home-entertainment spaces and which can be seen as a partner and competitor for both Apple and Microsoft. As far as I know they haven't had anything official to say on this topic yet.

Comments (5) + TrackBacks (0) | Category: Big Thoughts

It's Not About the DRM, Stupid

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Princeton computer science professor/freedom fighter Ed Felten and trusted computing expert/freedom fighter Seth Schoen each weigh in on Apple's switch to Intel, which has everyone wondering whether we'll see more DRM in future Macintosh computers:

Ed says no: "Though they’re not talking much about it, savvy people in the computer industry have already figured out that hardware DRM support is a non-starter on general-purpose computers. ...If DRM is any part of Apple’s motivation — which I very much doubt — the reason can only be as a symbolic gesture of submission to Hollywood."

...but Seth isn't so sure: "We don't know yet. Using Intel platform features for DRM requires software support; since Apple appears set to continue its strategy of close control over both Macintosh hardware and the MacOS operating system, it has a lot of choices to make. Apple's current position on DRM in iTunes doesn't offer a lot of encouragement."

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Linkable + Thinkable: The Ernie Miller Special Edition

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Three choice posts from the unstoppable Mr. Miller, who's on yet another roll:

Comments (2) + TrackBacks (0) | Category: Big Thoughts

June 7, 2005

A Photofinish for Copyright's Unintended Consequences

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Posted by Wendy Seltzer

A friend of mine has a new baby and, with family spread across the globe, likes to use online photo-printing services to share snapshots of the growing baby. She can create an online album, load up photos from the digital camera, and invite relatives to browse and print their favorites. Except when they can't.

It seems one picture, of baby seated against the background of their blue sofa, looked too "professional" for Ofoto (Kodak). Though she was permitted to upload the photo and copy it to her browser (view it online), when she tried to print a copy to hang in the office, my friend was confronted with a copyright-based denial: "Your order has been cancelled because it appears your order contains one of the following... 1. Professional images." She could proceed to print only if she signed an affidavit warranting that she was the photographer or had permission from the copyright owner.

Ofoto's form had no place for my friend to indicate, among other possibilities, that she owned the copyright as work-made-for-hire, or that printing would be fair use. She's now looking for a new online printing service.

Yet even that overreaction is better than what Wal-Mart is doing to people who send photos for digital processing, according to The San Diego Union-Tribune: Snap judgments (via BNA):

[Amateur photographer Zee Helmick had taken photos of her son for a audition, and sent them to Wal-Mart for printing. When she went to pick them up, a Wal-Mart clerk told her] "We can't release the pictures to you without a copyright release form signed by the photographer."
...
The clerk said the photos looked like a professional had taken them, Helmick said. And no matter how much Helmick protested that she, an amateur, had snapped the shots of her son, she said the clerk wouldn't budge.

Helmick didn't have a copyright release with her, so she offered to write a note stating that she had taken the photos. She said Wal-Mart refused even that.

I guess Canon's copyright warning is just one manifestation of a general photo-insanity. Not to mention lawyers going after the free software program Gallery.

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

June 6, 2005

Science Commons Promotes Open Access to Legal Scholarship

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Remember when Larry Lessig signed away his copyright in an article to a law review and vowed never to do it again (Never Again)? He has since been throwing his weight behind efforts to make legal scholarship open to all -- including a brand-new project that Science Commons announced today: the Open Access Law Program:


Professor Lessig is the first signatory on the Open Access Law Author Pledge, where law professors can agree to support open access principles. This support includes encouraging journals to become open access and promising to publish only in journals that are open access.

Through its Open Access Law Program, Science Commons will work with law schools, authors, libraries and journals to encourage open access to legal journals and articles, and plans to expand the Program into other areas of law publishing. Although the program’s initial focus is on legal publishing in the United States, Science Commons is also supporting international efforts to make legal material freely available to all.


Much more about the new program and its goals, here. (Thanks, John!)

Update: Ernie Miller responds: "[Why] not simply have the journals that do sign publish the works directly, if the authors have similarly signed, into an Open Access Repository at the end of the limited exclusive license, rather than leave it up to the authors? And why no call on OAL Journals to proselytize Creative Commons to its authors?"

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Fair use and grassroots media

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Posted by JD Lasica

Last month I spoke at BlogNashville, a conclave of folks who got together to discuss the state of blogging and the issues confronting emerging media such as podcasting and videoblogging.

