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.
Intellectual Property Watch: "After a week of meetings at the World Intellectual Property Organisation General Assembly, the United States is possibly alone in firmly objecting to the continuation of a high-level meeting on a proposal for a WIPO development agenda." Quelle suprise.
William Patry, commenting on the news that some authors and book publishers are unhappy about sites like Amazon.com offering books for sale at different prices -- i.e., list price, sale price, used book price:
It is really no fun to write about copyright owners acting like Luddite pigs, and being in private practice it has a definite commercial downside; I would much rather praise Caesar. But, things are as they are, and I have always opted for honesty over craven brown-nosing and over self-imposed censorship. I hope my twins forgive me. ...
I buy the vast majority of my books through amazon.com and pay alot of attention to the choices they offer for the book I am interested in. Choice is bad, apparently. I should have to pay list price and I shouldn't be able to resell it (at least through amazon.com) without amazon.com sending a check to the publisher, who will of course pass 100% through to the author, at least that is what a literary agent is quoted in the article as advocating.
Sad, is the only polite word I can think of for authors and publishers' utter failure to embrace an extremely beneficial system. The first sale doctrine was judicially created by the Supreme Court pre-1909 Copyright Act in order to prevent publishers from misusing copyright to maintain list price. Some things truly never change.
Canadian Recording Industry Association (CRIA) President Graham Henderson, in a Hollywood Reporter piece on the group's support for "tighter" copyright law because it will stop teens from illegal downloading: "We want the Canadian legislation to look like American and European legislation, because it's working there."
I suppose that's right, if by "working," you mean, "not working."
Writes Michael Geist:"Perhaps the most telling response [to the CRIA media campaign] came at the Bill C-60 Open Forum yesterday. The CRIA release was mentioned by one of the speakers. The entire audience from all sides of the copyright debate just laughed."
PVRblog found a service that sounds like something out of a law school copyright exam: Rent My DVR.
Never miss your Favorite TV Show again!
Now you don't have to remember to program your DVR or VHS to record you favorite TV show. With the Rent My DVR site you can simple hire someone that will do the recording for you.
Simply file a request on our site to have someone record for you and as soon as a new episode of your favorite show has been broadcasted, it is downloaded automatically to your computer and you can watch it whenever you want.
The site appears to be a "matchmaker," facilitating digital transfer of shows from someone who has recorded them to another who wants to watch it. (It also says it's based in Sweden, but since I know U.S. copyright law better, I'll stick to that.)
The site analogizes its users' activity to the time-honored practice of giving or lending a videotape to a friend -- without the videotape. So would judges extend fair use protection to this transposition of an offline use, or would they trip over the fact that multiple "copies" are being made? If there's infringement, is RentMyDVR a contributor, vicarious assister, inducer?
Jennifer Granick's story in Wired about a cell phone company using copyright law and technology to lock customers into their service:
Last week, I was contacted by a small company that I'll call Unlocko. Unlocko sells software that "unlocks" mobile phones so owners can select different cellular providers on the same handset. The company had received a cease-and-desist letter from a large mobile phone provider, which I'll call CellPhoneCo.
Like most U.S. cellular providers, CellPhoneCo electronically locks the handsets it sells so the phones can only be used with CellPhoneCo's service. CellPhoneCo claims that the sale of unlocking software is illegal.
The financial motive behind this claim is obvious. Companies have been using the razor blade business model to guarantee a steady stream of revenue ever since, well, the razor blade.
...with this article in which the Trusted Computing Group (TCG), a group developing specifications for cell phone-lockdown, implies people have nothing to fear because these "security" features will be optional, whilst a TCG-friendly analyst calls concerns about its anti-consumer applications "extremely paranoid."
Just in time for government hearings on the proposal for copyright reform in Canada, uber-copyfighter Michael Geist has announced publication of In the Public Interest: The Future of Canadian Copyright Law -- a 600-page peer-reviewed book that covers every aspect of the current bill from a public-interest perspective, including essays from 19 copyright experts on future issues such as user rights, copyright term, and crown copyright. But that's not all. Writes Geist:
[The] publisher (Irwin Law) has published the book under a Creative Commons license so the entire book can be downloaded for free. This marks a first for a major Canadian publisher and we've agreed to donate any royalties back to CC.
Additional details are available @ Professor Geist's website, where he writes, "As we embark on a debate on the future of Canadian copyright, we need to hear from our own experts in their voice. This book moves us in that direction. Buy it or download it, but most of all read it."
Gary Shapiro, head of the Consumer Electronics Association (CEA), speaking before a congressional committee on "Protecting Copyright and Innovation in the Post-Grokster World": "Right now the recording industry is approaching another Senate committee with a proposal to give the FCC broad power to impose design requirements on new digital radios. Unlike the TV 'broadcast flag,' the proposal from the Recording Industry Association of America (RIAA) is not aimed at mass, indiscriminate, anonymous distribution of content over the Internet. The RIAA digital radio proposal is aimed squarely at limiting noncommercial recording entirely within private homes and automobiles."
...there will be Wikibooks. OpenCourseWare is MIT's effort to place online, for free access, all the teaching materials from every one of its courses. I think it's one of the most insanely great ideas to hit the Web this decade. The MIT OCW site links to other OCW projects starting up worldwide.
The two-year-old project (shows how behind the times I am) has over 11,000 texts available at this point, including a still-small offshoot called Wikijunior, which specifically aims at early learners with short (48 page) chidren's texts.
Microsoft Desperately Searching for Stake and Holy Water
According to Dennis Crouch's Patent Law Blog, the USPTO has once again decided that the Eolas patent is valid. If you've blissfully managed to put this thing out of your brain, let me refresh: this patent won Eolas a half-billion dollars at trial against Microsoft, prompting cries of doom from many corners because it covers a technique that could be considered core to the current Web expereince. The case is presently before SCOTUS but the Patent Office's ruling is definitely a blow to Microsoft.
