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.
A member of the Pho list, commenting on the news that Singapore's Creative Technology has secured a patent that it claims covers the way music tracks are selected on a device (like, say, the iPod) where the user navigates through a hierarchy of three or more successive screens on the display of the player: "It is my honest belief that the idea of filing things into categories can be tracked as far back as ancient Sumeria."
Most of us, particularly in the high tech biz, sign agreements regarding intellectual property with our employers. Simple versions of these agreements state that whatever the employee develops that is related to the company's business is assumed to be company IP. More restrictive agreements may lay claim to anything developed on company time or equipment. Since this includes email discussions, such a clause can be far-reaching.
Now, according to Ed Frauenheim on CNET, Microsoft is advancing a theory in its fight with Google over Kai-Fu Lee that could give these IP agreements - even lenient ones - the force of non-compete agreements. The argument, which MSFT didn't invent but is using, is called "inevitable disclosure." The basic idea is that you can't avoid spilling some of what you know in your job, and that's going to mean that IP you agreed was the property of a former employer gets illegally transferred to the new employer. If you accept the argument that this is inevitable then you may also find yourself accepting the argument that the employee should not be allowed to work for the competitor because doing so would always result in impermissable IP transfer. Thus, the IP agreement becomes a non-compete.
In the high-tech business - which is rife with job-hopping, IP agreements, and a rapidly changing competitive landscape - this doctrine could be dangerous if it became widely accepted. The CNET story reports that California courts have rejected the doctrine but that it has been "upheld" in Federal court.
CA's rejection came in Schlage Lock Company v. Whyte and according to that Findlaw article, the relevant Federal case is PepsiCo., Inc. v. Redmond (7th Cir. 1995). In the PepsicCo case, the allegation was upheld that Mr. Redmond had access to relevant competitive trade secrets; in the Google case, Mr. Lee is claiming that he didn't have access to MSFT's search secrets. He and Google may prevail on those grounds; however, prevailing at trial is a far cry from not getting sued in the first place, which is how things ought to be, absent specific evidence of wrongdoing.
Brad Hill @ The Digital Music Weblog, responding to the John Borland piece on the DRM Microsoft is building into Windows Vista: "[Borland writes,] 'In short, the company is bending over backward -- and investing considerable technological resources -- to make sure Hollywood studios are happy with the next version of Windows.' Bending over forward seems more like it, but I can understand Microsoft's position."
p2pnet: Where will the money to pay for [the lawsuit] come from?
Beckerman: We expect Ms Santangelo's costs to be picked up by the RIAA, since (a) the copyright statute permits the Court to shift the attorneys fees to the losing party, (b) these cases were clearly frivolous and brought in bad faith, and (c) it is a matter of public interest that the RIAA be deterred from bringing more such meritless cases.
p2pnet: If there are other people near you who want to be represented, will there a limit to their numbers?
Beckerman: As far as I am concerned there should be no limit to how many people we can represent. If we have too many cases we can hire more lawyers.
p2pnet: Would you be prepared to collaborate with other lawyers/law firms in the US to help other people in the same situation as Patricia Santangelo?
Beckerman: Absolutely. I am thrilled to help the other lawyers and I know they'll help me as well. That is why I have made the litigation documents available online. So that any attorney who is representing victims of the RIAA onslaught will have the benefit of knowing what we did, and what the RIAA's lame arguments are.
The core disagreement is that labels feel that flat rate pricing doesn't capture enough margin for those hot tracks where users would pay more. Numerous studies will be trotted out, showing that consumers will pay up to $2-3 for hot singles, so the labels are giving up substantial margin by wholesaling all tracks at $.70-75...I have no doubt that if you picked one hot track, and polled users in isolation to ask them if they would pay more than $.99 for that track, many would tell you yes. But the studies show that when you measure behavior across a longer period of time, everyone is better off with lower prices for music downloads, with $.50 being actually the magic number, especially for a business which has NO hard cost of goods outside of artist royalties, which are almost never on a fixed basis so they will decrease with the price.
Peerflix is just about what it sounds like - a peer (trading) version of NetFlix. As you'd expect from the name, Peerflix urges you to "trade DVDs, don't rent them."
The service, presently in beta, charges USD.99 per trade. You sign up, they send you "trading envelopes." You list your DVDs and when people select them, you get "trading credits" - which you can also buy - based on the cost of and demand for the item you list. You use these credits to select things other people are offering to trade. They claim both to have people trading directly and also be guarding/guaranteeing against fraud. Like most of these plans, the success of this will depend on most people being good-willed and abiding by the rules of the game.
Users (members?) agree to "not illegally copy DVDs" (anyone care to hazard a guess as to what a legal DVD copy is in the US today?) and also "agree that you have valid title and ownership rights" in the DVDs you list. Anyone care to hazard another guess as to whether my ownership of a DVD allows me to trade it in this manner?
Next, MPAA Will Pass Stamp Act, Establish Discriminatory Levy on Tea
Derek Slater @ Deep Links, commenting on the news that the international arm of the MPAA is using general search warrants to tackle piracy in Delhi, India: "These kinds of warrants are ripe for abuse. That's why they're prohibited in this country under the Fourth Amendment, which was prompted by British abuses of power during colonial times. The MPA has the right to go after those suspected of infringment all around the globe, but it should be ashamed of using tactics that ignore basic civil liberties."
Speaking of the RIAA lawsuits, Public Knowledge's Mike Godwin has a new piece criticizing them. It's not about whether or not the recording industry has a right to sue, explains Godwin. It's about the choice to sue in the first place, and how the RIAA is going about doing it:
[It] seems obvious that the RIAA should pick the lawsuits prudently, based on solid evidence, so that when the cases are publicized it will be clear that the defendants deserved what they got.
That doesn't seem to be what's happening, however.
Instead, we see what Wendy Seltzer calls The Attack of the Subpoena-Bots -- automatic weapons-style lawsuits shot into a crowd of people that Internet searches have identified as potentially guilty of file-sharing copyrighted songs. Eager to avoid the expense of an attorney and recognizing that settling is the cheaper route, most of these seemingly random targets give up rather than fight. Only, every once in a while, they refuse to settle -- an occurence so rare the RIAA attorneys evidently show up in court still thinking they've got the end-game sewn up.
Godwin provides a fr'instance -- a court appearance by Patricia Santangelo, transcribed here. Explains Godwin, "[The judge in the case] refused to be a mere conduit steering Ms. Santangelo to the RIAA's 'conference center' (which should properly be called a 'surrender center')."
Here, an excerpt from the transcript:
MR. MASCHIO: No, all I was suggesting, your Honor, is that, if she doesn't come with an attorney, that the more direct way of doing this -- and this is just to facilitate things -- is to deal directly with the conference center.
THE COURT: Not once you've filed an action in my court.
MR. MASCHIO: Okay.
THE COURT: You file an action in my court, your conference center is out of it. They have nothing to do with anything.
MR. MASCHIO: Okay. I'll give her my card.
THE COURT: If you are here, you are here as an officer of the court. You're taking up my time and cluttering up my calendar, so you will do it in the context of the Court. Maybe it will be with a magistrate judge, but you will be representing your client, not some conference center. And if your people want things to be done through the conference center, tell them not to bring lawsuits.
Nice. And a wonderful reminder that the lawsuits affect real people with real lives -- even busy judges who may chafe at the role they're being asked to play in this unfortunate, ineffective "education" campaign.
A couple weeks ago Fred von Lohmann commented in response to my Tori Amos blogging that "Bootleg" will soon be synonymous with "live recording."
Today's proof that Fred was right comes from Pearl Jam (Reuters story here on CNET) who are adding download capability to their purchasable live show recordings. For whatever reason, these live recordings, mixed on the fly, are now known as bootlegs.