At Dan Gillmor's session on grassroots media, I spouted off a bit (as I'm prone to do at these things) about fair use in the digital age. If the thousands of works that Ourmedia's 21,000 members have uploaded in the past two months are any indication, a majority of grassroots video and audio can be published and shared and remixed (if the owner allows it) by using Creative Commons licenses assigned by the creator to each work.

But there's another category of works that fall into the grey zone of fair use. And I said that it's important that we assert our fair use rights in this emerging landscape and not let the entertainment companies and their allies on Capitol Hill clamp down on this astonishing grassroots mediasphere before it has a chance to flourish.

A couple of sessions later, Gigi Sohn, the executive director of PublicKnowledge (and one of the heroes of my book), moderated a session about Copyright and the New World of Syndication. (The mp3 is here.

Gigi took the same position as Larry Lessig does -- that fair use is the right to hire a lawyer after you get sued.

That is perhaps true, given that fair use is not nearly as robust as many of us would prefer, and far less a bulwark against lawsuits than the public generally believes.

But the point I make about fair use in my book is far different: Use it or lose it.

So, what's your view on this matter, Copyfight readers?

I don't want to engage in a legal skirmish here, particularly because I'll be at a layman's disadvantage. But I'd love to hear some thoughts about high-level strategies for bulking up our fair use or digital rights as millions of us will want to borrow from and comment on our visual culture, just as 10 million blogs already do in the text world.

Here's some food for thought:

- A few minutes ago I just posted a set of fair use guidelines written for Ourmedia, on a pro bono basis (bless you!), by the remarkable IP team at Fenwick-West in San Francisco. They've reduced a monstrously complex thicket of laws into some easy-to-understand rules for the digital age (albeit rules with a lot of greys at the edges).

- Since Ourmedia launched in March, with the offer of providing free storage and bandwidth to anyone, anywhere, who wants to post works of personal media, we're naturally been dealing with issues of copyright infringement. You can find plenty of muddy greys on the site, as well as works we felt went over the line. (Not sure what the entertainment companies think about all this, but they should be pleased; we're giving our members a crash course in copyright law.)

- In my latest entry from the book on Darknet.com, I excerpt a section about a fellow who spent $700 to create a DVD to annotate his favorite TV show. I found it fascinating that Siva Vaidhyanathan and Ernest Miller gave different views of fair use for such visual works. I suspect both are correct, though they chose different parts of the legal tradition to emphasize.

- This morning I came across this video by Josh Wolf (see the 21MB QuickTime movie). He took a music video by a band and inserted news clips of people protesting U.S. foreign policy. Infringement? Creative reuse? Or muddy grey?

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

Talking digital rights

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Posted by JD Lasica

Thanks for the hospitality, Donna!

I began researching and reporting my Darknet book (bit o' trivia: my choice for a title was Remix Planet) three years ago next month after reading about the fascinating discussions taking place on this topic at the ILaw seminar, and then following the postings on the original Copyfight and several other blogs. (Copyfight has been an invaluable resource for me in getting up to speed on these topics. You folks dish up the goods!)

The first thing I'll confess is: I'm no lawyer. Never even went to law school. For two decades I've been a journalist and writer as well as a member of management at several tech startups. I have nothing but admiration for the attorneys and scholars who have laid the intellectual foundation for these debates -- people like Larry Lessig, Siva Vaidhyanathan, Ernest Miller, Fred and Cory at EFF, Jessica Litman, David Bollier, the gang at LawMeme, and a long list of others.

But it was also obvious to me that we needed to bring this discussion out of its current orbit -- among IP experts, academia, Capitol Hill, geeks and tech conference attendees -- and try to connect with the wider public.

The public has been all but left out of this debate. Copyfight and dozens of other blogs have brought a spotlight to these issues, but we need to do more to engage and enlist the general public

And so I set about not to argue a new intellectual thesis, but to tell stories -- accessible, meaningful narrative accounts of the people affected by the battle over digital rights. (I use the admittedly fuzzy term "digital rights" on purpose, by the way. Too often, Hollywood has framed this as a debate about piracy. It's not. It's about whether the entertainment companies should have the ability to dumb down our digital devices in order to protect their existing business models.)

I'm not here to hawk the book -- you're welcome to check out some of these stories and interviews on Darknet.com, which I hope will become one of the spokes in the hub of conversations about these issues. Some of the stories up there include The teenage filmmakers, and The Prince of Darknet, and (just today) the story of Philip Gaines asserting his fair use rights to annotate and comment on his favorite TV show.

In the next day or two, I'll post an interview I had with Jack Valenti a few months before he stepped down as chairman of the MPAA.