CPT's Jamie Love has rough notes from the debate at WIPO over whether to hold a fast-track diplomatic conference to create new "middleman rights" on top of copyright for companies that merely pass content from the creator to your desktop. Predictably, the US delegation is champing at the bit: "US pleased to support prompt [diplomatic conference]. Timely and appropriate. Urgent 2006 DC." But Thiru Balasubramaniam reports that there has been enough push-back that consensus was not reached. I'm not as well-versed in WIPO-speak as I'd like to be, but it seems to me that this means delegates may have more time to evaluate whether and/or when to hold the conference.
Another bright note: "Jamie Boyle's article in yesterday's FT was widely circulated and read, and it had a big impact."
Edward Felten, proposing a "Pizzaright Principle" litmus test for determining whether or not expansionist proposals to create new intellectual property rights make sense:
Lately, lots of bogus arguments for copyright expansion have been floating around. A handy detector for bogus arguments is the Pizzaright Principle.
Suppose that Bob argues that the profitability of broadcasting may be about to decrease, so broadcasters should be given new intellectual property rights. He could equally well argue that if the pizza business has become less profitable, a pizzaright should be created.
(The flaw in Bob's argument was the failure to show that the new right furthers the interests of society as a whole, as opposed to the narrow interests of the broadcasters or pizzamakers.)
We are deeply troubled in the nature of the proposed property right. It is not based upon creativity. It is not based upon invention. It is a claim that the investment in transmitting information should create a 50 year exclusive right to content, far longer than the term of protection for databases in Europe, and more than 10 times the term of protection for test data for pharmaceutical clinical trials in the United States. This right is on top of the copyright in copyrighted work, and applies even to works in the public domain under copyright laws.
We don't give book publishers a layer of rights on top of copyright. We don't give the post office a layer of rights for delivering mail. We don't give taxi cab drivers a right to control the use of documents that are transported by passengers in their cars. Why do we decide to give broadcasters a right of 50 years?
James Love and Manon Ress of the Consumer Project on Technology are circulating an open letter asking the leadership of the House and Senate to block US support for a fast-track diplomatic conference on this controversial treaty until there has been analysis of its potential impact; you can learn more and sign the letter here.
The Broadcasting and Webcasting Treaty, currently being debated in Geneva, is an IP hat trick.
Much of what is broadcast over the airwaves is copyrighted – the broadcaster licenses the film or song from a copyright holder and then plays it to you at home. What you probably do not know is that nearly 50 years ago broadcasters in some countries got an additional right, layered on top of the copyright. Even if the material being broadcast was in the public domain, or the copyright holder had no objection to redistribution, the broadcaster was given a legal right to prevent it – a 20-year period of exclusivity. The ostensible reason was to encourage broadcasters to invest in new networks. The US did not sign this treaty. Has the US broadcast industry stagnated, crippled by the possibility that their signals will be pirated? Hardly. Copyright works well and no additional right has proved necessary. Has WIPO commissioned empirical studies to see if the right was necessary, comparing those nations that adopted it with those that did not? Of course not. This is intellectual property policy: we do not need facts. We can create monopolies on faith.
But now a new diplomatic conference is being convened to reopen the issue. Doubtless the goal is to abolish this right? There was never any empirical evidence behind it. Broadcasters in countries that did not adopt it have flourished, albeit casting envious eyes to the legal monopolies possessed by their counterparts in more credulous nations whose politicians are more deeply in the pockets of broadcasting interests. The right imposes considerable costs. It adds yet another layer of clearances that must be gained before material can be digitised or redistributed – compounding the existing problems of “orphan works”, those whose owners cannot be identified. So is the broadcast right on the way out? No.
In the funhouse world that is intellectual property policy, WIPO is considering a proposal to expand the length of the right by 30 years and a US-backed initiative to apply it to webcasts as well. After all, we know that the internet is growing so slowly. Clearly what is needed is an entirely new legal monopoly, on top of copyright, so that there are even more middlemen, even deeper thickets of rights.
In related news, here's the story of a similar scenario playing out on Capitol Hill. Specifically, the MPAA and RIAA are moving to sneak Broadcast Flag-like provisions in a reconciliations bill -- the better to avoid any public debate or protest:
One especially sneaky way to get an amendment passed is to smuggle it into a reconciliations bill. Reconciliation is the mirror image of appropriations. Appropriations is about taxes; reconciliation is all about making cuts. Because Congress dearly loves to appear thrifty, reconciliations has special fast-track status. It can't be filibustered, it's almost impossible to amend once agreed upon, and it only needs a plain majority to pass.
Edgar Bronfman Jr., the CEO of Warner Music Group, recently took a moment to attack Apple's Steve Jobs for the 99-cent pricing of music downloads in the iTunes Music Store. According to Bronfman, "Not all songs are created equal -- not all time periods are created equal. We want, and will insist upon having, variable pricing."
What? Bronfman singing the praises of "variable pricing"?! Lest anyone forget, he was at the helm of Universal Music Group back when it (along with all the other major labels) was engaged in a scheme of price fixing aimed at keeping CD prices high.
Back in the good old days (about 5 years ago), the "Big Five" could force music stores to adopt "minimum advertised pricing" (MAP), meaning that no matter how rotten (sorry, "unequal") a CD, retailers had to advertise it at a pre-established minimum, else the labels withdraw millions of promotional dollars. The Federal Trade Commission no likey. It determined that MAP was a form of price-fixing and that music fans may have overspent by as much as $480 million while it was in force.
Unrepentant, a few of the labels issued statements stubbornly defending the practice -- e.g., "While we continue to believe that MAP was a legitimate and appropriate practice, BMG looks forward to moving ahead and continuing to do what we do best: deliver great music to the consumer," and "We believe MAP serves a valid business purpose for our customers and the consumer and is an appropriate and lawful practice."
So in calling for variable pricing, it would appear that these self-proclaimed experts in delivering great music have changed their tune. Or not. As Fred points out, this push seems to be about ignoring market forces, not embracing them:
[Bronfman] apparently doesn't think that "variable pricing" might include lowering the price of some tracks below 99 cents. Said Bronfman, "Some songs should be $0.99 and some songs should be more." So what he meant to say is "we should be raising our wholesale prices and preventing people from discounting."
What's up here? The letter from New York's MTA is light on the detail, not much more than "if right, then infringement." It's not clear how helping people find their way through the labyrinthine NY subway system hurts the transit authority, but that didn't seem to enter the equation. As a copyright matter, this transformative posting (re-sized and formatted for mobile devices) has a good claim to fair use.