Props to Pearl Jam also for offering the downloads in DRM-free formats, as well as putting some of the material into the iTunes store for people who want the best bits without the full concert download lump.
More probably, they've found alternatives to the legal protections copyright gives. Like artists everywhere, they copy from the masters. They also have other ways of protecting their authorship interests: Architecture clients need full buildings designed, not just pictures of facades; architects can complain publicly about others who fail to give credit for inspiration, lowering the reputation of someone who copyright law might say has only used an unprotectible idea [see Ellickson]; and the great designers aren't just re-selling their last-years' designs in any event.
As Elizabeth Diller of Diller, Scofidio & Renfro put it, "The only way to avert the problem of plagiarism is to be a moving target. If your work is copied and that upsets you, it means you waited too long to move on." That's a motto more industries should heed.
It's Friday, so it must be stupid ideas time again. AP story (here on SiliconValley.com) to the effect that some libraries are "lending" audiobooks via download. The period of lending is controlled via DRM, which locks you out of the file if you run over your time.
This strikes me as a pinnacle of absurdity - lending libraries impose time limits on physical volumes because my possession of the book prevents another patron from reading it. Downloads... um, DON'T. All the patrons could download the same book and no one's having a copy on their hard disk would impede another's listening pleasure.
DRM might be justified if it attempted to prevent a patron making or distributing copies, but if I'm borrowing a book rather than buying it, what difference does it make how long I hold that borrow? Libraries permit patrons to renew or extend the lending period on a physical book, so long as there's no one waiting for it. There is no one sitting around waiting for me to finish listening to my download. Really. I promise.
(I'm not even going to get into the stupidity of having a download system that's incompatible with the majority player used by the community the library is supposed to serve - iPod. It's rather like a US library stocking volumes written solely in French.)
Is CNET recycling stories? Today's blip from John Borland claims that the latest offensive in the Cartel jihad against its customers is "the first time using peer-to-peer companies' own data to track down individuals accused of trading movies online."
That didn't seem right to me, not least because I've read and blogged stories from Borland in May (MPAA vs. TV Lovers) and February (Sue your customers...) on previous rounds of lawsuits that appeared to have been spawned out of the takedown of the LokiTorrent site, which included a handover of the site's log files. The MPAA sounds like it's being coy (it has no reason I can see to reveal its sources) and Bram Cohen (creator of BitTorrent) continues to warn people not to use the software for swapping since it doesn't contain anonymity features. Sure, but I bet there's a config file option somewhere that lets you set logfilelength = 0.
Many have boasted of the community-building aspects of P2P and the independent value of the sharing that goes on there. But those aspects shouldn't be exaggerated - I would be surprised if most of what happens on P2P is more than simply dumping music into a shared folder and then searching and downloading what one seeks. Perhaps I am wrong. In any case, if I am right, part of the reason P2P never evolved into a richer experience is because we sterilized it.
My hope is that these burgeoning taste-sharing tools can help restart a conversation about how technology can unleash a richer musical culture. We should be celebrating what technology can do for music. Who could object to consumers enjoying music more, enjoying a greater diversity of music, being more creative, engaging music more deeply, and coming together with each other because of music? That's the positive vision I'd like to explore in relation to these tools.
Ever since the FTA was signed off last year, and particularly since the whole fair use inquiry started, the copyright-obsessed have been wondering - when will the anti-circumvention laws be drafted, and how. Australia has until 1 Jan 2007 to bring into effect the anti-circumvention laws required by Article 17.4.7 of the FTA.
Anti-circumvention laws are the ones which make it illegal to 'circumvent' technological measures used by copyright owners to prevent infringement of copyright (although even that definition is controversial at the moment!). The most notorious example in the world is the US DMCA. Article 17.4.7 of the Australian FTA is modelled on the US DMCA.
There's a formal inquiry on the issue, with comments due by October 7, 2005 -- just over a month away.
Want to kick legal butt for the open source/free software community? Check out this new position at the Software Freedom Law Center, run by FSF's Eben Moglan and PubPat's Dan Ravicher:
STAFF ATTORNEY - SOFTWARE AND CORPORATE LAW
The Software Freedom Law Center, a newly formed not-for-profit legal
services organization that provides legal representation and other law
related services to protect and advance Free and Open Source Software,
seeks an experienced and entrepreneurial Staff Attorney with a strong
background in software for its New York headquarters. For more
information about SFLC visit www.softwarefreedom.org.
Via Siva Vaidhyanathan, a new website to help you keep up with copyright scholarship. Check out the latest law review articles by some very familiar folks -- including Sivacracy's Ann Bartow and Copyfight's own Jason Schultz and Ernie Miller.
Jon Stewart, responding to a reporter's suggestion that the producers of "The Daily Show" would take steps to stop people from downloading the program from P2P networks: "We're not going to shut it down -- we don't even know what it is. I'm having enough trouble just getting porn. ...The Internet is just a world passing around notes in a classroom." (Via Derivative Work.)
Hurray! Justice delayed ends up being justice rendered. Over a year ago, StorageTek managed to convince a district court in Boston to misuse standard copyright law and the DMCA anticompetitively and shut down an independent service vendor who offered repair and maintenance on StorageTek machines. (By doing so, StorageTek was able to leverage the vast majority of service contracts on its library units for itself.)
Today, the Federal Circuit Court of Appeals reversed [PDF] the trial court's order, holding that third parties can lawfully repair and maintain another company's software under Section 117 of the Copyright Act and, more importantly, that the DMCA cannot be used to sue such vendors when the repair and maintanence itself doesn't violate any rights under copyright law. The decision follows up on the Court's previous vindication of Skylink in its DMCA case against Chamberlain over garage door openers.
Here are some of the choice quotes from the opinion:
Here is where you can weigh in on the (de)merits of the Broadcast Flag, which not only threatens to return but has actually garnered new support [PDF] by the Center for Democracy and Technology. Public Knowledge responds here.
Given the ongoing conversation on libraries I couldn't resist blinking this piece from Ananova: Library Lends Out People. The idea is that you can "borrow" a person for an hour to chat about their lives.
That's the consensus at EFF after we took a look at Sun Microsystem's plans for an open DRM project perplexingly called "Open Media Commons":
Yesterday, Sun Microsystems announced its new "Open Media Commons," with a goal of "[s]pecify[ing] open, royalty-free digital rights management and codec standards" to "ensur[e] intellectual property protection." The problem with this approach is that making DRM "open" and "royalty-free" doesn't make it any less damaging and counter-productive.
People have the legal right to make fair uses of content. They have the legal right to use materials in the public domain. They have the legal right to use publicly owned works, such as government-gathered facts. Any software system, open or not, that blocks us from making these legal uses of our digital content is bad, especially when the Digital Millennium Copyright Act (DMCA) makes it illegal for us to circumvent the copyright protection to make these legal uses.
This "Open Media Commons" says a lot about fostering sharing and so forth, but there's precious little to indicate that it will be any less threatening than the Microsoft DRM that it's supposed to challenge.
Using "commons" in the name is unfortunate, because it suggests an online community committed to sharing creative works. DRM systems are about restricting access and use of creative works. We wish that Sun's announcement brought better news for people worried about DRM taking away their rights, but it doesn't.
My brand-new EFF colleague Corynne McSherry and consumer-rights advocate Ed Foster are tag-teaming to bring us the story of a company called Livingsoft that's decided to use its End User License Agreement (EULA) not only to interfere with first sale rights, but also to punish unhappy customers (see Corynne's piece here and Ed's here). The short of it: Livingsoft evidently allows customers who ask nicely to re-sell the product on eBay; those who don't like the product and say so, however, may not.