OK, that's enough for an intro. I want to post some quick thoughts about fair use, and invite your thoughts and comments. I'm here to listen and learn as much as anything. And even after my guest blogging gig ends, I'll be returning on daily basis. Nice to be here.

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Welcome to JD Lasica!

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We're very excited to welcome veteran journalist, author, and consultant JD Lasica to Copyfight as part of his virtual book tour for Darknet: Hollywood's War Against the Digital Generation. The book has just been released by John Wiley & Sons, and JD has been featuring tasty bits over at the Darknet blog -- including a previously embargoed 2003 interview with former ReplayTV CTO Andy Wolfe, who tells us what Hollywood was really after in the legal battle that killed the company:


[The Hollywood studios] essentially wanted to control what anyone could record on TV. They wanted sole discretion over how long you could keep a show after you recorded it. They wanted to limit how many episodes of the same show you could record. They wanted to ban thirty-second skip buttons and to prevent fast forward from reaching a certain speed.

(The continued push for the Broadcast Flag, on the other hand, is about...stopping copyright infringment and, uhm, "speeding" the DTV transition -- never mind that Congressman Joe Barton doesn't want it slowing down his DTV transition bill.)

In addition to writing Darknet, JD has been hard at work co-founding and sheparding the ambitious OurMedia project; check out the IT Conversations interview for an in-depth look.

Suffice it to say that JD has been doing a lot of thinking (and doing) about the issues we address here every day, and we're honored to have him as a guest author through Wednesday of this week (June 8th). Welcome aboard, JD!

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"Restricted Use" vs. "Licensed" Works

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Posted by Ernest Miller

Prof. Michael Madison and I have been discussing what distinctions, if any, there are between works that are licensed and works that are sold as "restricted use". For example, a CD that only the buyer is permitted to play. The discussion includes guest commentary from Ed Felten and a digression into Creative Commons licensing.

UPDATE 1020PT 7 Jun 2005

One more from Madison: Licensing and Design

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Apple Cultists: The Perfect Guinea Pigs for DRM

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Well, why not? You cannot criticize Apple in word or deed without getting flamed to burning embers. Maybe Leander Kahney is onto something:


Intel's DRM scheme has been kept under wraps -- to prevent giving clues to crackers -- but the company has said it will allow content to be moved around a home network, and onto suitably-equipped portable devices.

And that's why the whole Mac platform has to shift to Intel. Consumers will want to move content from one device to another -- or one computer to another -- and Intel's DRM scheme will keep it all nicely locked down.

Presumably, Jobs used his Pixar moxie to persuade Hollywood to get onboard, and they did so because the Mac platform is seen as small and isolated -- just as it was when the record labels first licensed music to iTunes. The new Mac/Intel platform will be a relatively isolated test bed for the digital distribution of movies and video.

Will current Mac users like this new locked-down platform? I doubt it, which I guess is why it's going into consumer devices first.

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Because Giving the Customers What They Want Always Gets You Sued

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Posted by Alan Wexelblat

This time it's atoms, not bits, but it's the same story. Reuters reports that Sony is trying to stop distribution in the UK of its PSP (PlayStation Portable). Sony chose to omit European consumers in first shipments due to supply shortages. However, retailers (both online and offline) have responded to consumer demand and established so-called "parallel import sales."

Sony is attempting to use trademark infringement claims to halt the practice. Frankly, it's a crock. This is the same crock as region-encoded DVDs; it's the same crock as nation-limited online archives. The message is "we want to control you." Intellectual property law is just a tool used to exercise that control. I think this is one reason that the fight between the Cartel and its opponents is so nasty. Although it's cloaked by both sides in rhetoric about artistic compensation and business models, it's really a fight about control, and even people who don't openly acknowledge that sense it and get edgy.

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Patry on Bridgeport: A Policymaking Riddle Inside an Analysis-Free Enigma...

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William Patry, discussing the 6th Circuit's affirmation of its tone deaf decision on music sampling:


Bridgeport is policy making wrapped up in a truncated view of law and economics, shorn of analysis of all the public interest factors and harm to derivative creators that nuanced exponents, such as Judge Posner, engage in. ...[In] the end, it is creators of new sound recordings who build transformatively on the works of predecessors who will suffer the most, and thereby all of us. Hopefully cert. will be granted, and the 6th Circuit reversed.

Detailed analysis of the ruling plus links @ (where else but) Importance Of...