The letter from San Francisco's BART spells things out further, invoking both copyright and trademark. BART doesn't want people to think out-of-date maps reflect the current subway system -- a valid concern of the sort that trademark law is well-suited to address. Of course they can address this concern short of prohibiting distribution of any maps, by asking the site to indicate clearly the date of its information and its independence from BART, or even by helping to keep it up-to-date.
As reported, the maps' poster has been working to create his own maps to replace the earlier images. Since copyright protects only "original expression," not facts or ideas, it offers thin protection to maps. The transit agencies can't copyright the locations of stations, their names, or the colors and symbols by which the public identifies them. A new map may look very much like the old ones without copying any copyrightable expression. So long as it's clear these are unofficial maps, the trademark "confusion" dissipates as well. I'll look forward to seeing the new maps posted soon -- and then porting them to the Treo!
William Patry, the highly respected copyright lawyer, law professor, and former copyright counsel to the US House of Representatives, Committee on the Judiciary, has decided he was too hasty when he criticized the Google Print library project:
My initial, negative reactions to Google's project reflected, as it should not have, partisan jockeying. The legal issue remains the same, however: whether copying of an entire work without authorization is an infringement where the ultimate user is able to see only a few sentences of the original. Since fair use is an unconsented to use, the fact that publishers object doesn't matter, regardless of the chutzpadik way Google may have handled the issue (The Second Circuit is divided on whether bad faith is a fair use factor).
So in the Google project, why should we care if there are server copies? The purposes for the copies in connection with the Print Library project is to give people access to knowledge about the existence of the book as well as a tiny amount of text. That is of great help to researchers and hopefully to authors and publishers of the books too. It in no way harms copyright owners unless the project becomes something else, namely a full-text service which then is a market substitute.
It is 1976 all over again. Then, like now, content owners turned to the courts to stop an extraordinary new technology. Then, like now, copyright is the weapon of choice. But then, like now, the content owners of course dont really want the court to stop the new technology. Then, like now, they simply want to be paid for the innovations of someone else. Then, like now, the content owners ought to lose.
Googles use is fair use. It would be in any case, but the total disaster of a property system that the Copyright Office has produced reinforces the conclusion that Googles use is fair use. And for all those people who devoted years of their life to defend the right to p2p file-sharing heres your chance to show what this battle is really about:
Google wants to do nothing more to 20,000,000 books than it does to the Internet: it wants to index them, and it offers anyone in the index the right to opt out. If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet? The authors claims, if true, mean Google itself is illegal. Common sense, or better, commons sense, revolts at the idea. And so too should you.
...[This] whole thing looks like a dark, gathering storm. It's not just Google betting the company. It's Google gambling with all of our rights under copyright -- both as copyright producers and users. Many good things could be washed away. This case strikes at the heart of both Google and copyright. It's not some clever fair use algorithm. It's not just one in a string of cases that will slightly expand or slightly constrict users' rights (and, please remember, users are not a party to this suit). It's about the very defining essense of copyright and about corporate copying on a massive and unprecedented scale.
Michael Madison's latest post in some sense serves to bridge the two:
We agree on the stakes; we disagree on the tactics. How do we protect users rights and the public domain?
The problem is that the public domain cannot sue to protect itself. (Note the echo of environmental law.) Individual users can sue to protect their interests in the public domain, but weve seen first-hand the limits of that strategy. Regardless of your view of the merits of Eldred v. Ashcroft, it was pretty difficult for Eldreds legal team to get more than 2 members of the Supreme Court to see why any of this mattered.
The next best strategy is to enable proxies to stand for the public domain. Proxies are imperfect in lots of ways, but one thing they have especially if they happen to be large corporate entities is a business model that depends on access to information.
...[If] we recognize Google as a proxy, then I continue to believe that sometimes you fight the fights that need fighting, not just the fights you can win.
I havent been an academic so long that Ive lost the litigators sense that sometimes, a case deserves to be litigated and maybe even tried. I think that this is one.
Drew Clarkcalls attention to a little-reported aspect of the Verizon/Disney deal: "[A] careful reading of the press release put out by Disney and Verizon shows how Verizon is agreeing to do copyright tracking that it refused to countenance on behalf of the RIAA."
Update: Says Fred von Lohmann (via email): "The press release says that Verizon retains the option to either terminate OR wait for a subpoena. So I think, fairly read, Verizon has NOT retreated from its earlier practices. But the mistake is understandable; I thought the same thing until someone pointed out the 'or.'"
Reporters Without Borders has just unveiled a remarkable how-to guide for bloggers and "cyberdissidents" who want to make their voices heard in/from countries that are hostile to free speech. It's more specialized than EFF's exhaustive Legal Guide for Bloggers, focusing on 1.) how to create an effective voice online and 2.) overcoming the specific technical and practical challenges to free speech and anonymity in the face of government monitoring and censorship.
Bloggers are often the only real journalists in countries where the mainstream media is censored or under pressure. Only they provide independent news, at the risk of displeasing the government and sometimes courting arrest. Plenty of bloggers have been hounded or thrown in prison. One of the contributors to this handbook, Arash Sigarchi, was sentenced to 14 years in jail for posting several messages online that criticised the Iranian regime. His story illustrates how some bloggers see what they do as a duty and a necessity, not just a hobby. They feel they are the eyes and ears of thousands of other Internet users.
The section called "Personal Accounts" is especially inspiring, providing the real-life stories of bloggers from all around the world; click on the links below for a few examples:
What's interesting to me at the moment is the way the messages are being carried. Google has chosen to officially blog its response in its corporate blog. In its response it illustrates what such a search hit would look like and asserts that this is fair use. This chosen method of response is all the more interesting because the reportage on CNET of the original story contains no response from Google. This is because Google tried to put CNET into the doghouse with a year-long blackout on commentary. However, in order to explain why there's no comment from Google, CNET has chosen to link back to the original story that provoked Google's ire in the first place. So rather than letting the brouhaha die down, Google's and CNET's behavior continue to drive readers towards the story Google doesn't like. This is highly amusing.