Explains Corynne, "[The company president told the customer that he] does sometimes grant permission to re-sell the software ..., but only if the seller has a physical or financial necessity (e.g., an injury or family financial crisis) and asks permission 'courteously' in advance, 'acknowledging that they are requesting a favor rather than demanding a right.'" [Ed.: like, oh, I dunno, the right of first sale?] This particular customer, on the other hand, had the temerity to complain that the software "sucks." Therefore, she would have to keep it forever.
As Ed points out, this is hardly an isolated incident. It's part of an ugly trend of companies using EULAs in arbitrary ways to undermine legitimate consumer rights. By including anti-consumer clauses in their click-wrap EULAs, companies like Livingsoft are forcing people to beg just to be treated fairly. Writes Ed:
[Whatever] restrictive language their attorneys want to the throw into a EULA is supposed to carry more weight than our traditional rights. Of course, if you ask real nice and acknowledge you have no rights of any kind, they may grant you a favor. I for one am deeply grateful for the favor Livingsoft has done us by providing such a stark example of how we can expect businesses of all kinds to treat their customers in the world to which we seem to be moving.
If you've had trouble selling software that sucks, you have people in your corner. EFF is gathering information to help people retain their rights in the face of these kinds of unfair EULAs. Send your story to email@example.com -- and be sure to include a copy of the offending EULA. We may be able to help.
Unfortunately, Cringely's attempt to discuss IP law is overgeneralized to the point of wrongness (patents don't protect ideas, they protect inventions). His basic thrust - you and I aren't being helped by attempts to reform patents - seems correct. He asserts that the majority of patents are issued to "smaller companies" (here he means smaller than Microsoft, which is a pretty big list) and individual. Is that true? Given the patenting engines run by IBM, HP, MSFT and not to mention the pharma/bio companies it seems like this may no longer be true. Cringely admits that he knows a number of individual inventors so this may just be his personal experience bias.
He also notes that the switch to first-to-file isn't really the problem with the US patent system, and goes on to list a number of problems implicit in the proposed "reform." Regardless of the details I think there is general agreement outside of the big patent-holding companies that this is a bad bill. Let's just hope Congress can actually manage to focus on the real problems with patents and not be distracted by this kind of boondoggle.
The physical change, of course, is only the surface manifestation. As Donna recently commented in this blog, a battle is ongoing to preserve the essence of libraries. Part of that battle is introducing the resources and capabilities of libraries and librarians to a generation that has come of age with the 'net, sometimes with the Internet/Web as their only or primary information sources. Colleges and universities are attempting to help undergrads connect the new online sources with the traditional written sources.
Interestingly, the article notes that our current version of libraries for undergrad study is not that old. Kris Axtman's story reports that "Harvard University created the first undergraduate library in the 1950s" - this is potentially incorrect. I called Widener (Harvard's Library) and spoke with someone who was a student there in the 1970s. He indicated that he needed a letter from a professor to access the stacks as an undergrad at that time. To some degree it depends on what Axtman meant by "created" I suppose.
The nice fellow at Widener promised to research the question and email me an answer. I'll update this blog entry when he gets back to me. Hooray for librarians!
UPDATE: based on research from Widener and anonymous comment on this entry, it seems that the appropriate date is January 1949 and it was Lamont library. See Lamont Library's history page.
William Patry, recalling the legislative process that brought us the Audio Home Recording Act of 1992: "[Our] subjective intention and that of the Committee, expressed in the Committee report, was to exempt all noncommercial private copying. ...[Because] I thought I was just fussing about drafting styles ..., I let it go. That was a big mistake. I missed that the phrasing was the way it was because it masked, in plain view, the real point, the severe limitation of the exemption to copying from a digital audio recording device. Shame on me."
Cory Doctorowreports that a UK ISP called PlayLouder MSP has secured a license from Sony that allows its customers to legally share any song in the Sony-BMG catalog with other PlayLouder customers: "This is such stupendously good news that I frankly didn't believe it...I spent the day going back and forth with the two [principals] from PlayLouder MSP, Paul Sanders and Paul Hitchman, and based on what they've told me, I'm prepared to say that this is the best thing to happen to the copyfight all year -- maybe all century."
It's pretty astounding. According to Cory, for the cost of regular ISP service, you get:
The right to share any song in the Sony-BMG catalog
Even if it's out of print
In any file-format
Using any file-sharing software
At any bitrate
The press release is here; no doubt we'll soon see a lot more happening here.
The Picker MobBlog about the failure of the DMCA to impact the "darknet" -- that is, to achieve its ostensible aim -- has officially ended, but it only takes one smart respondent to wander past the gates. Check out where Wendy Gordon arrives today:
[Both Fred von Lohmann's] paper and this blog have been concerned with the next question to arise: once we assess the (in)efficacy of the DMCA in doing what it was supposed to do, what are the costs to be weighed against the alleged benefit? ...
To pull this all together: What we've been calling the "retail" level is really the level of the lawful user. As several posters have pointed out, the DMCA doesn't stop unlawful copying by those people -- they'd obey the law anyway. For them, what the DMCA does is stop fair uses, and impose extra costs (and contracts) on the use of material that might otherwise be lawfully and freely available. So the DMCA can be seen as a law that hurts the lawful users, to stop the unlawful ones.
In turn, that reminds us of why the question Fred raises is so important: for what purported benefit does the DMCA sacrifice the lawful use of information?
Laura Quilter provides an excellent guided tour through the debate here and elsewhere over the Google Print library project, then goes much, much further, asking what we should do next if we want to 1.) preserve what's good about traditional libraries and 2.) fulfill the promise of today's (and tomorrow's) digital libraries:
But most librarians, myself included, want to preserve BOTH today's model of the library: the brick-and-mortar warehouse-and-cataloger-of-physical-media (which I do think will always be around) AND the idea of the library: the collector and provider of information. So the question is, how, or why, do we copyfighters / librarians / information activists / legal scholars distinguish Google Print in a way that doesn't hurt Essence of Library down the line? And why, tactically, should we? Maybe, we should focus on building a more robust fair use, fixing 109 so it works with digital media, or even adding in more 108 exemptions. Or maybe on the DMCA Library of Congress anticircumvention comment rounds that are coming up again.
Libraries pump the life blood of a democratic culture and a democratic republic: culture and information. They are places people escape from each other (imagine a gay teenager growing up in Boise without a library). And -- more importantly -- they are places where people come together.
The presumption that Google's powers of indexing and access come close to working as a library ignores all that libraries mean to the lives of their users.
There are a number of collateral consequences to the FCC's order, said Perkins Coie's Gidari, counsel to education, library and other associations that opposed the FCC's decision.
"I don't think the commission had a clue that what they were saying affected other facilities-based providers," he said.
"A lot of companies and organizations make broadband available to their work force, students, faculties, researchers and others. That's why Congress holds hearings, to determine impact. The commission put out an order only carriers would pay attention to," Gidari said.
"The notion a librarian would have to do a wiretap and is subject to felony penalties if she discloses it, is amazing," he said.
"That's what CALEA requires -- you have to have a security office, security procedures. In truth, that won't happen because the library will be closed because it has no budget for this. That's why this issue is important."
Applying CALEA to the Internet is in many ways like a combo 215/Broadcast Flag -- in short, it's a technology mandate to make it easier for the government (and others) to spy on people. The kicker is that it's not the government, but, rather, the "information service providers" and the customers/patrons/surveillance subjects themselves who will pay for it.
Intellectual property is important, but the appropriate intellectual-property regime for a developing country is different from that for an advanced industrial country. The TRIPS scheme failed to recognize this. In fact, intellectual property should never have been included in a trade agreement in the first place, at least partly because its regulation is demonstrably beyond the competency of trade negotiators.
