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.
We've talked here before about what it means to be a "copyfighter," with lawyer Erik J. Heels providing an excellent definition (emphasis, mine):
I don't always agree with other engineers, lawyers, or business people, especially if I feel they don't understand the "how" of the technology, the "why" of the law, or the "so what" of business. And don't get me wrong, I like being called "linkable and thinkable." But if "copyfighter" means "one who fights against bad copyright laws (and for smarter business practices)," then I am a copyfighter.
Now Cory Doctorow, who has been spreading the "copyfight" meme like a blazing inferno, has finally been asked, point blank, "What does 'copyfight' mean?" Here's his definition, in the context of an interview about what's happening at the World Intellectual Property Organization (WIPO):
Copyfight is the broad banner to describe people who are fighting for reforms to intellectual property -- trademarks, patents, copyrights and what are called "related rights" (broadcast rights and so on). ...
[WIPO has been pursuing a policy of] simply making more copyright, more patent, more related rights, more trademarks on the grounds that all of these rights were themselves a good, regardless of the impact they had on people -- whether they were denying access to patented pharmaceuticals in poor countries that desperately needed them and couldn't afford to buy them at the market price, or simply creating copyright regimes that made basic education more difficult to provide in developing nations. ...
WIPO...created regimes that made it illegal, just for instance, to reverse-engineer digital rights management tools and create locally interoperable products, so you had to import foreign goods, which could only play foreign media, and your local arts scene would find itself smothered, your culture would find itself overwhelmed by imported culture, and your local technologists would be undermined by foreign interests.
My own attempt at a definition: the copyfight is the battle to keep intellectual property tethered to its purpose, understanding that when IP rights are pushed too far, they can end up doing exactly the opposite of what they're intended to do. That's why I find James Boyle's recent series of articles on "IP stupidity" such a satisfying read. He advocates for smarter IP, not no IP. And by smarter IP, he means IP that doesn't threaten free speech and democracy, competition, innovation, education, the progress of science, and other things that are critically important to our social, cultural, and economic well-being.
Every so often, I get an email from a Copyfight reader asking where the blogs are for "the other side" of the copyfight. The question always makes me uncomfortable. For one thing, I don't like to think we're all so easily lumped into categories. What possible good can come from standing so far apart that we can only launch long-range missiles at one another -- while readers yawn and look away? But more importantly, red state/blue state thinking is a big part of what keeps us in this ridiculous stalemate. You say tomato, I say tomato; we don't even get to potato before calling the whole thing off.
What readers are really asking for is the kind of real, honest-to-goodness debate that will give them the tools for understanding things like the Grokster decision. I'd like to to see that kind of debate, too. But what I often see from the "other side" is a bizarre kind of baiting strategy -- attempts to get a rise by either suggesting or outright arguing that people who fight for balanced copyright are automatically opposed to any and all copyright.
Case in point: not long ago I received a very polite email from the Institute for Policy Innovation's Sonia Blumstein announcing its new weblog, IP Blog. Wrote Blumstein:
IPBlog is not the only blog on intellectual property, we know, and it's not even the only one from a free-market perspective. But we know we have compelling content and commentary to share, and we hope you'll join us. ...We're also happy to have your suggestions for content, if you come across something of interest. And we're interested in your feedback and suggestions. We will be expanding and improving both the design of the site and its content on an almost daily basis.
What a nice invitation. Off I went for a visit. And found this post describing an interaction with A2K prononents at the WIPO Development Agenda meetings:
Well, as I was sitting in close proximity to the commies with the Free Software Foundation, I got a close look at the tee shirts in question. You can imagine my glee as I pointed out to them that the tee shirts they were wearing actually carried not one but TWO different forms of IP protection. On the tag there were both brand and style registered trademarks.
"Where are your open source tee shirts?" I asked. "Show me your Creative Commons commemorative gear!" I taunted. This resulted in a rather heated discussion, as you might imagine, but I got a huge kick out of it.
Good grief. What's next -- spitballs?
I suppose this post is my inexcusably long-winded way of arguing for a definition of the copyfight that gets us as far away as possible from spitball territory. Is it really so difficult to agree that intellectual property can sometimes be pushed too far, in ways that harm society? That there are smarter approaches to IP law and policy than one-size-fits-all, more = better? Do we really have to go back to grade school each and every time to explain that we're not communists when we say so?
... or, doesn't anyone EVER learn? Or, Internet... censorship... damage. It's not possible that this could surprise any sentient being. But here's the headline:
Lynn presentation leaks onto Net
Well, no kidding. For those not following this gem, the Lynn in question is researcher Michael Lynn. The presentation is a talk Lynn prepared on known exploits against Cisco routers. Apparently this is stuff that has been known for some time and Cisco is working to fix amid a sea of misconceptions about the basic security of the hardware/software that powers much of the Internet. And what has leaked onto the Net is a PDF file that contains the presentation Lynn was scheduled to give at Black Hat in Las Vegas.
UPDATE: RickF of InfoWarrior commented that he has recieved a takedown notice and has removed the PDF. Please read his update in the Comments.)