From press releases to VNRs, companies have long struggled to get control of how their messages get out. A bad publicity moment can haunt a company for a decade or more (see P&G's ongoing fight against rumors of satanism). Google is rolling out a series of initiatives that could be revolutionary if widely accepted, or could be colossal failures - blog search, Google VoIP, etc. Whether or not it still cares about its much-publicized "don't be evil" motto, it certainly cares about how it gets its message across to the tens of millions of potential users of its services. A corporate blog is just one weapon in the arsenal and I'm quite sure we'll see Google making heavy use of it. Will other companies follow suit? Probably, but at a much slower pace. But as CNET is showing, blogs, web reporting, and the ability to link are not simple weapons. Google may find itself more hurt than helped by its current strategy.
I believe Google has a strong fair use defense here...Turning now to the traditional four fair use factors:
Nature of the Use: Favors Google. Although Google's use is commercial, it is highly transformative. Google is effectively scanning the books and turning them into the world's most advanced card catalog. That makes Google a whole lot more like Arriba Soft than MP3.com.
Nature of the Works: Favors Neither Side. The books will be a mix of creative and factual, comprised of published works. The works cited in the complaint include "The Fiery Trial: A Life of Lincoln" (largely factual history) and "Just Think" (described elsewhere as: "pictures, poems, words, and sayings for the reader to ponder").
Amount and Substantiality of the Portion Used: Favors Google. Google appears to be copying only as much as necessary (if you are enabling full-text searching, you need the full text), and only tiny snippets are made publicly accessible. Once again, Google looks a lot more like Arriba Soft than MP3.com.
Effect of the Use on the Market: Favors Google. It is easy to see how Google Print can stimulate demand for books that otherwise would lay undiscovered in library stacks. On the other hand, it is hard to imagine how it could hurt the market for the books -- getting a couple sentences surrounding a search term is unlikely to serve as a replacement for the book. Copyright owners may argue that they would prefer Google and other search engines pay them for the privilege of creating a search mechanism for their books. In other words, you've hurt my "licensing market" because I could have charged you. Let's hope the court recognizes that for the circular reasoning it is.
Update: Via Marty Schwimmer, William Patry's take: "And on the Google issue, I share publishers' concerns. While I think the project is fantastic and would love for it to come to pass (it would greatly faciliate and democratize scholarship and thereby significantly increase learning), as to works under copyright, it can only be done with permission. Absent permission, I see no way for it to be considered fair use or covered by Section 108."
Should Google fight the case? Absolutely. From a litigators and trial lawyers point of view, this is a case worth fighting. Theres lots of money at stake, and both sides have lots of money to spend on fees. Its very high profile stuff! And it doesnt (yet) have a clear storyline. Right now, its good guys (do no evil) v. good guys (hard-working, creative authors). Moreover, it isnt very often when a fair use argument gets raised by a big-time, well-financed corporate entity. Usually fair use is the province of the little guy, who has to rely on the legal kindness of strangers. Sometimes the little guy wins; usually the little guy loses. Thats not healthy for fair use. One of the partners at my old firm used to say that sometimes, you have to fight the close ones. Otherwise, you never win the close ones.
...and Madisonian Theory:
Since Google Print is in many copyright-related ways indistinguishable from Googles core search functionality, Eric Goldman points out in a Comment at Conglomerate and in a note on his own blog that this may be a bet-the-company case -- and that Google should stand down. I agree with Erics premise, but disagree with the conclusion. Not only do I believe that Google should bring it, so to speak (maybe thats the latent litigator in me), but I have this suspicion that the do no evil gang have been itching for a (copy)fight. If Google caves, Ill be disappointed.
[The] United States Government is aggressively pushing the treaty even though its implications have hardly been studied, the public's and creators' rights would be severely compromised, and no similar webcasting law exists anywhere. The idea is apparently to craft a self-serving new legal regime behind closed doors, and exclude the public just long enough for the treaty proposal to become an unstoppable "international consensus."
Meanwhile, over on the Random Bits list, Jamie Love of the Consumer Project on Technology has a lengthy, must-read rebuttal to the argument by treaty supporters that "webcasters" need this fresh layer of exclusive rights on top of copyright for 50 years in order to prevent signal theft by pirates. Not so, says Love.
[Jon Potter of DiMA] says "there's nothing radical about a treaty to stop pirates from stealing and repackaging webcast signals without paying companies that spent money to create, license and transmit the programming."
What he does not note is that all of these things can be addressed under existing copyright laws, if the material being webcast is copyrighted material, and if the webcaster has obtained sufficient rights from the copyright owner. ...Indeed, all the consumer/civil society NGOs and most copyright owners who attend the WIPO negotiations asked for a treaty dealing with signal protection only. But the broadcasters don't need or want a treaty on signal piracy, since there are plenty of existing ways to address it [...].
There are eight separate rights. You cannot read the rights and still maintain this is about piracy of a signal. It is about the rights to control the commercial distribution of someone else's content. (If the broadcasters did have the copyright, they would not need these rights).
The US and the webcasters are seeking parity between the broadcasters and the webcasters. Everything that says "Broadcasting organizations" would be extended to webcasters, under the US proposals. How much of the web that would be covered is unclear, but the current definition includes all combinations or representations of images and sounds, which covers just about everything. [Emphasis added.]
As I noted below, one of the most troubling aspects of this new set of rights is that they would create a mechanism by which anyone can gain control over the distribution and use of freely licensed material and/or works that have fallen into the public domain. You feed any combination of sound and images through a web server, and suddenly, people must deal with you. If the material is already under copyright, they must negotiate with the copyright holder -- and, oh yes, also with you. For 50 years. Meanwhile, there has been no real analysis or public debate about the impact this would have on...well, just about anyone it will affect.
The San Diego band Switchfoot, explaining why it has decided to help fans circumvent industry-mandated DRM: "It is heartbreaking to see our blood, sweat and tears over the past two years blurred by the confusion and frustration surrounding this new technology...We refuse to allow corporate policy to taint the family we've developed together." Update: Out-law.com notes that Switchfoot is a Christian band, and "is not encouraging people to steal" but aims to "improve the accessibility of CDs that have been purchased legitimately by fans who then encounter limitations on how they listen to the music."