Via the Pho list, the Dave Matthews Band giving fans directions for dealing with DRM-hobbled CDs and encouraging them to appeal to Apple to collaborate with others on an easier way to move music to the iPod:
INFORMATION REGARDING DOWNLOADING STAND UP SONGS TO IPODS
Please follow the instructions below in order to move your content into iTunes and onto an iPod:
If you have a Mac computer you can copy the songs using your iTunes Player as you would normally do.
If you have a PC place the CD into your computer and allow the CD to automatically start. If the CD does not automatically start, open your Windows Explorer, locate the drive letter for your CD drive and double-click on the LaunchCD.exe file located on your CD.
Once the CD has been burned, place the copied CD back into your computer and open iTunes. iTunes can now rip the songs as you would a normal CD.
Please note an easier and more acceptable solution requires cooperation from Apple, who we have already reached out to in hopes of addressing this issue. To help speed this effort, we ask that you use the following link to contact Apple and ask them to provide a solution that would easily allow you to move content from protected CDs into iTunes or onto your iPod rather than having to go through the additional steps above. Link.
Asks a Phoster, "[Shouldn't] they be petitioning their record company not to put DRM on their CDs in the first place?"
A parallel problem is that DRM often isn't used to "protect" music, it's used as a form of lock-in by device manufacturers and service providers. For instance, if somebody's bought a bunch of music from iTunes, what kind of MP3 player will they buy -- an iPod, or one that can't play their music? The same thing will play out in mobile as service providers, labels and operators all jockey for top position on the food chain. This doesn't really benefit anybody, least of which the end user.
Google's best case, it seems to me, is that it's hoping to provide "meta-information" about the underlying copyrighted works. Google has a few appellate cases in its corner Kelly v. Arriba Soft to start with, then Ty v. Publications International, and (I'd say) Sony v. Bleem, and Triangle Publications v. Knight-Ridder. But Google has to deal with the scope of its project which invites comparisons to less favorable opinions, like A&M Records v. Napster and UMG Recordings v. mp3.com (a district court case) and it needs to couple its Kelly argument with leverage from cases approving "intermediate" copying under certain circumstances (e.g., Sega v. Accolade). The opt-out option makes Google look less like the bad guy, but it may not help the fair use claim which I think is plausible but novel, and far from a slam dunk.
So, Laura suggests, Google should draw on the beneficence associated with "libraries" (think of George Carlin's description of baseball, which is all about going "home"). Even fair use skeptics have to agree: libraries do and should get a lot of slack under copyright law.
Is Google a library? Is there an "essence" of library a definition that Google can meet? Or can we say that Google is a library even if Google doesn't? Or what if Google says that its a library, but "we" (perhaps a court) say otherwise? Whose analysis gets deference? What if Google and a "real" library (Harvard? Stanford?) sign an agreement in which the contract specifies, whereas, Google and Stanford agree that Google provides library services via Google Print? Or should we simply conclude that Google should be characterized as a library because Google is doing something noble, and we all know that libraries are in the nobility business?
All of which is a roundabout way of suggesting that we should be focusing more on what Google does than on what Google is.
By the way, what if the service were named "Microsoft Print"? Or (since that sounds unfair to Microsoft) "Dr. Evil Print"?
To answer Michael (and Laura): Yes, there is an essence of a library. And no, Google does not come close. But Michael is right to focus on actions instead of essences. And here, as well, I would argue that yes, libraries do many things that Google can and will not.
There are serious ideological and practical distinctions that make libraries libraries and librarians librarians. And all the algorithms in the world are not going to replace them.
[Siva] quotes this argument approvingly, in which the author distinguishes between rhetorical appeal to libraries and a "real" fair use argument.
And as far as fair use is concerned, I don't think that this sort of analysis is distracting at all; I think that it gets at the heart of the problem. As a copyright lawyer I'm always skeptical of characterizing an argument as an "authentic" or "real" form of argument. Copyright is too plastic (to borrow someone elses word), and it operates at too many levels, for all that. "Google is doing what a librarian does" is a perfectly valid form of fair use argument the case reporters are filled with fair use decisions that are framed this way even if at the end of the day I think that the argument likely fails on the merits. Non-lawyers who encounter the fair use statute are tempted, understandably, to treat the text as filled with magic words (and as improved by magic words supplied by the Supreme Court, like "transformative"). The magic words are almost uniquely unhelpful, either as guides to what courts actually do, or as guides to what courts should do.
Well, NPD are back again, and their latest message is resonating with the RIAA. According to an AP story (here on SiliconValley.com) NPD are claiming that burned CDs accounted for a larger percentage of music obtained by fans than downloads did. The RIAA are, of course, pointing to this as a justification for more copy-prevention.
A very telling quote appears at the end of the AP story, where Virgin Entertainment Group International's CEO Simon Wright is quoted as saying:
If, particularly, the technology allows two-to-three burns, that's well within acceptable limits and I don't think why consumers should have any complaints.
And that, boys and girls, is the nub of the problem. The Cartel believes it should be able to extend its control past the sale of the product, past what the law might say, and into your and my houses and cars. Let's take a real-world example: my neighbors have two adult children that live with them. So that's four cars, and at least three CD systems in one household. How many copies of a given CD purchase should that family be allowed to make? None? One? Seven? And why does Wright think that my neighbors shouldn't complain if he makes it impossible for them all to enjoy their purchases?
By coincidence over on Reuters (story copy here on silicon.com) we read that "Legal music downloads [are being] held back by DRM." The gist of the story is that incompatible DRM systems (fingers pointing primarily at Apple and Microsoft) are somehow preventing consumers from downloading more music.
My first response is that this is a crock. I don't think DRM issues enter into anyone's minds when going to download music. ITunes is enjoying phenomenal success (what business wouldn't mind doubling its size year over year?) and Napster et al are sour-grapesing because their systems (which use the MSFT-promoted DRM systems) are lagging. Blaming it on the DRM is a smokescreen for having to admit "My customer experience sucks, the subscription model isn't working, and Apple are kicking my ass."
David Warsh's latest piece over at Economic Principals explains why his column isn't a blog (I think he should get over himself, but whatever) and has some interesting remarks on the profession of journalism from a long-time insider. He's also about to try going with a subscription-supported model, at which I wish him luck.
There's even a semi-public project, the OSx86 Project. The entire affair would appear to be massively illegal, not least because enabling the OS to run has required explicitly bypassing a software module (kernel extension) and associated Infineon hardware chip called TPM that is explicitly designed to stop OS X from running on ordinary PC hardware. If that's not a blatant DMCA violation I don't know what is.
That said, Apple's response to date has been muted. It may be that they're considering their options, or they may calculate that, on balance, this kind of experimentation and publicity is going to help their bottom line more than hurt it. I have no insider info.
(*) Full disclosure: I work for EMC, which also owns VMWare; I have no direct connection with that subsidiary.
Siva Vaidhyanathan attempts to clarify his position on Google's decision to pause the Google Print library project, stressing that his concern "has more to do with the potential repercussions...in both courts and in Congress than with the project itself":
[Basically], I feared that if Google were to go whole hog toward this project then courts would have had to react to the massive scale of the copying (which Derek calls intermediary but the publishers consider substantial nonetheless). If Google lost, the statuatory damages would have been just as massive as the project itself. That lovely IPO? Gone. Generations of cool Google innovations? Never happen.
Interesting. It appears that Siva's thinking on this is heavily influenced by how he imagines the courts would react.
Laura Quilter has an excellent post on the debate, pointing out that there's another court we need to consider (emphasis, mine):
Well, Siva says Google is not a library. It's true that Google is not the mom-and-apple-pie ALA version of a downtown library, complete with modern atrium and skylights for Mayoral gatherings. But I think we have to push on "library" for a bit. The Internet Archive is certainly a library. My home collection is certainly a library. (It even circulates, and I have remote storage, and I recently began a belated investment in DVDs.) Libraries may be private, semi-private, public; for- or not-for-profit; paper or digital. Why is Google not a library?