I say "was," because earlier this week Cisco pressured Internet Security Systems (Lynn's employer at the time) into removing the presentation from Black Hat. Lynn then threatened to go ahead anyway and resigned from ISS. Cisco got an injunction; Lynn gave the presentation. Now it's getting ugly. According to blogger Brian Krebs, the FBI is involved and this is after an agreement was reached among Cisco, Lynn, ISS and the Black Hat organizers not to further distribute the material. Krebs' blog has a blow-by-blow including the agreement text. (There's also an interesting aside that at least 16 WIRED reporters were laid off this week - anyone have the story on that?)
Kieren McCarthy at Techworld hits the nail on the head, noting that Cisco has been "heavy handed" and the result has been a backfire of major proportions. The story is everywhere; the presentation is hot. Note to all you control freaks: do not, repeat DO NOT hit the blob of mercury with the hammer. Really.
Patry on the Senate Commerce Committee on Grokster
William Patry on yesterday's Senate Commerce Committee hearing on Grokster: "Press reports, including this one from Wired, uncritically put out the message committee members wanted: 'P2P pirates We're watching U.' It was, however, a sound and fury signifying nothing."
The Reg reports on an announcement by Utah Republican Steve Urquhart of his intention to run against Senator Orrin Hatch in 2006. Hatch, referred to both by myself and by The Reg as the Cartel's "favorite sock puppet" is a prime hate target for techies of all stripes. His support for the DMCA and later the abortive "Induce" Act hasn't pleased many people outside of Hollywood. Urquhart by contrast is tech-savvy (he has his own blog, for example) and believes that his conservative credentials will stand up well with local voters. Meanwhile, he wants to reach across state and party boundaries to raise funds for his effort to unseat the incumbent, appealing to those online who have been hurt by Hatch's advocacy for the Cartel.
It's a moderately clever proposal (Urquhart has got to be better than Hatch on almost any metric) and likely a tactic we'll see more of in the upcoming election. But Hatch didn't stay in the Senate for 28 years by being stupid or lazy. My guess is that he'll use the local Republican machine to crush this upstart, possibly even before primary season.
Kristin Thomson from Future of Music Coalition wrote to let us know about the FMC's upcoming Summit event. There's an impressive list of attendees (Senator Maria Cantwell, Michael Geist, FCC Commissioner Jonathan Adelstein) and the sponsors include ASCAP, BMI and the EFF. They've even got a nice discount attendee rate for students.
The study, by Anindya Ghose of NYU and Michael D. Smith & Rahul Telang of CMU, looks at the impact of the used-book market on the new-book market, particularly online. This subject has been of concern to organizations such as the Authors Guild and the Association of American Publishers, which sent a letter to Amazon a couple years back bemoaning its promotion of used options along with new sales.
In their study (online text available from ssrn.com), Ghose et al conclude that the secondary market actually drives new sales, in part because it helps buyers be more confident they can dispose of unwanted books they bought new. This supports a study by Judith Chevalier of Yale School of Management and Austan Goolsbee of the Chicago Business School. These two looked at college textbooks (which are quite expensive to purchase new, compared to mass-market hardcovers) and found that students were, in effect, paying a price to "rent" a textbook for a semester. Paying full cover price for new was deemed more acceptable on the understanding that a percentage of that price could be gotten back by selling the book back at reduced price to the bookstore or to another person.
The bottom line is that consumers and their behaviors are complex and need to be studied wholistically. Just as a used-book sale doesn't one-for-one take away a new-book sale, we should understand that the availability of free downloadable digital media doesn't take away one-for-one from new purchases (whether it's CD sales, movie ticket, DVD sales, whatever). By coming to a better understanding of consumers' motivations and assumptions we can design business models that are more likely to succeed.
Copyfight's own Jason Schultz and EFF Development Director Terri Forman have a new op-ed excoriating companies seeking to levy a patent "tax" on online giving and activism:
In recent months, there has been some controversy in the philanthropy world over an unusual topic -- business method patents. The stink has arisen because a few companies that provide services to nonprofits are starting to patent their online techniques versus real technical innovations -- things as basic as using email to alert friends to pressing social issues that need support or sending an online "thank you" card to acknowledge a donation.
As stupid and harmful as a patent on "one-click" shopping may be, it's even worse when the claim is for "one-click" activism and philanthropy. If you give $5 to an organization like EFF (or £5 to this new group), you want every dollar to go to the cause -- not licensing fees for the software you're using to make the donation.
A nice explanation of why you can no longer buy the (Pensacola) News-Journal at Wal-Mart anymore. Randy Hammer, the paper's Executive Editor, recounts the ultimatum from a Bob Hart, who apparently represents Wal-Mart in that area. Fire your columnist or lose your rack space. Fortunately, Hammer made what I would consider the right choice.
UPDATE: Florida News Web site WCJB reports that Wal-Mart has backed down. Oops, sorry. Forgot about that whole First Amendment thing there for a bit.