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The Right Question

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Ernie Miller asks @ Importance Of...:


Late Friday afternoon, C|Net News published an extremely valuable trade secret about Apple and Intel, days before Apple was scheduled to announce it (Apple to Ditch IBM, Switch to Intel Chips). So, where's the friggin' lawsuit against C|Net to find out who leaked? Where is the judge who is going to claim that what C|Net published was "stolen property"?

Will someone please explain to me the difference between what C|Net has done and what happened in Apple v. Does?


Clue me in, too, while you're at it.

Previous relevant coverage here @ Copyfight: EFF Files for Appeal in Apple v. Does.

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June 3, 2005

Offering != Distribution

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Judge Marilyn Patel issued a ruling (PDF) Wednesday that settles an important question in the ongoing Napster (yes, Napster) case -- whether under the law, simply offering copyrighted material to others (say, by listing it in an index) means you're distributing it.

The record label lawyers, as Ernie Miller so delicately puts it, "were bloody idiots because they didn't nail down evidence of direct infringement before launching the Napster lawsuit." They have therefore been working hard at making the Artists' Rights and Theft Prevention Act of 2005 (ART Act) work for them, hoping Judge Patel would adopt a new, broader standard for the right of distribution based on one of its provisions. If Judge Patel found Napster liable for direct infringement on the theory of making-available-as-distributing, the labels could press forward against Napster's investors on that basis. No such luck.


Rather than requiring proof of the actual dissemination of a copyrighted work or an offer to distribute that work for the purpose of its further distribution or public performance, plaintiffs' theory is premised on the assumption that any offer to distribute a copyrighted work violates section 106(3). This is not sufficient to satisfy plaintiffs' burden of proving that Napster or its users directly infringed their copyrighted musical compositions and sound recordings, as they must do if they are to hold defendants secondarily liable for that infringement. Accordingly, the court holds that defendants are entitled to summary judgment on this issue.

In other words, copyright holders have to prove that someone actually downloaded the file from you before you can be found liable for distributing. The simple act of offering isn't enough.

Accordingly, the court holds that defendants are entitled to summary judgment on this issue.

In the context of the case, this is a minor victory -- Judge Patel did not dismiss the other theories for direct infringement, so the case will continue against Napster's investors on those grounds. But it does clarify the law, providing a safeguard against the over-reach that the ART Act threatened.

For a much more detailed look at the ruling, check out Ernie's latest post, Judge Patel Dismisses One Direct Infringement Theory, But Napster Investment Case Continues.

(Cross-posted @ Deep Links.)

Post script: It looks like Alan and I pressed "publish" for posts on this issue at roughly the same time: here's his take.

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Whose Turn Is It to Call Off the Dogs?

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Derek Slater, in the midst of a thought-provoking discussion with Ernie Miller about the benefits of copyright-as-leaky-boat, asks a very interesting question:


[Can] we a) acknowledge the constructive role [for "leaky" copyright] while b) opposing widespread infringing filesharing? ...Perhaps a part of the reconciliation is a sense that, whatever may have been the meritorious effects of filesharing during Napster's birth, now competition in legitimate services can become good enough that it's time to call off the dogs.

If I understand him correctly, Derek is arguing that (1) copyright infringement can indeed be beneficial in the larger scheme of things, but (2) publicly justifying it on that basis means we suggest, wrongly, that there should be no cap on bad behavior, so the question becomes, in the case of filesharing, (3) hasn't infringement already done its "job"? Shouldn't we "call off the dogs"?

Ernie's answer, as I interpret it: "If the entertainment industry called off its own dogs, we wouldn't even be having this discussion."

One of the dogs is, of course, the DMCA. Another is the zero-tolerance attitude toward leaky-boat behavior (and I would add, the "me2me" tools that enable it):


Well, blatant copyright infringement was never cool. Yet, I don't think that were filesharing to go away, copyright would be in balance. ...Part of my argument in favor of the public/private distribution distinction as the focus of copyright law is that it provides a clear means for "leaks." If the RIAA keeps music prices too high, people will engage in more private distribution. When prices are reasonable, there will be less private distribution.

Similarly, I think that the DMCA shifts the balance for leaks in ways that are counterproductive.

I will continue to counsel against infringing public distribution via filesharing systems. Yet, I don't believe that there can be true reconciliation until copyright law is better balanced.


For some time now, Derek has been providing a series of detailed reviews of a variety of authorized services. I wonder if part of the goal has been to investigate whether the recording industry is ready to offer people a genuinely fair deal, to capitalize upon rather than crush new technology, and to move forward with digital age business models rather than stick its thumb in the dam.

I'd like to open the floor on this one. What do you think?