The massive amounts of media coverage given to the Google withdrawal confirm my opinion that tactically this sucks, for libraries, authors, readers and anybody else who actually uses copyrights. So much of this coverage is described as a copyright flap, Googles copyright misstep, etc. The bounds of fair use have just shrunk in the court of public opinion, and thats a much longer-lasting loss than American Geophysical Union, Napster or any other case.
[It's] quite possible to conclude that, from the industry's perspective, the fact that the DMCA was put in place while the technologies were still in their infancy is a feature, not a bug. I read the statute as intended in part (by its industry advocates, not by Congress) to establish a set of engineering incentives for new products and services, as to which consumers have no settled expectations, and to marginalize the open source movement (at least in the consumer market) by erecting insuperable obstacles to the development of interoperable entertainment platforms. Again, I think it's way too early to opine confidently that the statute isn't working toward these ends.
Here, I think Julie points us in the right direction. The legal regulation of TPMs [DRM] continues to pay one very large dividend to rightsholders, regardless of the Darknet: anti-circumvention regulation constrains innovation and competition in the technology marketplace, thereby ensuring, in the words of one entertainment industry lawyer, a "well-mannered marketplace."
Thanks to the DMCA, content owners deploying content with TPMs enjoy an important new "exclusive right"the right to demand that technology vendors enter a licensing arrangement before they can build a device that can access or copy the content in question.
The story apparently starts over on CNET, with a story by Elinor Mills on Google's CEO, Eric Schmidt. Mills starts with the skimpy information on Schmidt at his home page and then - using Google itself - proceeds to reveal all sorts of interesting information about the man, his income, his abode, his hobbies. She then goes on to make the point that Google potentially knows a lot more about you than you might think, particularly if you use services like gmail or its desktop accelerator.
Google apparently took this research endeavor personally, informing Jai Singh, CNET News.com founder and top editor that nobody at Google would speak to him or anyone else at News.com for a full year. According to Adam L. Penenberg's story on WIRED, Singh is taking the high road for now, pointing out that it's really in Google's best interest not to blacklist any news organization, since that organization is going to be writing stories about Google no matter what and it's foolish for the company not to have its voice in those stories. It's not as if they're harming News.com in any way.
Not satisfied with the high road, the UK sister publication ZDNet UK issued a mock apology from apparently their entire staff. The apology is rife with the infamously dry British humor, apologizing for the sin of using Google as a search engine and promising to:
cooperate fully in helping Google change people's perceptions of its role just as soon as it feels capable of communicating to us how it wishes that role to be seen.
I really can't add anything to that. Go read the original.
Professors are always on the look-out for the "teachable" moment -- that all-too-rare real-life situation that helps demonstrate an abstract, difficult-to-teach point. That's part of why I was morbidly fascinated to hear about the roll-out of "copy-protected" (DRM-hobbled) electronic textbooks at Princeton University, where Edward Felten teaches computer science while writing -- brilliantly -- about how DRM and the Digital Millennium Copyright Act (DMCA) conspire against learning.
There was no book-cracking, but I was hardly disappointed. Professor Felten took the opportunity to distinguish between simply disliking DRM products in the marketplace (don't buy it) and disliking DRM + law and policy like the DMCA because it interferes with the marketplace (you're screwed). "The problem with DRM is not that bad products can be offered, but that public policy sometimes protects bad products by thwarting the free market and the free flow of ideas," he wrote. "The market will kill DRM, if the market is allowed to operate."
I suppose we can see "the market" at work in the electronic textbook company's decision [PDF] to extend the period of time before the digital ink disappears from these "books" (now you can get a year or more of still-restricted use). I can't get very excited about it, though. The move from analog to digital always seems to mean leaving behind the traditional rights and freedoms that nurture real learning. Sure, you'll pay less for hobbled textbook than you would the real thing, but you also pay less for a McDonald's hamburger than you do for one that's actually good for you.
So we made a little noise about these rent-a-textbooks, and the distributor responded by granting a few more rights -- because it's in that vulnerable roll-out stage where the customer can determine whether or not a product will be successful. Once you achieve buy-in, of course, you no longer have to listen so hard to what your customers want. As I've written here before, that's where Microsoft, the giant of market giants, sits -- poised to make the general-purpose personal computer into an entertainment appliance that listens to Hollywood, not you. Like the hobbled textbooks, it will let you do less. Unlike the hobbled textbooks, it will cost you more. And of course, the implications reach much further.
Over @ Freedom-toTinker, Don Marti had a few thoughtful observations about why Microsoft is moving in this direction. Now, both Fred von Lohmann and Seth Schoen have followed up:
Writes Fred: "Hollywood is saying, loudly and to anyone who will listen, 'unless we get content protection that satisfies us, our next-gen high-definition video will not be on your platform.' Since there are only a handful of major studios who control 90%+ of commercially important film and TV content, this kind of cartel threat is relatively credible.
In the past, this would have been an empty threat, since someone could just build a device to play their content, whether they liked it or not. Not so since 1998, thanks to the DMCA. Now, if Hollywood encrypts its content, tech vendors need to get permission before they can build a device to play it."
Writes Seth: "For Microsoft, the licensing game is a great anticompetitive opportunity because it can use its dominance and mindshare in one area to get dominance and mindshare (and licensing revenue) in other areas, and then keep going round and round with this strategy in subsequent technology generations. A permission-required culture for innovation looks less scary when you're on the inside of the barriers to entry looking out, instead of on the outside looking in."
So what do we do about this? There's no single answer. You can complain (but you may not be heard). You can not buy (but others will). Or you can fight at the law and policy level -- joining or funding organizations that fight to keep innovation and free competition alive. Letting your representative know you don't support technology mandates that outlaw open-source alternatives to permission-culture products. Supporting politicians who fight for consumers' rights. Evangelizing so more people understand what they've got before it's gone.
One thing I learned after posting about what "copyfight" means is how new the movement is for many people. I'm developing a copyfighter's H2O playlist that will help newbies, but in the meantime, if you don't know about them already, here are a few good starting points for the "action items" above:
This week's IP follies continue with Marty Schwimmer's coverage of the battle over who owns the million-dollar idea of creating a TV show about pitching million-dollar ideas:
February 20, 2003: Alleged date of first use for MILLION DOLLAR IDEA in relation to product and invention evaluation services, and entertainment services ('low-power' TV show), by Roaring Entertainment.
March 2004: Roaring pitches Andrea Wong, head of reality programming at ABC.
"Simon and Peter have conceived a fantastic show," said Andrea Wong, executive vice president, Alternative Programming, Specials and Late-Night, ABC Entertainment. "Somebody out there has thought of the next Post-it Note or Starbucks, but they don't have the means to actually make it happen. It's going to be thrilling to find that person and make his or her dream a reality."
Google did not have the right to make wholesale copies of millions of copyrighted books without permission from the copyright holders. Google's original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.
If copyright is to mean anything at all, then corporations may not copy entire works that they have never purchased without permission for commercial gain. I can't imagine what sort of argument -- short of copyright nihilism -- would justify such a radical change in copyright law. [...]
If the University of Michigan wanted to do this copying for its own patrons, then it certainly could. I wish more libraries would push their rights under copyright. But corporations do not have the same leeway as libraries. Libraries work for us. Corporations work for themselves. [...]
So I am very pleased that Google has decided to work with publishers (like it said it would originally) to convince them that offering their text in searchable form is good business for all. I still have some major problems with the contracts that these libraries signed with Google. I think the libraries are getting played badly here and they are violating their own principles of openness and public service by letting Google take charge and set the terms of this service.
Google might be a very good corporation -- one of the best ever, probably. But it's still not a library. Let's try to remember that.