Edward Felten, responding to the news that Hollywood is funding its own lab to cook up a new form of DRM that will finally, finally keep its content safe from infringement on the Internet:
When MovieLabs fails, expect the spinners to emerge again, telling us that MovieLabs has a great technology that it cant tell us about, or that theres a great technology that isnt quite finished, or that the goal all along was not to stop P2P copying but only to reduce some narrow, insignificant form of copying. Expect, most of all, that MovieLabs will go to almost any length to avoid independent evaluation of its technologies.
This is a chance for Hollywood to learn what the rest of us already know -- that cheap and easy copying is an unavoidable side-effect of the digital revolution.
Opines Mike over @ Techdirt: "The industry would be much better off taking that $30 million and spending it on creative new ways to embrace what people are doing with their content."
A Mad Tea Party is a blog that featured the anonymous musings of an especially sharp law student with a keen interest in restoring and preserving balance in copyright law. The bad news: the author graduated from law school, and "A Mad Tea Party," which has often gone quiet, is now officially retired. The excellent news: the anonymous blogger has finally stepped forward to reveal her identity. It turns out she is Brandy Karl, the author of outstandingFindLaw columns on copyright law and policy that we've featured here @ Copyfight. Even more excellent: she has just launched a brand new weblog where she'll offer her musings as she builds her private intellectual property practice in Boston.
Here's a taste of said musings: a post reacting to the news that Universal Music Group is working to squeeze a $7,500 yearly fee from a small local music venue for videos that serve to promote its artists and music:
I'll refrain from any legal comment on the matter, but it seriously makes you wonder how many small and medium sized outlets will continue playing UMG videos. I'm sure that there are other labels absolutely willing to promote their artists through (free) video. A reasonable fee - perhaps a nominal one that helps shift some of the shipping or replication costs to the entities that display the videos - might be a different matter. But putting the screws onto small outfits really doesn't make any sense, and in the end, it's a disservice to the artists that UMG represents.
Brandy tells me she won't always be able to write on the latest copyright news, but you can be sure that whatever she tackles will be worth the wrestle. Check out bk! and pass the word along.
Thursday, September 22, 2005
5:00 - 7:00 p.m.
32-155 (Stata Center) (see http://whereis.mit.edu for how to find places at MIT)
Nancy Kranish, former President, American Library Assn
Ann Wolpert, Director, MIT Libraries
Respondent: Steven Pinker, Harvard University
Arguments and legal confrontations over the control of music, writing and visual materials have become a permanent feature of contemporary life and will almost certainly enlarge and intensify in future years. As corporate producers and distributors - including some universities and private libraries - move aggressively to claim ownership of digital content of all kinds and as some industries lobby for building surveillance principles into the operating systems of computers, others defend an alternative vision. This alternative embraces ideals of sharing and civic community and warns that recent extensions of copyright threaten creativity and the free exchange of ideas. Is there a future for this idea of a digital commons? Is the American tradition of free public libraries a valuable precedent for the digital age? Is the commercialization of cyberspace already a problem for those seeking reliable information? Are there features or tendencies inherent in digital technology that will always challenge and even undermine efforts to control information or charge a fee for accessing it?
Copyright may be the 800-pound gorilla of the Internet, but there's a brand-new pseudo copyright in the works capable of swallowing massive chunks of the public domain, bones and all.
As I understand it, the new right -- or rather, set of rights -- would give companies fresh exclusive rights on top of any existing rights for anything they "webcast" (that is, transmit by web servers over the Internet and other networks). In other words, a company could take a movie that's fallen into the public domain, webcast it, and keep the general public, to whom it belongs, from recording it. It could webcast Creative Commons-licensed songs that people have specifically earmarked for easy digital distribution and remixing, then demand that no one touch the webcast. And there is no additional creative effort necessary to accrue these rights. All you have to do is feed any combination of sound or images through a web server, and you're golden.
If you've been following the goings-on at the World Intellectual Property Organization (WIPO), you won't be surprised to learn that this new right is being negotiated behind closed doors at the urging of Yahoo and a handful of other companies, without any public debate and over the repeated protests of public interest groups and webcasters who have specifically rejected this new "protection." As CPTech points out in a new letter to members of Congress, this is a prime example of US trade policy completely captured by a small group of corporate lobbyists. After all, how else could a set of rights this powerful slip under the radar -- especially when there has been, as CPTech notes,
1. No analysis of how US law would have to change in the treaty passed.
2. No analysis of the unintended consequences of creating a new right of transmission for the Internet.
3. No analysis of the impact of the new right on copyright owners.
4. No analysis or concern about how the new [intellectual property] right would affect the orphan works problem.
5. No analysis of the impact of the webcasting treaty on podcasting.
6. No analysis of whether the treaty language would unwittingly create a property right to persons operating peer-to-peer networks or search engines.
Negotiators are moving full-steam ahead, and there may be movement on this as soon as next week. CPTech has already petitioned the Library of Congress and US Patent and Trademark Office to slow down and invite the public into the process, but Congress may be more effective at calling on US negotiators for a time-out. I hope so.
Cory picked up on PVRblog's coverage of what was eventually determined to be a bug: Users found their TiVos unexpectedly expiring recorded shows.
It might well have been a bug in this instance, but bugs like that don't just come from nowhere, with fully formed error messages alerting viewers that "Due to policy set by the copyright holder, 'Keep until I delete' is not permitted." Maybe it wasn't meant to show up here and now, on broadcast TV, but someplace in TiVo's corporate innards, someone decided that unrequested expiration was a feature.
Nothing in copyright law mandates this "feature." To the contrary, once you have a lawful copy of a copyrighted work, the first sale doctrine says you have the choice whether to save, lend, or discard it, while Betamax says timeshifting creates a lawful copy. If not copyright law, then copyright-holder muscle probably sits behind TiVo's design. Copyright holders work with Macrovision to implement extra-copyright controls, then jointly lean on TiVo to respond to them. Together, they restrict user rights beyond copyright.