Something is very wrong. While Microsoft may consider itself only helping out by providing facilities to aid and abet such stifling control they are doing damage by thwarting the dynamics of the marketplace. Sadly, both Microsoft and Intel seem to be determined to undermine Moore's law by saddling it with fatal complexity in the hope of insuring their incumbency and the incumbency of other industries that are past their prime. ...
Microsoft is going to prevent what they call "hardware attacks" (as well as "software attacks") on premium content. Such attacks include what others call fair use. My attempt to watch content on my own screen is an example of just such as "hardware attack."
For years, Hollywood has responded to criticism of the effects of digital rights management (DRM) on fair use by suggesting that the public can still use analog outputs to make (possibly lower-quality) copies of works for fair use purposes. Because of the prospect of using analog outputs in this way, say studios, lawful personal copying is not completely eliminated by DRM. Even as they made this argument, however, the studios pursued a campaign to restrict such recording by characterizing it as a "loophole" -- the so-called "analog hole" or "analog reconversation problem." The same recording techniques that movie studios hailed as the protection for fair use were also stigmatized as an intolerable escape from the supposedly perfectly controlled world of DRM. ...
CGMS-A compliance is one of Hollywood's top priorities. A lack of transparency in the copyright industry's negotiations with technology companies makes it unclear precisely what sorts of threats and incentives are winning the technologists over. Yet these negotiations appear to be accomplishing what Congress declined to do: making devices that obey CGMS-A ubiquitous, arranging for recording equipment to comply with the studios' and broadcasters' copying policy preferences, even to the point of refusing to record certain programming at all. Once again, this outcome is not the law; it is simply the technologists' decision to side with the studios against end users.
For a more comprehensive view of what it really means for Microsoft to forge an "alliance" with Hollywood, check out Seth's previous three posts:
Microsoft Trusted Computing Updates: "Microsoft's NGSCB project, although delayed, remains troubling because of its ability to strengthen DRM-like applications and facilitate software lock-in."
The Dangers of Device Authentication: "Major hardware vendors are now taking giant steps toward several sorts of device authentication. These steps ultimately threaten...PC users' interests.... Why would hardware vendors do this? One major source of motivation for device authentication is Microsoft's Protected Media Path (PMP) project, a successor to the Secure Audio Path (SAP)."
Protected Media Path, Component Revocation, Windows Driver Lockdown: "In the near future, when you try to install software to time-shift your favorite Real Audio webcast, your PC might disable all media player applications. Until you remove the software, your PC will remain crippled. Or perhaps you want to watch a downloaded movie on a wide-screen TV, but your PC might turn off its video card's analog output. Welcome to the world of Windows Longhorn (now known as Vista) and the Protected Media Path, where Microsoft, copyright holders, and DRM licensors may grant or revoke permission to use your own computer and digital media."
These, of course, are the same avid fans that the Cartel are suing as fast as they can. Never one to miss a business opportunity they didn't think up themselves, the RIAA and cohorts such as the BPI have no intention of calling off their jihad.
Via Dave Farber's IP list comes Bob Frankston's excellent essay on "why DRM can be problematic rather than simply annoying." Explains Frankston to the list (emphasis, mine):
The juxtaposition of Microsoft's effort to build the control of content into basic hardware and the comments on the Discovery Institute's Intelligent Design agenda gives insight to the problem -- if you believe you can design the future then why not lock in the incumbent's control?
One reason "why not": you risk sacrificing future economic dividends. From the piece itself:
DRM is a way of assuring that the "content owner" can maintain control. That seems innocuous in itself but it has the effect of limiting the marketplaces' ability to change. This makes sense in limited cases as it allows investors to recoup the cost of their investment and make a profit but if DRM works too well it prevents growth. A marketplace is a dynamic system that keeps changing. Why doesn't the marketplace simply devolve into chaos? The reason is that it is an evolutionary process -- one that provides opportunity for creating new results. We can think of this opportunity in terms of Chris Anderson's long tail -- it represents the value to be discovered rather than what is obvious.
In what I read as a bizarre decision (can you say "Dodge!" boys and girls) a three-judge panel has issued a decision denying plaintiffs satisfaction in Nitke v Ashcroft. Lots of folk we know are involved in this case and have links:
As best I can parse it, the judges agreed that the CDA (the law being challenged in the case) was in fact chilling speech that ought to be protected. However, since Nitke et al couldn't prove how much speech was being chilled, the judges ruled that she hadn't "met the burden of proof." As Wirenius notes, the judges set an impossibly high bar and then offered no guidance on how plaintiffs might meet it. Nitke has said she plans to appeal.
I can't fathom the kind of metric I would use to measure a "total amount" of chilled speech. How many people are intimidated into silence? Number of images not photographed? Size of Web sites never built? Megabytes of p0rn downloaded in secret? Someone help me out here.