[The] caselaw doesn't amount to what Siva implies it does. Though it's only a brief citation, it seems Siva seriously misreads American Geophysical Union v. Texaco. The court didn't rule against Texaco because it was a corporation. In fact, the appeals court specifically disagreed with the district court's "undue emphasis" on the for-profit nature of Texaco.
We can put aside caselaw and go to straight-up normative analysis - Siva thinks that this Google Print is bad, bad, bad. What I see is gross hyperbole. What Google's doing is nothing like widespread infringing file-sharing on P2P. Sure, they're copying the entire book, but they're only providing small selections. I don't see how that amounts to a "copyright meltdown." (I know that you can try to do different searches to over time accumulate the whole book, but Google does enough to frustrate that, I think.)
Libraries good, corporations bad doesn't ring true for me. Without a doubt, I'm glad that people are becoming more skeptical of Google, despite their "we're not evil" mantra. However, in this case, Google was providing an important public service, one that happened to benefit the company commercially, but one that also did not pose a serious threat to copyright holders (in fact, it probably would help them), and for those reasons I think Google Print should be lawful.
...even if their record company tells them not to.
Downloadable music wasn't much in Japan, until about a week ago. Then iTunes hit the Japanese market and four days later a million new downloads had been racked up. The company's local catalog boasts about a million song titles from fifteen of Japan's record labels.
However, some of those left out want in, even if their nominal record label (*coughSonycough*) would rather they sat home. According to an AP wire story (here on SiliconValley.com) at least one individual artist and a major management agency are seeking to do deals directly with Apple.
The snark factor here is incredibly high. Not only does music want to be free, so do musicians. That's "free" as in "free to pursue new and potentially profitable ways to connect to fans." Once again the Cartel puts control over all else - Sony wants to control the download of music from production through distribution, through the service you use and all the way to the devices you're allowed to use to listen to it. This control serves only the corporate interests, despite their attempts to dress it up as being in the artists' interests. Given even the slightest crack of light the artists will promptly bolt for the door.
I've been trying to avoid writing about the ongoging feud in next-generation DVD technology, mostly because I consider it stupid. The competition serves no one, and most certainly is a detriment to consumers, who would be best served by a broad market of compatible devices all working to a unified public, open standard.
In this case, the flap is over the fact that Blu-Ray have added DRM features that both mirror and extend the controls that competitor HD-DVD wants to offer. Both systems use the Advanced Access Content System (ACCS), but Blu-ray want to add something to ACCS that they're calling BD+. Tom's Hardware guide has a detailed explanation of what appear to be Blue-ray's plans: throw the kitchen sink in, too. According to that story, the set of DRM features include "phone home" capabilities, self-destruct, and additional ecryption.
So dumb idea the first - have two competing standards - is compounded by dumb idea the second - believing that technical superiority will determine which standard ultimately succeeds. History shows that either marketing+content will beat superior technology (VHS over Betamax) or rapid industry change will bypass the competing standards altogether (as DVD bypassed numerous competing laser disk formats).
If you're interested in tracking how the major media report stories (or fail to report, see this entry, for example) you might want to add Media Matters for America to your blogroll. In my limited experience they seem to be pretty left-liberal oriented and coverage is pretty scattered. But there are enough gems to be worthwhile, I think.
As you undoubtedly recall, months ago Google launched their Google Print Library Project scanning thousands of books from the country's libraries for potential search, putting up whatever fair use or the publisher would allow.
Publishers, in typical copyright-holder paranoia fashion, worried that perhaps the two line snippets Google would be providing of their books would spell the end of the world for their entire industry. They wrote articles attacking Google for their cruelty and finally, today, Google announced it would back down.
That's right: Google won't even scan any book copyright holders ask them not to, even though doing so is perfectly legal. It's as if copyright holders got to dictate what books get placed in libraries. Their short-sighted selfishness will cost us all, depriving us of our heritage in our online Library of Alexandria.
According to Paul Festa at CNET, the US Copyright Office is soliciting comments on a proposal to create a Web service for prospective copyright owners that would support only Internet Explorer (IE). I just don't have the energy for the level of sarcastic commentary this really deserves. As a usability professional and a Web designer I sympathize with the problems of multiple browsers and incompatible levels of functionality. But I can't conceive of a reason for the national government not to produce a system that uses the basic, commonly supported technologies that would enable a wide variety of accesses.
Apparently they're pointing the finger at the underlying implementation technology, which some sort of Siebel software. Seems like a pretty poor excuse to me.
In this case the dumb idea is "claim any IP use we don't like is a DMCA violation." It's been a while since we've seen one of these stories and the latest one is likely another tempest in a teapot. But here goes:
Kristen Philipkoski has a story on WIRED about Jose Avila. What makes Avila typical is that he's a creative software development guy who had to move around for job reasons and at the moment is stuck paying two rents. What makes him atypical is that he's responded to this situation by creating furniture for himself entirely out of FedEx boxes - they're sturdy, you see. Avila has an architecture background and he created a Web site (fedexfurniture.com) to document his process and results.
For some reason, this upset FedEx and their lawyers insisted he take down the site, claiming that the site infringed on its trademark and copyright. In specific, they claimed DMCA violations. Say what? Avila is being represented by lawyers from the Stanford Law School Center for Internet and Society who pointed out that FedEx's claims really appear to be about trademark infringement and conversion (link courtesy of Philipkoski's article) neither of which are coverd by the DMCA.
As of this writing the site is back up and FedEx's next move is unclear.
Techdirt has an amusing article about that delightfully original, fresh piece of filmmaking starring Jessica Simpson, "The Dukes of Hazzard." Evidently, it was inspired by an equally novel, why-didn't-I-think-of-that, Hey,-there-is-something-new-under-the-sun-after-all late '70s television show called "The Dukes of Hazzard." And that show, in turn, was inspired by the original original work of singular artistic genius, a little-known movie called "Moonrunners." And that movie, in turn...
No, wait. That's where it ends, for now. Which is why the makers of the Jessica Simpson version had to cough up $17.5 million to the rights holders for "Moonrunners" -- according to Techdirt, more than they paid for Jessica herself.
...(and with permission). Neil Gaiman posts about a very cool effort to raise money for the First Amendment Project. A number of "names" in the writing business are auctioning off the opportunity to have your name (and/or physical description) applied to characters or things in literary works, including Stephen King's new novel Cell, a Lemony Snicket book, a Jonathan Lethem Marvel comic, a gravestone in Gaiman's next childrens' book or a LOT more. I counted 16 offers up on the eBay page linked below, and there may be additions coming.
There were a quite a few excellent posts; if you check out the links embedded in the opening paragraph of the announcement, you'll find an extra handful of top contenders. Here's one of my personal favorites -- an entry that Copyfight readers will especially appreciate:
Mockingbirds Must Be Free to Sing: "For me, [the copyfight] means continuing to assert, even if none will listen, that the freedom to draw from shared fountain of musical and literary expression of the past -- known to lawyers as the public domain, or the works that are publici juris -- is a freedom that exists, and ought to exist as a matter of right, and that needs no justification. It is the monopoly restrictions that the law builds by taking away parts of this freedom from us--the so-called copyright laws--that need to justify themselves over and over again, and to be kept within reasonable limits by a watchful public."
To counter this misleading campaign, a few good souls "stole" the idea and started the Thought Thieve$ film competition "about big companies stealing and profiting from the knowledge commons."
Think about it: how would you feel if you saw your cultural traditions, collective creativity, thousands-year-old seed strains, indigenous medicinal knowledge, or even your very genetic code being passed off as the property of some multinational corporation? What would you do?
More information on the competition is available here. As Derek says, feel free to "steal" the info and pass it along.