The bug also illustrates the fallibility of proprietary technologies (particularly those with automatic update). "Update" doesn't always mean "improve" -- an update can take away functions you've come to enjoy, just because someone else objects. This misfeature of any DRM that implements "revocability" gives "planned obsolescence" a whole new meaning.
Like Cory, I've gone the MythTV route instead. With hundreds of people hacking on its open-source code, MythTV updates really are improvements. Its features are truly features, like commercial skip, time-stretch, transcoding and transfer to other media, plus an open-format music server on the side, giving full access to all the rights copyright reserves to the public. Sorry TiVo, you've been out-evolved.
Robyn alerts me to the USPTO's kids' pages, where they've posted a colorful -- but sharply slanted -- "Put a stop to piracy" campaign. We thought it needed a bit of annotation to help kids understand (red from the USPTO page, black mine):
CAN YOU TELL WHAT'S WRONG?
You hook up a VCR to your DVD player and make copies of your movie collections as gifts for your pals.
Sorry. You try to hook the two together but Macrovision prevents you from getting a clear picture, even when the movies you want to copy are no longer in print or you're trying to extract scenes to add to commentaries. You probably won't be able to find a macrovision-less VCR, because Macrovision has been suing their makers for patent infringement.
You capture pictures from TV shows and post them on your website along with soundbytes that make you laugh.
Great, you've got a pre-broadcast-flag TV setup that lets you make fair use of media. Hold onto it, because if Hollywood and the FCC have their way, you'll be technologically prevented from grabbing these captures in the future. A "soundbyte" sounds ok, just remember that a sound-gigabyte probably exceeds fair use.
You buy a fake pair of designer shoes from a street vendor - they look like the real thing and cost only a few dollars.
Cool, so long as they weren't made by sweatshop labor and you weren't deceived into thinking you'd bought real designer merchandise. You've just saved yourself a bundle and helped the free market. Fashion designs aren't copyrightable, and trademark protects only against consumer confusion.
I can't be here this week, but I'll be back & blogging as usual starting Monday morning (Sept. 19th). In the meantime, check out the blogs to your left listed under "copyfighters" -- especially the following, which are consistently at the top of my list for copyfight-related news & analysis:
Mike Godwin has the scoop on the recording industry's new bid to assert control over radio broadcasts, in an effort to stop you from doing things like "[automatically copying] particular recordings of the user's choice, thereby transforming a passive listening experience into a personal music library often without even listening to the original broadcast."
In other words, it's worried that you'll have a TiVo for radio. And it believes that by citing fears of digital "theft" of free radio broadcasts -- which have never copy-protected -- it can persuade Congress to stop TiVo for radio from happening. Or, to be more precise, to stop it from happening without being able to control it. It's already decided, for example, that people shouldn't be able to automatically search for and record songs by a particular artist. But after the Broadcast Flag smackdown, it needs Congress to give the FCC explicit authority to make it so.
[The] music industry is basically saying that, where recording from next-generation radio is concerned, government must step in and freeze innovation to ensure that you can never do anything that you couldn't do with an analog cassette deck in 1984. This, despite the fact that Congress specifically approved of digital recording off the radio in the Audio Home Recording Act in 1992. So this is about stopping music fans from doing things that are perfectly legal under copyright law.
The BBC has unleashed the first installment of its (mostly) remixable TV archive. Containing about 100 clips, each a few minutes long, it mostly seems to be innocuous material such as animals and landscapes. Of course, many interesting mixes contain image of people but that seems likely to run afoul of the archive's Creative Archive Licence, which claims that the material must not be use to defame anyone. Interestingly, the CAL appears to be viral, in that anything created with its material must itself be licensed under identical terms.
The material is being made available to BBC Radio 1 listeners with an encouragement to create a 3-minute VJ mix. Clearly this pilot is targeting the most obvious audience. It will be interesting to see where this grows as the library of licensed clips grows and people expand the ways in which they're used. For example, could I use this material as background for a show I was DJing, if I was going to get paid for the DJ gig anyway and didn't get anything more for having the video acompaniment?
The UK copyfighters who are creating an EFF-style digital rights group now have a blog, helmed by none other than Corante's own Suw. Check out the BBC article on the group, with photos of a filmmaker, a podcaster, a blogger, and an activist (yep -- it's Cory), plus the question, "Are you a digital citizen?"
P2P.net has a wonderful interview with my EFF coworker Fred von Lohmann (who's not only incredibly sharp but also generous-spirited, funny, and gracious -- a pleasure to work with, a privilege to know). The interview is far better than the usual soundbites for understanding why Fred became Fred -- that is, a relentless, passionate defender of the public's rights in the networked world.
Apropos of our coverage of the Patricia Santangelo case, here's Fred on the RIAA's litigation campaign against allegedly infringing filesharers -- and their parents :
p2pnet: Is it acceptable to make parents responsible in a financial or other sense for something their children may, or may not, have done?
von Lohmann: The increasing number of lawsuits against the parents and grandparents of alleged file-sharers is a particularly unfortunate part of the recording industry's litigation campaign against music fans. There is no precedent in copyright law for holding parent responsible for the infringing activities of their minor children. If the question ever went to court, I believe the RIAA would lose. Unfortunately, the RIAA has made it clear that, if a parent fights the lawsuit, they will simply sue the child directly.
Most parents are unwilling to expose their kids to that kind of ordeal, so they settle.
...Will the phone have a hard drive that can hold thousands of songs? Will you be able to download songs straight from the Internet? Will it have a FireWire or U.S.B. 2.0 connector for superfast music transfer? Will you be able to use your songs as ring tones, so that the phone bursts out in "You Make Me Feel Like a Natural Woman" when your husband calls? ...the answer to all of [those questions] is no.
No, the phone doesn't contain a hard drive. It comes with a tiny, 512-megabyte TransFlash memory card. Incredibly, though, you can only store 100 songs on the phone, tops, no matter how much room is left on the card.
No, you can't use songs as ring tones, at least not the songs you've bought from Apple's music store. (You can use ordinary MP3 files as ring tones, but loading them onto the phone isn't trivial.) This, too, is almost certainly a limitation driven by corporate interests. Cellphone carriers charge $1.50 to $3 apiece for ring tones; Cingular certainly wouldn't want to hand that lucrative business over to Apple's music store.