Coordinator of International Intellectual Property Enforcement
An AP story (here on SiliconValley.com) indicates that Pres. Bush has created a new post of coordinator of international intellectual property enforcement. The first appointee is Christian Israel, formerly of the US Commerce Department. They're using words like "aggressive" which I take to be code language for dealing with countries like China that can't be intimidated by the kind of bilateral trade treaties that the Bush administration has used to pressure smaller countries into accepting US intellectual property regimes.
The NYTimes is reporting that Sony BMG is taking a page from MS's playbook and is near to a settlement with NY Attorney General Eliot Spitzer's office over the radio payola scandal. If things pan out as rumored, Sony BMG will actually be forced both to admit misconduct and to change its practices. I am so not holding my breath; the Cartel will just adapt slightly and nothing overall will change.
UPDATE: Reuters is now reporting the settlement has in fact gone through. Sony BMG agreed to pay USD10 million. Bloomberg reports that Sony BMG will cop to "improper conduct" and avoid prosecution. No word on whether the other three big companies Spitzer went after (Vivendi Universal, EMI and Warner) will also cop.
Copyright guru Ann Bartow has the scoop on the Orphan Works hearings, recommending a number of comments for those of us who just can't read them all: "[If] you want a variety of viewpoints, I'd recommend those by: Allan Adler, Sarah Andrews, Jonathan Band, June Besek, James Boyle, Carol Fleishauer, James Fruchterman, Jane Ginsburg and Paul Goldstein, Peter Jaszi, Michael Keller, Lawrence Lessig, Doris Estelle Long, Annette Melville, Mary Minow, Miriam Nisbet, and Jennifer Urban."
One of the positive things about people writing badly misinformed articles like this one by John Dvorak is that the fisking process can often be educational, and in ways you don't necessarily anticipate. If you haven't read it yet, Dvorak calls Creative Commons licensing "seriously dumb. Eye-rolling dumb on the same scale as believing the Emperor is wearing fabulous new clothes." He then proceeds to demonstrate a profound misunderstanding of both Creative Commons and copyright law in general.
I've chosen the non-commercial, attribution, share-alike version of the Creative Commons License for my blog. This says that anyone can reproduce my work from the blog, with attribution and for non-commercial purposes, as long as they share it under the same conditions.
I've chosen this, not because it's necessarily the best option in all, or even most cases, but because it's the best default rule. ...The general idea of a default value is familiar to anyone whos done any computer programming and I imagine that if things were put to Dvorak in this way he'd see the point. ...
The idea of a default rule clarifies what is going on here. You can only have one default. At one time this was public domain (since it was necessary to make a specific claim for copyright). Now it's copyright, and advocates of strong IP take this as normal and natural. But if you want to use GPL or CC material with a share-alike license you have to adopt this default. From the viewpoint of people who take copyright as natural, but see CC material expanding, this is like a virus.
It's clear from the article that John Dvorak doesn't really want to understand Creative Commons licensing (the better to troll you with, my dear!). It's nice to see that by publicly professing his ignorance, he's nevertheless helping other people understand it.
Anne Broache reports for CNET on a panel discussion pitting the likes of EFF's Fred von Lohmann against the likes of Don Verrilli, one of those who argued the case on behalf of MGM. Von Lohmann seems to want Congress to legislate a new "bright line" that would clearly establish clear protection for inventors and innovators. An admirable goal, but considering how godawful most of the IP-related legislation emerging from Congress has been in the past 10 years I'd class this as a foolish wish.
Congress doesn't seem inclined to act in any case, which means we're likely going to have to go back to a series of lower-court cases and appeals to try and establish what Grokster's "intention" standard means. Even if we got a bright line, that doesn't mean it would necessarily be a better or more sensible situation (see last fall's "Do not stare into bright line with your OTHER eye").
John G. Roberts is now Bush's nominee to SCOTUS. My bet is that most of the questioning and public debate will be over his positions on social issues such as abortion. I particularly like Lyle Denniston's extended commentary on SCOTUSblog about the "gang of three." But we, of course, want to know what Judge Roberts' position is (or might be) on intellectual property issues.
the past 15 years, EFF has been fighting to preserve the constitutional
right to freedom of expression on the Internet. Founded to protect publisher Steve Jackson Games when its servers were seized, EFF has grown as new technologies -- such as weblogs -- gave citizens their own First Amendment machines.
To celebrate its 15th anniversary this month, EFF is putting these distributed Gutenbergs front and center, holding a
weeklong EFF15 Blog-a-thon
where you're invited to blog about your personal experiences fighting
for freedom online a project that will celebrate new publishing
tools, attract new EFF members, and mark the 15th all at once.
From EFF's Announcement: We want to hear about your "click moment" the very first step you
to took to stand up for your digital rights -- whether it was blogging
about an issue you care about, participating in a demonstration,
writing your representatives, or getting involved with EFF. As a thank
you, we've enlisted anindependentpanelofjudges
to choose from among your posts for "Most Inspirational," "Most
Humorous," and "Best Overall." At the end of the Blog-a-thon, we'll
announce the names of the three bloggers with the best posts on our
website and in our weekly newsletter, EFFector. We'll also publish the
three best posts on our site and send the authors a blogging "kit" as
an extra thank you: an EFF bloggers' rights T-shirt, special
EFF-branded blogger pajama pants, a pound of coffee, and a pair of
Tell us why you became a copyfighter! Visit EFF's blogathon for more
info about participating in and following the posts.