With nearly six years at Harvard's Berkman Center for Internet & Society under my belt, I can offer a ringing endorsement of it as a place to work and learn. John Palfrey in particular is a fair, kind, and inspired-yet-practical leader; he knows how to guide creative people without stifling their creativity. The faculty members are each one-of-a-kind, once-in-a-lifetime characters with complementary skills for keeping the Berkman Center on the cutting edge of intellectual and technological exploration. The center is hiring right now; if you read this weblog, you probably want to work there, but (perhaps) don't know it yet. Check it out.
Siva Vaidhyanathan recommends a First Monday piece by John Willinsky that looks at the "unacknowledged convergence of open source, open access, and open science" -- developments that share "a commitment to economic principles based on (1) the efficacy of free software and research; (2) the reputationbuilding afforded by public access and patronage; and, (3) the emergence of a freeorsubscribe access model." Looks fascinating.
You might imagine that copyfighters are exaggerating when they talk about technologists asking Hollywood for permission to innovate. You'd be wrong.
Over at Freedom to Tinker, Edward Felten has posted snippets from a Microsoft white paper on the forthcoming "Windows Vista" operating system. They show Microsoft giving Hollywood explicit veto power over parts of the operating system functionality. For instance:
Content industry acceptance
The evidence must be presented to Hollywood and other content owners, and they must agree that it provides the required level of security. Written proof from at least three of the major Hollywood studios is required.
What are the implications? As Derek Slater writes at Deep Links:
With its entertainment industry accomplices, Microsoft is turning your general-purpose computer into a toaster -- a content-vending appliance that obeys copyright holders, not you. As Felten explains, your PC will cost more and do less.
It will also make criminals out of more and more legitimate technology tinkerers and average users. To modify practically any part of your PC and use the software or hardware of your choice, you'll have to circumvent DRM in ways that may violate the DMCA.
Meanwhile, Microsoft's new DRM will do nothing to prevent widespread infringing distribution of copyrighted content -- the illegal activity that the restrictions are supposed to target.
So why should Microsoft give in to Hollywood's demands? According to Linux guru Don Marti, Microsoft isn't caving. It's just doing what's best for the company:
Isn't it time to drop the polite fiction that MSFT and other incumbent IT and CE vendors are only doing DRM because of big, bad Hollywood? ...[Having] "Hollywood" clamoring for harsh DRM (based on technical facts from the IT industry) actually helps the current market leaders. ...
With DRM, MSFT and Apple can keep their customers from switching back and forth (or maybe to Linux), and CE vendors can't lock out $39 Chinese DVD players, but can at least collect a tax on them.
In other words, this isn't about stopping mass copyright infringement or pleasing Hollywood. It's about keeping "consumers" locked in and people who develop potentially competing products locked out.
Edward Jay Epstein has a nice piece on Slate (audio broadcast on NPR) explaining some of where Hollywood makes its money. Turns out most of it comes from what Epstein calls the "El Dorado" that is television licensing. Ninety percent of the licensing revenue from TV is profit, versus about 2/3 of revenue as profit from DVD sales. Actual theatrical showings are money losers, as even the vastly increased ticket prices and ads stuffed before showings don't cover the studios' publicity and marketing budgets for major films. It costs studios about USD 1.4 for each $1 in ticket revenue generated.
The article also includes other financial tidbits, such as the assertion that the wholesale price of a DVD is around $5, meaning that retail mark-up is 100-400%. Finally, Epstein delves into the way that this revenue arrangement has led television to drive the studios and how that hurts independent movie producers, who don't have the huge television revenue stream on which to rely.
A friend/Tori fan pointed me at the Tori Amos "bootlegs" site. OK, let's see. If it's approved by the artist, created by her record company, officially released, marketed with the full power of the Cartel, that makes it a bootleg precisely how?
As Cardozo law professor Susan Crawford recently noted, there are a lot of "acrimonious acronyms" in the battle over the future of the Internet. One of the most dangerous: the Communications Assistance to Law Enforcement Act, better known as CALEA.
Back in the Clinton era, the FBI asked for a law to force all telecommunications companies to build backdoors into their networks for easy government spying. As part of the desperate Capitol Hill horse-trading before CALEA was passed, privacy advocates won a concession: the new law would not apply to providers of information services such as email and Internet access. But as of Friday, that's no longer the case. The Federal Communications Commission (FCC) has issued an advisory stating that it has granted the FBI's request to expand the scope of CALEA to include Internet broadband providers and certain Voice-over-IP (VoIP) providers.
So what does this mean in practical terms? It means the government will be asking broadband providers -- as well as companies that manufacture devices used for broadband communications -- to build insecure backdoors into their networks, imperiling the privacy and security of citizens on the Internet. It also means that technological innovation will be hobbled as companies involved in broadband are forced to redesign their products to meet government specs.
This is bad news on multiple levels. "Expanding CALEA to the Internet is contrary to the statute and is a fundamentally flawed public policy," says Kurt Opsahl in EFF's press release. "This misguided tech mandate endangers the privacy of innocent people, stifles innovation, and risks the functionality of the Internet as a forum for free and open expression."
And the government isn't stopping there. The Department of Justice (DOJ) is asking airlines to build similar backdoors into the phone and data networks on airplanes. EFF and the Center for Democracy and Technology (CDT) last week submitted joint comments [PDF] with the FCC to oppose this unprecedented, sweeping new technology design mandate and anticipatory wiretapping system.
As the press release points out, the proposal to expand CALEA to airline broadband illustrates the fallacy of law enforcement's rationale for its CALEA request. To avoid the statute's carefully crafted compromise -- the total exclusion of information services from the CALEA's reach -- the DOJ argues that CALEA covers broadband services because they have "substantially replaced" the local telephone exchange. But airplane communications have hardly "substantially replaced" local telephone services. This request is about opening the door for CALEA to cover just about anything.
EFF's CALEA FAQ gives it to you short and not-so-sweet:
Q: "Is the FBI trying to dictate how the Internet should be engineered to permit whatever level of surveillance the FBI deems necessary?"
A: "Yes. What the FBI is really asking for is a massive overhaul of how the Internet works to make it easier for federal agents to listen in on people's digital conversations. EFF believes that law enforcement should not be allowed to have veto power over proposed innovations to the Internet in order to make spying easier. In addition, federal agencies should not force the broadband industry -- and by extension, its consumers -- to bear the considerable costs of purchasing and implementing surveillance-ready network technologies simply because it suits the government's needs."
In other words, the government not only wants service providers to make your private communications easily open to government surveillance, it also wants the providers -- and therefore you, the customer -- to pay for it.
Normally I try to get fun stuff to post on Fridays; this one is just a bit late.
Savefile.com is offering free anonymous file uploading (and downloading). Their FAQ explicitly states no copyright-violating material but I'm not sure how they're enforcing it. Still, it beats holy heck out of email attachments.
Rense.com posts on "virtual" street art by English artist Julian Beever. The artist specializes in anamorphic images - that is, images that appear 3D when viewed from the proper angle. Impressive trick, to say the least. For fun, count the number of potential trademark & copyright violations just in this set of sample images.
I find the contrast between the permanence of body art and the transience of street art fascinating. When I look at new legislation, new court rulings, or the other things that fill this blog most days I try to keep in mind the huge variation in forms of expression and the people making those expressions.
Berkman Fellow Urs Gasser channels Fred von Lohmann in this Wired piece last week on an inducement-like clause in the proposed EU Directive [PDF] that would criminalize indirect copyright infringement: "Just within Europe you would have to care about many different standards and about what they exactly mean, and what 'inducing' and 'inciting' exactly mean...You may have intended for the software to share files within a company, but later (copyright) movies are exchanged...Would you want to put money in such a firm?"
Update (August 8): For more in this vein, check out Irish pioneer pilloried for file-swap software, in which a tough-talking Conor Flynn, the technical director of an Irish information security company, criticizes Ian Clarke's Freenet because it can be used for "malevolent and malicious purposes." Adds Flynn, "The ability to remain anonymous while surfing the web is dangerous."