If you'd rather listen to music on your phone than grouse about these engineered limitations, there's always the open-source TCPMP for Treo or WinCE, which not only plays MP3 and OGG files, but videos too.
The surreply request is unusual because the normal rule is that the party bearing the affirmative burden of persuasion (in this instance Ms. Santangelo) gets to have the last word. The party making the motion bears the burden of persuading the court, and serves its motion papers. The opposing party serves its opposition papers. And then the movant gets the last word -- its reply papers.
I would say that asking for a second oral argument is unusual, because (a) in almost 31 years of working in litigation I've never heard of anyone doing it, and (b) the very asking for it is an admission that the first oral argument was lost.
One can only guess as to why plaintiff's lawyers are doing it. Apparently something happened after August 15th to convince the plaintiff's lawyers that (a) they are losing, and/or (b) the case is more important than they initially thought it was. Or perhaps they are doing it because they are hired guns and their client just ordered them to do it.
Excuse me, but isn't public photography of public officials carrying out official duties in plain view still legal? Ah, but perhaps not in the post-9/11 US. I think FEMA should take a page from Google's book and just refuse to talk to Geraldo for a year.
Note, the original source for this, Josh Marshall's Talking Points Memo, is pretty overtly partisan and opinionated. Whether that makes him more or less reliable is left as an exercise for the reader.
Jack Shafer, Slate's editor at large, has a wonderful piece (The Rebellion of the Talking Heads) listing a bunch of times in the past few days when mainstream media (MSM) have had enough and started calling a spade a spade when talking to government officials. I would dearly love to have a functional Fourth Estate in this country again, because I believe that MSM still has a huge influence on the course of thought and political policy in the US. I'm just sickened that it took something of this magnitude to jolt them finally out of their passivity.
Matthew Hirsch of the San Francisco Bay Guardian has a terrific piece on the recent orphan worksroundtable hearings in Berkeley. It features familiar copyfighters Ren Bucholz and Joe Hall, and a not-so-familiar copyfighter named Joe Lisuzzo -- a representative from Wal-Mart Corporation.
Specifically, Lisuzzo and Wal-Mart are pushing the government to change the way it deals with "orphan works," which are described by the US Copyright Office as "copyrighted works whose owners are difficult or even impossible to locate." Orphan works can be literally anything from an old film clip to a line of computer code to a haiku scribbled on the back of a napkin. As the law stands, anyone who wants to reproduce an orphan work or tweak it into some novel creation (à la sound collagists Negativland) has to hunt down the copyright holder for permission or risk getting sued.
Ren agitates for the Public Domain Enhancement Act (PDEA). Joe Hall wants to post a copy of an old, rare book on voting technology. Why did Wal-Mart get involved?
Well, not surprisingly, it's all about the Benjamins. Lisuzzo says the company is itching to make copies of old photos for customers but can't do so unless the customers can prove they own the rights to those pics. "We're in a situation as a retailer where we'd like to do nothing more than take their money, but we can't because of our policy and the law," Lisuzzo testified at the Berkeley hearing.
I'm no fan of Wal-Mart. But it's nice to see a company acknowledge that there are economic as well as cultural and social benefits to appropriately limiting the copyright monopoly grant.
First, CRIA seeks to link the Australian decision with Canadian copyright reform. In reality, the two have as much in common as Australian rules football does to ice hockey.
Second, in claim designed to appeal to Canadian Heritage, it describes the implementation of WIPO in Canada as "WIPO-Lite", questioning whether the bill will be effective and allow Canada to "implement its international treaty obligations." We should be clear: Bill C-60's provisions (particularly the anti-circumvention provisions) are absolutely WIPO compliant.
Third, there is the absurd claim (designed to appeal to Industry Canada) that Canadian copyright laws have hamstrung online music sales. CRIA claims that "digital sales in this country run at one-half of one percent of US levels, but should be in the 12 to 15 percent range given relative broadband penetration in the two countries."
We should again be absolutely clear: Canadian online music sales have nothing to do with Canadian copyright legislation or copyright reform.
In light of a possible likely Chief Justice John G. Roberts Jr., Jeffrey Rosen's excellent NYT Magazine piece on the kind of constitutional battles we'll see in the future is an even more valuable read. Of special interest to copyfighters: Section VI -- Property, Free Expression and the Right to Tinker.
An Australian federal court has ruled that the Sharman companies responsible for the filesharing software KaZaA "authorized," and are therefore liable for, copyright infringement by the people who use the software. Further, the court has ordered Sharman to modify the software to help prevent infringement. And that means copyright holders will be involved on an ongoing basis, providing lists of material to be filtered from searches.
Given the experience over in the US in the Napster litigation, where similar attempts by a trial judge led to much ongoing disputation about the form of orders that only went away when the litigation collapsed under its own weight, I'm surprised that any judge would want to get into this.
In my view, it was always going to be the case that Kazaa itself went down, on the kinds of facts that we see in this case. What I was hoping was that the judge would find a way to frame a rule so that it caught 'bad actors' without generally chilling innovation.
The court has not done that. The court has caught the bad actor but provided no guidelines for the good actor.
In splitting the baby, and trying to get into technological design, I fear that the judge has let himself in for a helluva fight. And it's not like he didn't know that: he saw the litigation as it went on. I fear the dramas will continue as parties fight over orders. We are back in Napster territory again.
"It seems that Kazaa users are predominately young people, the effect of [Kazaa's] web page [with the slogan, 'Join the Revolution'] would be to encourage visitors to think it 'cool' to defy the record companies by ignoring constraints."
In other words, it's not cool to make copyright infringement sound cool.
KaZaA has announced that it will appeal the ruling.
There is Kanye West, whose remarks criticizing President Bush's slow response to Hurricane Katrina were cut from the west coast broadcast of a televised hurricane relief telethon, but can't be cut from the Net.
What's that, you ask? Evidently, it's when you ignore the terms written on the side of Lexmark printer cartridge box, refilling the cartridge with ink even when the company has designated it "single use only." According to the Ninth Circuit ruling [PDF] this week in ACRA v. Lexmark, opening the package means you agree to Lexmark's wishes. And if you break that agreement, you could face claims under contract and patent law.