I'm building a list, and I hope you, Copyfight's readers, can help. It's not a list of iTunes -- it's a list of links to the very best writing, webcasts, podcasts, blogs, and other resources for people learning about the battle for balanced intellectual property law and policy in the digital age. And the cool thing is, the list won't sit stranded on a website by itself, waiting for people to stumble on it. Instead, as part of the Berkman Center for Internet & Society's brand new "H20 Playlists," it'll become a shared playlist that anyone interested in the copyfight can tune in to.
H2O Playlists applies the lessons of iTunes, Amazon.com, Wikipedia, del.icio.us, and other collaborative knowledge-sharing projects to any kind of educational endeavor you can imagine. Educators from all around the world can gather at H2O to build the academy's "greatest hits" for any subject matter they choose, to share with anyone else who wants to learn. And your search for, say, "chilling effects," will yield playlists with crossover appeal -- that is, show you groups of educational materials compiled by people who share similar interests.
And it gets even better. If you like what you see, you can subscribe to the playlist. When you subscribe, you help "rate" the list, so others can see which playlists are most useful.
Of course, what will make this project even cooler is more people supplying their own playlists. I've personally spent quite a bit of time at Netflix rating DVDs so the people on my friends list can benefit from my (ahem) superior taste. But I've naturally done it in increments -- five minutes here, five minutes there. Imagine if countless educators and curious, thoughtful, knowledge seekers did the same with H2O Playlists, taking 10-15 minutes over a week's time to add an excellent article, webcast, or book title to a playlist?
If you want to help create the Copyfight playlist, either leave a comment with your recommended resources below or send me an email with your recommendations. Once I have the list complied, I'll announce it here -- and together, we can see how it plays.
You are, of course, free to compile your own playlist. And if you do, let me know -- I'd like to see what you're interested in.
Schneier's CRYPTO-GRAM pointed me at the Hear Your Music aNywhere (HYMN) project, which exists for the purposes of breaking or subverting the DRM in iTunes. This is similar to the "street in real time" posting I made last month but is a much more frontal (and DMCA-violating) attack on a technology. HYMN is also an overtly political project, noting that DRM+DMCA means no room left for fair use, which in their minds includes listening to music you bought from iTunes where, when, and how you like.
I expect ZDNet should be getting a cease-and-desist order any day now, and Copyfight can expect one not long thereafter, because once it's illegal to write about it, how long can irresponsible criminals like myself be allowed to discuss news stories about ISPs that host sites that have links to sites that... oh, never mind.
Am I the only one who thinks this is absurd? By the way, the original target of this ire is mp3s4free, which appears to be either severely slashdotted or actually down at the moment. The court order as reported by ZDNet was for the defendants to pay court costs, not for a site shutdown nor payment of fines/penalties.
Tony Smith writes for The Reg on the latest numbers for digital music sales out of Nielsen SoundScan and the UK's BPI. Year-over-year sales for the first half show a near-3x increase in sales of downloaded singles and full albums. Album sales are down 7% on their own; if you assume that downloading is replacing album sales then the decline is 2.5%.
Bob Cringely writes about his upcoming podcasts for his column and his long-shelved NerdTV project. Props to him for diving in with both feet - he's creating his own distribution network, a "mini Akamai," since PBS won't/can't. It'll be distributed under Creative Commons license to encourage reuse and will come with pre-made clips intended for repurposing.
This week the BBC will announce there have been more than a million downloads of the symphonies during the month-long scheme. But the initiative has infuriated the bosses of leading classical record companies who argue the offer undermines the value of music and that any further offers would be unfair competition.
The BBC made all nine of the Beethoven symphonies available for free download, with commentary, as part of their Beethoven Experience.
You'd think that arts leaders struggling to expand their market to younger generations would welcome evidence that downloaders want to give classical a try. Any classical afficionado knows that one performance of Beethoven's Ninth isn't a direct substitute for another, just as baseball fans don't stop watching just because they've now seen the Red Sox win the Series. Instead, hearing and appreciating an intial performance is the first step toward wanting to hear the other greats, in concert or on CD. Those pop fans who realize Gianandrea Noseda's Pastorale fits on their iPods may well be moved to try more.
But instead of welcoming this new audience with offerings of their own, the labels complain that downloads are "devaluing the perceived value of music." They make the same error intellectual property maximalists do -- thinking that "exclusion" equals "value." If few people want to pay for your product, it doesn't have much market value, no matter how much you want to charge. The RIAA's 2003 Consumer Profile indicates just 3% of U.S. music purchases were classical, while BPI reports that in the U.K., classical CD sales totaled under 14 million for that year. Against that small market, a million downloads in two weeks is huge. Labels should focus not on the hypothetical hordes who might buy high-priced CDs, but on the real likelihood that free downloads introduce a wider audience of potential purchasers of a wide range of classical music.