Update #2 (3:13 p.m.): Techdirt has a post picking up on the anonymity angle: "The worries are that such systems will be used by terrorists -- but then ignores the idea that in taking away anonymity it opens up the very real possibility that the lack of privacy will be abused, allowing the government to take away free speech from those they disagree with."
Textbook is locked to the computer where you downloaded it from;
Copying and burning to CD is prohibited;
Printing is limited to small passages;
Unless otherwise stated, textbook activation expires after 5 months (*gasp*);
Activated textbooks are not returnable;
Buyback is not possible.
There an official press release from the publishers for download here. It talks up price discrimination as a feature -- cash-strapped students won't have to pay as much for hobbled textbooks that disappear from their computers and can't be returned or resold to recoup costs. Isn't that nice?
I'm envisioning students taking Internet law and technology classes conducting their own experiment with these textbooks: documenting the ways they block the traditional activities associated with learning and scholarship.
Update: Professor Felten, who has been deluged with requests for comments: "First, a correction. As far as I can tell, Princeton University has no part in this experiment. The Princeton University Store, a bookstore that is located on the edge of the campus but is not affiliated with the University, will be the entity offering DRMed textbooks. ...
In any case, I don't see a reason to object to the U-Store offering these e-books, as long as students are informed about the DRM limitations and can still get the dead-tree version instead. ...
I don't object to other people wasting their money developing products that consumers wont want. ...The problem with DRM is not that bad products can be offered, but that public policy sometimes protects bad products by thwarting the free market and the free flow of ideas. The market will kill DRM, if the market is allowed to operate."
Stanford CIS Excecutive Director Jennifer Granick is the talented criminal law attorney who has been helping Michael Lynn sort out what to do in the face of legal threats over his BlackHat conference presentation about problems with Cisco's security. In the second post in a series on "Ciscogate," Granick picks through the grab bag of legal claims in the Cisco/ISS complaint [PDF], giving her take on the legitimacy of each claim. The result is an educational look at a range of legal tools that can be leveraged to silence people: copyright law, trade secret law, end user license agreements (EULAs).
Here, Granick makes short work of the copyright claims:
You'll remember that I wrote yesterday that ISS claimed copyright in the slides Mike used on Wednesday morning. I hadn't seen the original ISS slides, but I imagined that they looked different but had similar bullet points or words. This wasn't very interesting to me. I would argue that the bullet points were unoriginal and not deserving of much copyright protection, or that it was fair use, or that Mike jointly retained the copyright with ISS, but none of this is particularly fun. The second copyright claim was Cisco's in the decompiled code. Certainly Cisco has copyright in the source code, and I suppose in the binary, too, and therefore it probably has copyright in the machine code as well. But Mike only used little edited snippets of the machine code to illustrate his points about how he found the IOS vulnerability and why it existed. This was classic fair use, something important to defend, but only kind of fun, if only because it was so damn obviously permissible.
The two posts are worth the read in full, especially for those curious about the legal paths available to people like Lynn who have information they believe they must share with the public:
I feel like I've fallen through the proverbial Looking Glass here, into a world where mental concepts are accorded the same (or greater) status than actual physical objects. I can't even begin to understand the thinking behind this. For pete's sakes, people it's only ones and zeros!
Entertainment Industry Pretending to Have Won Grokster Case
Edward Felten, unpacking the entertainment industry's spin on Grokster: "It's a simple message. Investing in technologies that have been blessed by the entertainment industry: right; investing in other technologies: wrong.
But it's not what the Court said. The Court rejected the proposition that P2P or other communication technologies can exist only at the pleasure of the entertainment industry."
A friend pointed me toward Rabble, a product from Intercasting Corp, itself founded by three ex-MP3.com execs. Rabble is an application for cell phones and similar handheld devices that is integrated with popular blogging applications. "Sort of like myspace, but for your telephone," he says. It's also got some integrated local search capabilities to give you access to nearby blogs.
The target market is the ever-popular 14- to 25-year olds, for whom cell phones are a far more integrated social device than they are for older cell users.
Starting to gain some traction in Europe; completely unknown in the US: IPTV. It's pretty much what you'd think from the acronym, an IP-based way to multicast television over the 'net. IPTV News seems to keep pretty good track of what's going on with it.
Susan Crawford provides a short history of "acrimonious acronyms" in the copyfight -- bad laws like the notorious "Hollings bill" (or CBDTPA) -- and proposes adding another to the list: the "Broadband Investment and Consumer Choice Act" (or BICCA):
Indirectly, [BICCA] aims to do the same thing that SSSCA, CBDTPA, and the [Broadcast Flag] tried to do. ...The whole point of BICCA is that it dismantles any interconnection obligations for broadband providers. These obligations go upwards -- so there's no requirement to allow all applications or content to be permitted or carried on the network. And they also go downwards -- so there's no requirement to allow all user devices to be attached to the network.
Unauthorized devices (such as untrustworthy PCs) would quickly become very unattractive to users. What's the point of owning something that isn't authorized to connect to any broadband network?
The missing link here is, of course, the incentive of the broadband providers to allow only authorized devices to connect to their networks. Why would they want to frustrate their customers? Well, if the only way they can get access to really great big media content (the kind of thing they think consumers really want) is to make deals with content companies to have "mini-Hollings" terms of service, I bet they'd do it. And law enforcement would like to have a regime of locatable, authorized devices in place as well. Gradually, incrementally, the world of "authorized devices" might narrow.
Public Knowledge has been taking the initiative, post-Brand X, on getting people up-to-speed on why they should support network neutrality. For much more on the issues at stake, check out PK's Broadband Policy page.
Brookings Institute Scholar Ben Klemens has a nice little OpEd over on BI's site about patent reform and why there is an important difference between software patents and other kinds of patents:
However, the key distinction between a drug and a method for using a computer is that few of us own the equipment or have the desire to manufacture drugs. Meanwhile, computers are ubiquitous--and as a result, so is software authorship. If you are reading this at work, there is probably someone in your building writing software right now: perhaps in the form of a company web page, or a script to make the accounting database work better. Thus, a patent on a drug creates potential liability for those companies in the pharmaceutical business, while a software patent creates potential liability for any company with its own website or software customizations, regardless of its business.
From the producers of "Grokster/BrandX" comes a MobBlog that will keep you hovering over your laptop from start to finish, never letting up on the tension until you decide that you, too, must join the discussion. Featuring Fred von Lohmann as a man who must come to grips with legal and technological forces beyond his control, "Measuring the DMCA Against the Darknet" opens Internet-wide on August 15.
Mac-tatooedCory Doctorow on reports that Apple's new kernel will make use of Intel's Trusted Computing hardware (Slashdot: Mac OS X Intel Kernel Uses DRM): "Trusted Computing in the kernel is like a rifle on the mantelpiece: if it's present in act one, it'll go off by act three."
[T]he two different versions of the two different audio editions are already up at Amazon. The CD version comes on 15 CDs. The MP3 version comes on two CDs. I've been lobbying for an MP3 version of books for years -- Harper Audio hesitated for a long time because they were worried about people buying them and then complaining that they didn't play on their CD players (a not unreasonable concern).
The MP3 is meant to be priced cheaper than the CD one -- after all, it's two CDs instead of 15, and a lot of the cost of a CD pack is the packaging -- but it looks like most online retailers are discounting the CDs, while no-one is discounting the MP3 CDs yet (and most online retailers aren't even listing them).
I am still interested in tracking the progress of experiments such as these. Big-name authors and other creators often have leverage and financial safety to experiment in ways that mainline creators don't. I'm pleased to see things are finally, slowly, grinding forward.