As Fred von Lohmann explains it, it's sort of like when you buy those fancy Gillette Sensor razors, then purchase cheap replacement razor heads -- except that a court has ruled that if the package says "single use," then by opening it you've agreed you can't have any cheap replacements (but you can buy another Gillette "single use" razor). And that means the company that makes the replacement heads is out of luck, too.
[The strategy here is] a variant on the "shrinkwrap license" that used to appear plastered on software. Lexmark is bringing this practice to the world of patented goods. If you step outside the bounds of the "contract" (by giving your spent cartridge to a remanufacturer), you're suddenly a patent infringer. More importantly, Lexmark can sue cartridge remanufacturers for "inducing" patent infringement by making and selling refills.
Yes, Lexmark is the company that already tried and failed to control the printer cartridge after-market using the Digital Millennium Copyright Act (DMCA). Contract and patent law are clearly proving more amenable. The question is, how will the ruling impact the way companies do business in the future? Asks Fred:
Will patent owners exploit this decision as an opportunity to impose over-reaching restrictions on formerly permitted post-sale uses, repairs, modifications, and resale? Will consumers soon confront "single use only, not for resale" notices on more and more products? Will innovators stumble over labels announcing "modifications prohibited"?
Obviously, we can't know yet. But the danger is there.
Via trackbacks to my earlier post on the decision in the case formerly known as Blizzard v. BnetD, here are three more posts offering reactions to the Lexmark ruling:
Michael Madison: EULA Developments: "In the contracts arena, consumer advocates won the UCITA battle but are losing the ProCD war. (And they're losing it on the authority of the patent law experts at the Federal Circuit!) What remains of a meaningful 'assent' requirement is slowly, but surely, disappearing altogether."
Mark McKenna: Blizzard and Arizona Cartridge: "I'm not sure I agree that, as a general rule, it would be okay to contract away all the protection of copyright law as long as consumers clearly understood that."
Lauren Gelman: The Problem of Online Contracts: "But this wouldn't really be an issue except for the fact that companies are purposely making contracts difficult to find and read to bind users to terms they ordinarily would disagree with...What is the appropriate scope of online contracts? Should the fact that we know that users don't read them (or can't understand them) inform the scope of what we allow the contracts to bind?"
1. For me, the interesting part of this opinion is that restrictions on alienation (resale/repair) of consumer goods are generally not enforceable unless the good in question is patented.
2. In the wake of this and other cases, pundits are predicting that we will be seeing more "shrink-wrap" licenses restricting repair and modification attached to products that might need repair or modification.
3. If you plan to take such an action, be sure that your product is patented. (Query will a design patent be sufficient?)
Funds will be transferred en bloc to the Red Cross. As with any new organization there are questions as to its legitimacy. Possibly the best part of this are the (apparently) raw and unfiltered commentary flying off the bottom of the page in which this legitimacy is questioned and defended.
This, in my opinion, is what blogs do best - connect people directly and in a living fashion to issues and information of direct personal concern. Good journalism should do that, too, but the blog technology adds a participatory layer.
If you're a relative newbie to digital music downloading, you may be growing increasingly impatient with shrill diatribes from Internet pundits who rant about how digital rights management (DRM) is bad without explaining why -- or rather, without explaining why in language you can actually understand.
Apple iTunes Music Store Says..."Own it Forever and a Day" and "Just 99 Cents, Plus Generous Personal Use Rights"
The Facts: You Bought It, But They Still Own It
Imagine if Tower Records sold you a CD, but then, a few months later, knocked on your door and replaced the CD with one that you can't play in your car. Would you still feel like you "owned" the CD? Not so much, eh?
But Apple reserves the right to change at any time what you can do with the music you purchase at the iTunes Music Store. For instance, in April 2004, Apple decided to modify the DRM so people could burn the same playlist only 7 times, down from 10. How much further will the service restrict your ability to make legal personal copies of your own music? Only Apple knows.
Another hallmark of ownership is the right to give away or sell your property. That's called "first sale," and it's explicitly protected under copyright law. Yet Apple's DRM frustrates first salejust ask George Hotelling, who had to give away the login and password to his iTunes Music Store account in order to resell a single song.
As the table below shows, there are many other ways that Apple's DRM limits what you can do with a song you "own." Many other a la carte download services choose to impose similar restrictions. How "generous" of them.
The guide also covers RealNetworks, Napster 2.0, and Microsoft's "Plays For Sure" DRM campaign. Check it out and pass the word along.
Just last week the StorageTek decision had copyfighters everywhere rejoicing that companies can't use the Digital Millennium Copyright Act (DMCA) to bar third-party repairs. Sadly, the same can't be said about third-party innovation.
Today the Eighth Circuit Court of Appeals in St. Louis, MO, issued a terrible decision [PDF] in Blizzard v. BnetD, the case in which three open-source software programmers are being sued by a videogame company because they created a program to improve and extend the gaming experience for people who legitimately purchased the games. In short, the court ruled that the DMCA prohibits the reverse engineering needed to create the program and that "click-wrap" and "browse-wrap" licenses are enforceable to prevent reverse engineering.
As EFF's press release explains, the program, called BnetD, allowed people who own Blizzard videogames to set up their own multiplayer games on the Internet and enjoy dozens of additional features instead of being locked into Blizzard's proprietary Battle.net game service. The programmers reverse-engineered Battle.net to make their product work with the service, not to violate copyright. The DMCA, which is supposed to protect copyright without harming innovation, has a clause specifically exempting reverse engineering. But as today's ruling proves, it's far too narrow and weak to protect third-party innovators.
A few weeks ago over at the Picker MobBlog, Julie Cohen observed that while the DMCA may be a failure at controlling the "darknet," industry players find it useful for other purposes -- like "marginaliz[ing] the open source movement (at least in the consumer market) by erecting insuperable obstacles to the development of interoperable entertainment platforms."
People should be able to choose where, when, and how they want to use the products they buy. The DMCA gives Blizzard the ability to force people to use their servers whether they want to or not. But copyright law was meant to spur competition and creativity, not crush it. It's time for reform.