I for one, hope the BBC extends this experiment. Listening to the BBC Symphony's Beethoven First now.
Now, if the report in the NJ Star Ledger is correct, we may see some litigation of a few of the issues raised by an archive of this sort and its involvement in copyright and court proceedings.
As best I understand it, what seems to be happening is the operators of the Wayback Machine are themselves being sued. Geist pointed to a Geocities page for a copy of the actual complaint, but it was 404 when I went to look.
What Kevin Coughlin's story says is that Healthcare Advocates is suing Wayback because the operators of Wayback failed to block access to certain archived materials during a 2003 trade secrets dispute. According to the complaint, the opposing counsel at the time obtained pages from the Wayback Machine. One issue is how those pages were obtained - did they come from normal searching or from some kind of "hacking?"
Another issue is the copyrights of the pages - if the pages were copyrighted by Healthcare Advocates, then what was Wayback doing with copies of them in the first place? And why was it serving up copies of material it didn't own the copyrights to? And were opposing counsel engaged in knowingly obtaining by extra-judicial means material they knew was supposed to be protected by IP laws? And does the Internet Archive have responsibility in part due to what it apparently admits were broken "blocking procedures"? (My instinctive guess is that their spider wasn't properly obeying robot exclusion directives.)
Kurt Opsahl, staff attorney for the EFF, is quoted as opining that the doctrine of fair use generally allows the gathering of copyrighted materials as evidence in trade secret cases. In which case, the whole thing may get chucked out quickly and no legal precedents will emerge. But I remain convinced that this is the barest tip of a huge legal iceberg that is going to crash into the business of search engines and other 'net archives, soon. Maybe not this specific case, but the issues I pointed to last year still remain completely unresolved and in the absence of guiding legislation parties wishing to establish principles have little choice except to litigate their claims and hope for good precedents.
We've been talking here for some time about using your fair-use rights so that you don't lose them (Fair Use It or Lose It). But what happens if you do what the copyright maximalists appear to encourage and ask permission for every use of copyrighted material -- even the most defensible private home use? JD Lasica answers the question, documenting his own experiences asking movie studios for permission to include small clips of movies in a home video he's making with his 5-year-old son. Asking for 30 seconds of a classic Disney film yielded the following response (emphasis, mine):
Due to the growing number of requests that we are receiving from individuals, school groups, churches, corporations and other organizations that wish to use clips from our productions as part of their video projects and other similar uses, we have had to establish a general policy of non-cooperation with requests of this nature. Unfortunately, we simply do not have the staff necessary to oversee and review all of the details of each specific request that we receive in order to determine whether the request uses fall within acceptable guidelines or whether talent, music or film clip re-use payments to those featured in the footage and other legal clearances would be necessary to obtain before permission for requests of this nature can be granted.
It's hard to imagine a better argument for the necessity of organizations like Creative Commons.
Edward Felten, who earlier took the Honorable Richard A. Posner to task for embracing a technological "non-starter" for stopping copyright infringment on P2P networks (tagging content + filtering), enters the fray once more -- countering Judge Posner's suggestion that encryption stops copying: "Why do copyright owners keep building encryption-based systems? The answer is not technical but legal and economic. Encryption does not prevent infringement, but it does provide a basis for legal strategems. ...If you make the decryption key a trade secret, you can control entry to the market for players, by giving the key only to acceptable parties who will agree to your licensing terms. This ought to raise antitrust concerns in some cases, but the antitrust authorities have not shown much interest in scrutinizing such arrangements."
Ito has experience with companies in software, materials science and manufacturing technology and while he avers that he is a supporter of patents in general, he comes down as strongly opposed to software patents for innovative small companies. Ito points to the cost of getting and maintaining a patent portfolio (noting that a single patent is rarely sufficient) and judges that the risks of getting a patent signficantly outweigh the risks of not having them, for small (venture-funded) companies.
Should people who bought the latest Harry Potter book before the release date be forced not only to return the book but also turn over "any photocopies, photographs or electronic copies of any portion of that book," as well as take a strict vow of silence about any elements of the story? A Canadian court thinks so. University of Ottawa law professor/uber-copyfighter Michael Geist thinks not:
People have legitimately purchased the book, yet now face violation of a court order if they fail to return it immediately, discuss it, or do anything else with the book. While a court might look skeptically on an attempt to bring an action against a purchaser who fails to return the book, why the court would grant such a broad order that reaches down to the underlying purchasers suggests that this could turn into a real horror story.
The order could have been a simple injunction covering the bookstore in question; instead, it sounds like something from the PATRIOT Act. Is this truly necessary?
Reuters reports (here on CNET) that Sony-BMG have reached some kind of deal (terms unspecified) with iMesh - no surprise there since they hired an ex-Sony-ite as chairman. iMesh is trying to rebirth itself along the lines of Napster - a legit serverless P2P network. Completely unclear to me why I (or anyone else) would want to use this thing.