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June 2, 2005

When Congress Has to Blog Because Mainstream Media Won't

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Posted by Alan Wexelblat

What if you had a document, potentially as explosive as the Abu Ghraib photos? What if you had on the record comments from British officials saying they "did not dispute the document's authenticity"? What if you then got a US Administration official to describe it as "absolutely accurate"? What if you were a respected member of Congress and you still couldn't get mainstream US media to cover the story?

Then you'd be John Conyers, you'd be holding the so-called "Downing Street Memo," and you'd be forced to turn to blogging and creating your own website in an attempt to get some attention paid to a story that has gotten no publicity in the US.

More to come, I'm sure.

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June 1, 2005

We Are The Law

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Posted by Alan Wexelblat

In addition to attempts (highlighted in this blog by Donna and by Ernest) to get Congress to write the laws it wants, the Cartel has gone directly into the cop business. The LA Times reports that the MPAA has given the city $186,000 to pay for pole-mounted cameras placed to spy on LA's streetside DVD bootleggers. Because, you know, the police really don't have anything else to do so they really ought to spend their time on this.

And when you can't get real law enforcement to do your legwork, do it yourself. Apparently this has been the philosophy of the Australian music industry's piracy investigations unit, which admitted in court that it had been "tailing" Sharman Networks' CEO Nikki Hemming's premises on a "continuous basis" for several months. I'm not familiar with Australian law, but in the US this isn't precisely legal. I'm particularly taken with this assertion from Speck: "Conducting an investigation into a shadowy organization hiding behind a veil of secrecy and surveillance is a normal practice." Uh, sure thing, mate... if you're the cops!

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CommDaily: MPAA May Not Seek Broadcast Flag in DTV Bill

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Last week Ernie Miller brought to our attention a news report revealing that none of the legislators pondering a new law to mandate the switch to digital television appeared to oppose the inclusion of a broadcast flag provision (Broadcast Flag Rears Its Ugly Head in DTV Transition Hearings). Not a surprise, but nonetheless deeply disappointing.

Now we have some extraordinarily good news from Communications Daily: someone does oppose the provision. Even better news: that someone is the bill's main author.

Reports CommDaily (unfortunately behind a pay wall):


The Motion Picture Association of America is unlikely to push for a broadcast flag component in DTV legislation establishing a 2008 hard date because the bill's main author, House Commerce Committee Chairman Joe Barton (R-TX), is against the provision. Meanwhile, the MPAA will keep briefing House and Senate members on a broadcast flag bill's importance and seek other ways to get the content protections it wants.

A new Congressional Research Service report raises concerns that the broadcast flag's technological limitations could hinder activities normally deemed "fair use" under copyright law. For instance, students might not be able to email themselves copies of projects incorporating digital video content because no secure system exists for email transmission. "The goal of the flag was not to impede a consumer's ability to copy or use content lawfully in the home, nor was the policy intended to 'foreclose use of the Internet to send digital broadcast content where it can be adequately protected from indiscriminate redistribution,'" the report said, quoting from the FCC order.


Limit fair use, you say? Whaddaya know.

I'm tracking down a copy of that report, and will post when I find it; stay tuned.

(Cross-posted @ Deep Links.)

Update: It looks like the "new" report [PDF] was released in April, before the DC Circuit struck down the Broadcast Flag. It repeats the FCC's assertion of authority to impose the Flag but also notes the objections of public interest organizations (Public Knowledge, EFF, et al.). Evidently, the new bit is that Congressman Barton is (presumably) citing the report to justify his distaste for the Broadcast Flag provision. Nice.

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Meanwhile, the Music DRM Marches On

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Posted by Alan Wexelblat

A couple of brief pieces (here on geek.com and here on webpronews.com) reporting on Sony's BMG unit continuing to push more widespread use of DRM. After testing in the UK, Sony is now rolling out in the US a technology called XCP2 that is supposed to stop people making further copies of copied disks. The system is designed so that a personal backup copy can be made but the DRM transfers with the copy and blocks further copying. So you can have one copy in your car, but if you own two cars you're SoL?

XCP2 is just one of the copy-control technologies that Sony BMG have deployed and once again the customer is in the dark since the company doesn't label disks it has doctored, nor inform you in advance of purchase. This is what caused me to drop my BMG membership - I want to know. I disagree with PCPro, who call this an "informal deal" with the customer. I didn't have any part of this deal, nor do I have any negotiating power in the exchange, except to pick up my dollars and walk away. I'd hardly call that a "deal."

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