...you might not notice that there are sites on the Web that are offering downloadable MP3s. Some of these sites reside in countries that have different copyright laws, or laxer enforcement of laws, than the US and other Cartel-dominated countries. So everyone pretend you didn't read this blog posting, ok?
One site that is raising the ire of the Germans is AllofMP3. In particular, Web sites in Germany have been asked to take down links to the site. This puts news sites in a particular bind. Take the story from heise online covering this takedown notice. They are, themselves, German. They've been asked to "remove all links to www.allofmp3.com" (sic - no using your copy-and-paste functionality there, kiddies). In the story covering these events they have one hyperlinked word and one literal reading of the URL. Which of these will be considered "objectively supporting the illegal dissemination of copyright protected sound recordings" is anyone's guess.
Next, I'm sure, the Cartel's lawyers will be asking Google, Yahoo! et al to edit their search results not to return hits to these sites. It feels like we keep revisiting this "Is Linking Legal?" question every few months.
First it was a weblog (and shortly afterward, a bona fide meme), then a documentary -- and now "Copyfight" is a Barcelona conference, featuring copyfighters Cory Doctorow, Larry Lessig, John Perry Barlow, and the folks from Illegal Art, Wikipedia, and Downhill Battle, among many others. Tagline in the flash advert: "Happy Birthday. $2 million each year in royalties. Who knew?"
Here's a snippet from the description:
Digital technologies for distribution such as p2p networks, projects rewriting copyright and author's rights such as Creative Commons, or movements such as the one behind free software are turning this cultural period into a moment that demands a revision of the system regulating culture for the last three hundred years. COPYFIGHT is a series of activities about the unstoppable crisis of the contemporary model for intellectual property, and the emergence of free culture.
Fascinating. And it's look like there's even more from the "COPYFIGHT Project" to come. Very cool.
Movie execs are hopeful that the bigger-than-expected opening weekend for the Fantastic Four movie may have ended a 19-consecutive week slump in which this year's box office sales have been below last year. As noted, there are a number of plausible reasons for the slump, one of which is clearly 'people didn't want to buy what was being produced.' CD executives, please take note.
As I noted back in June, drug patents push uncomfortably into areas where IP rights may come into conflict with governmental initiatives and even fundamental human rights. Anti-HIV campaigners had argued that Brazil's situation qualified under WTO rules for patent suspension. For now that will remain an academic debate; however, Brazil is far from the only country with a growing AIDS epidemic and other similar situations are likely to arise in the near future.
The European Commission has been reviewing various ideas for collective management of digital intellectual property rights across the EU. The current situation is a total mess, with each of the EU's 25 members having varying rules and regulations. Licensing a single work for use across Europe becomes a trial for even the most honest and dedicated.
Now, as MarketWatch reports, the EU is looking to take a first step towards sorting out the mess by proposing a single rights sytem for online music. If this gets implemented, one immediate beneficiary should be musicians, who would only have to register (and pay) once to get a copyright instead of going through the process 25 times. Another obvious beneficiary would be online music services, which would have a single source they can go to when they want to license music for use or for offer on their services.
There has been another terrorist attack, this time taking the form of a series of bombings in the London underground and a bus. Be careful and stay alert today, everyone. My prayers are going out to the innocent people who have been badly frightened, injured, or killed.
A little bit of informal Web surfing tells me that there's no official torrent plug-in for Mozilla yet, but that several are in development. Of course the browser itself has been distributed as a torrent for some time but given the rapid rise in Mozilla's popularity, a torrent plug-in there would be significant.
Over at Deep Links, Fred von Lohmann has more on the entertainment industry's warning shots across the bow for companies that make "Me2Me" technologies like the Slingbox: First Post-Grokster Cold Front?: "Prior to the MGM v. Grokster ruling, these companies needed only to prove that any substantial use of their product is noninfringing. Today, they may be called upon to prove that every use that they ever promoted or advertised is noninfringing."
Sling are stepping into an extremely gray legal area. They claim that "place shifting" ought to be protected by the same legal doctrine that protected time shifting. But as we learned last year, when TiVo introduced features to permit sending programs from one TiVo to another, the Cartel got up in arms as did other business that depend on breaking "proximity control," such as major league sports and local TV stations. On the flip side, cable operators can easily see the extra revenue potential for something like a Slingbox in getting more subcribers to hook up to new channels and services. Like DVR functionality, it's easy to see how this kind of capability could be built into a set-top box.
For now Sling are trying to play nice with the Cartel and have limited their device to only transmitting to one other device at a time. But that's a hacker-snipped resistor away from being a rebroadcast device and then it's Grokster all over again. Jason Schultz called these things "me2me" applications and that's what the manufacturer's seem to want (no inducement here, nope!). But I'm quite sure the street will find its own uses for the Slingbox, too.
UPDATE: A creative reader suggested that it's not necessary to break the 1:1 feature of these devices, if the receving "1" is a BitTorrent site somewhere "offshore" (from the US perspective). The result would be a fairly fast worldwide distribution of any broadcast content. The Cartel still has at least three avenues of attack against such a system, but it's an interesting intellectual exercise. Nothing in the preceding should be construed as an attempt to induce anyone to actually do this or any other copyright-violating activity.
Big news. As reported by the BBC, the European Parliament has voted down the Computer-Implemented Inventions Directive, a law that would have given broad authority to the European Patent Office to start issuing US-style software patents in the EU. Rejection of this law is a huge, huge victory for innovation.
In particular, it's great to see the European Parliament realize that while software patents can spur some incremental innovation amongst coders, they often also inhibit wide adoption of new technologies, entry of start-ups into new markets, and the essential lifeblood of any network -- interoperability of programs and data. Kudos to the MEPs for standing strong on this issue in the wake of intense pressure to maximize patent protection at the expense of competition and universal access to knowledge. Kudos also to FFII, FSF, and all the other organizations that worked so hard to shed light on the true effects this misguided law could have.
A caveat: This vote doesn't outlaw software patents in the EU; it just doesn't officially sanction them. The European Patent Office will now have to decide on its own how to handle these issues, which should be interesting. Over the years, the EPO has granted some but not all software patents applied for, and has tended to do so on a haphazard basis. Hopefully, with such a resounding vote, it will curtail most if not all such grants. We'll see.
The true successor, says Bob, will be an API-based service built from pieces offered by different organizations, so different from Grokster that there won't even be an entity to which the intention standard could be applied. Erm, maybe.
Cringely leaves out a lot of steps in this chain, one of which is that the semantic Web project is in its fourth year and shows no signs of disturbing the huge growth of the WWW as we know it. There's every reason to believe that the semantic Web will remain a pipe dream for many years to come, and file-sharing will likely continue to evolve in the meantime. You can also bet that the intention standard will be tested in plenty of court cases soon. My personal feeling is that the Cartel will take this as carte blanche to go on deep fishing expeditions into the business model of anyone they don't overtly control, under the guise of trying to show "intention."
Edward Felten, concluding a critique of the Posner/Becker reaction to the Grokster ruling, argues that it may be time for judges to start taking computer science classes:
As we have seen so many times, bad computer science leads to bad law. Posner seems to miss this, but Becker's stance shows appropriate caution.
One criticism of law and economics is that it works well in a seminar room but may lead to dangerous overconfidence if applied to a hard case by an overworked, generalist judge. One solution is to teach judges more economics, and economic seminars for judges have proliferated. Perhaps the time has come to run seminars in computer science for judges.
Imagine a world where lawyers in technology cases don't have to live in fear of the judge uttering the "h"-word. Terrific, eh?
On the other hand, as a reader over @ Freedom to Tinker points out, a little education can be a dangerous thing:
The idea of trying to make judges into experts in computer science terrifies me. Trying to make them into experts in economics has resulted in some good work, but also in half-baked opinions based on terribly narrow interpretation of economic theories that might or might not model actual human behavior, with unexamined premises littering the landscape. Even expert economists get large-scale decisions terribly wrong on a regular basis just ask Jeffrey Sachs or Joe Stiglitz.
The same goes for computer scientists the past 40 years will give you a good idea of how accurate, en masse, CS folks have been at predicting the impact or even the broad evolution of their field. (Some predictions spot on, others not even close)
If there were some kind of seminar in computer science for judges, so that
they could avoid looking completely at sea, what principles would you want to teach them?
I'd like to hear the answer to that one -- as would, it appears, former Posner clerk and MobBlogger Randy Picker, who teaches future judges:
Perhaps you could post a reading list: top five (ten?) articles that lawyers, judges and law professors need to read to understand the technical limits that you describe?
I don't always agree with Ron Coleman, but he's a great writer and well worth reading & disagreeing with. Likelihood of Confusion has moved; if you're a fan, it's time to adjust the blogroll or aggregator.
The Economist calls the Grokster decision the "best available balance under current laws" between the claims of media and technology firms, but argues that in light of the ruling, copyright holders' monopoly grant should be scaled back from forever minus a day to the original 14 years:
Copyright was originally intended to encourage publication by granting publishers a temporary monopoly on works so they could earn a return on their investment. But the internet and new digital technologies have made the publication and distribution of works much easier and cheaper. Publishers should therefore need fewer, not more, property rights to protect their investment. Technology has tipped the balance in favour of the public domain.
A first, useful step would be a drastic reduction of copyright back to its original terms14 years, renewable once. This should provide media firms plenty of chance to earn profits, and consumers plenty of opportunity to rip, mix, burn their back catalogues without breaking the law. The Supreme Court has somewhat reluctantly clipped the wings of copyright pirates; it is time for Congress to do the same to the copyright incumbents.
Client is computer and software vendor. It wishes to introduce its new computer featuring a CD-RW drive and MP3 management software with the advertising slogan: "Rip, Mix, Burn Your Own Custom Music CDs."
Client is a consumer electronics manufacturer. It invents a video recording device. It wishes to say in its advertising that its product allows the user to 'build a library' of his or her favorite shows.
Clients ask you if the advertising actively induces infringement.