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.
On the surface, what's at stake here is the future of the BitTorrent search engine, which was previewed back in May of this year. The agreement by BitTorrent (the company) is to obey the existing law (DMCA) with regard to takedown notices for content deemed illegal that shows up on their search engine. For the most part, this is a no-op. The company more or less had to do this to stay a legal enterprise, and is putting a good face on the inevitable. Presumably, few people trading, say, first-run movies are going to be stupid enough to put their torrent sites into the index of the search engine anyway. So in the end, unless Hollywood somehow figures out a way to put the protocol genie back into the bottle this is going to have just about zero impact on the trading of content via BitTorrent (the protocol).
Looking a layer deeper, this story is about whether or not the Cartel will allow companies that kowtow sufficiently to go legit, especially after showing they can smash Grokster (the company - no effect on music trading of course). As with any protocol, BitTorrent software can be used for any number of purposes. If the Cartel ever want to have a distribution protocol and network for their content they'll have to buy or build something. if BitTorrent (the company) wants to be part of that buy/build answer - and I bet it does - then this kind of agreement is absolutely necessary table stakes.
Jennifer Urban of USC's Intellectual Property Legal Clinic and Laura Quilter of UC Berkeley's Boalt Hall have released a summary report examining over 900 DMCA take-down notices collected from the Chilling Effects project. The report finds that nearly 1/3rd of all notices are improper and potentially illegal. The full report will be out in March 2006.
An anonymous copyfighter pointed me to this story on the BBC detailing the Sony debacle. The story by Canadian law professor Michael Geist paints a picture of a bad situation spiraling totally out of control. I particularly like the unnamed Cartel exec doing his best Michael Brown "how wrong can you get in one sentence or less" impression. Trust me, bozo, consumers may not be able to describe what a 'rootkit' is, but they've heard the word enough to know it's Something Bad and when your product gets linked to public scare words like 'rootkit' and 'spyware' you are in a heap of trouble.
Plus, do you really want to be the one getting called out on the carpet by the US Department of Homeland Security's assistant secretary of policy? His words ought to be tattooed inside the eyelids of every Cartel exec: "it's very important to remember that it's your intellectual property - it's not your computer." Amen.
Geist points out that other publicity debacles (e.g. the poisoned Tylenol scare) led to long-term changes in marketing and business models by the affacted industries and calls on the music industry to take this to heart.
I've been writing for some time about the way in which the Cartel has gone about controlling the language used in the Copyright Wars - and why I use terms like "cartel" in response. This suit has the potential to seroiusly shift the language-scape. If the consumer zeitgeist begins to see "DRM" and "spyware" as synonymous terms, there could be trouble that far exceeds the tar pit Sony seems to be sinking into.
Michael Geist points to a new decision from Canada's Supreme Court ruling that Lego couldn't use a claimed trademark on the interlocking shape of its blocks to insulate them from competition after its patent expired. The ruling echoes a recent U.S. Supreme Court decision, TrafFix Devices Inc. v. Marketing Displays Inc. (2001), that an expired patent couldn't be extended by a claim that the design had acquired trade dress distinctiveness.
Lego (Kirkbi) had patented the Lego system of interlocking blocks and now claimed that even after the patent expired, the "distinctive orthogonal pattern of raised studs distributed on the top of each toy-building brick" had become "LEGO indicia" due protection as an unregistered trademark. Without this protection, Kirkbi protested, Mega Blok would be able to free-ride on the popularity established by Lego's hard work and reputation for quality.
One must start from the problem the appellant faced when its patents expired. ...[T]he very cleverness and flexibility of LEGO technology, of the combination of studs on top of the brick and tubes under it, had almost turned "LEGO" into a household word. Source and product became identified. LEGO bricks, for many, came to designate these small colourful building blocks, with their clever locking system. But when the patents expired, the LEGO technology fell into the public domain. The LEGO name, whether on the product, on its packaging or in its advertising, remained protected, but the monopoly on the wares themselves was over. The monopoly had been the key to the building up and preservation of LEGO’s market share, and so Kirkbi employed a number of different means to protect it, one of which was the assertion of a trade-mark.
The court properly recognized that the patent confers a limited monopoly. In Canada, as in the United States, patent protection is temporary: "Patent protection rests on a concept of a bargain between the inventor and the public. In return for disclosure of the invention to the public, the inventor acquires for a limited time the exclusive right to exploit it." Entry into the public domain after the patent's expiration is a core part of the public-private bargain -- a bargain that can't be abrogated by trademark claims.
True, Kirkbi had built a Lego empire, but as an empire founded on the functional properties of Lego's interlocking bricks, its moats came with an expiration date. "Free riding" after that date benefits society by giving more companies the chance to build interlocking bricks, giving more kids (and non-kids) access to reasonably priced building kits.
The fact is, though, that the monopoly on the bricks is over, and MEGA BLOKS and LEGO bricks may be interchangeable in the bins of the playrooms of the nation – dragons, castles and knights may be designed with them, without any distinction. The marketing operations of Ritvik are legitimate and may not be challenged under s. 7(b) [of the Trade-marks Act].
This reasoning, like the similar U.S. TrafFix decision, reflects a general feature of Anglo-American intellectual property law: Intellectual creations generate value that is shared between the creator and the public. We do not say, "if value then right to exclude," but rather that creators accept the bargain of limited-scope rights when they create.
Let us not forget these principles in the copyfight. Though the term of copyright may never expire in our lifetimes, its scope is cabined by fair use, first sale, and limits on the activities copyright reaches. The copyright bargain authors accept when they write and publish does not include the right to charge for every search index or to break your computer in the name of "securing" music.
How the Sony DRM Debacle Can Benefit the Digital Music Market
Derek Slaterobserves that DRM proponents, who like to argue that "the market" stops DRM from going too far, don't much like it when the market stops DRM from going too far: "If you think current music DRM restrictions are not so bad, I challenge you: start the 'say yes to DRM!' campaign. And if consumers don't buyyour message, take that as a signal from the market."
Alex Halderman @ Freedom to Tinker: "It turns out that the web-based uninstaller SunnComm provides opens up a major security hole very similar to the one created by the web-based uninstaller for Sony’s other DRM, XCP, that we announced a few days ago."
For years, the entertainment industry's DRM strategy has seemed to follow the old story about how to boil a frog: Start it going in a pan of cold water and gradually turn up the heat.
So it is with digital rights management: Start consumers off with restrictions only the techiest edge-cases among them will notice, then quietly increase control. Apple's iTunes, for example, has downgraded the behavior of already-purchased music files. One day you could burn a playlist 10 times, the next day only seven.
Once you've accepted that "your" music comes with only a set of pre-defined uses -- and not any personal use you can invent -- you might not notice as you lose the ability to do your own format-shifting. Just as fans once re-purchased music as it moved from 45 to LP to CD, perhaps they could be conditioned not to complain if they were made to re-license when they replaced computers and stereo components. Instead of selling CDs, then, marketers will then be able to slice up the "music experience" and license pieces back to the fans whose rights they've taken, ideally for more than the one-time profit on a CD.
Given that Sony has taken to installing spyware to protect their music, you may be wondering why this episode in the DRM struggle has been good for the consumer. Simple: consumer awareness. For the past several years, much has been made of viruses and spyware and their adverse effects on our computers. The industry designed to stop these threats brings in tens of millions of dollars every year to stop these vicious pieces of software. The average consumer understands what a virus or spyware is. However, stop most consumers and ask them to explain DRM and you'll probably get a blank stare. Up until now, the consumer has been uneducated on what DRM is and how it will affect their daily lives. The major music and movie studios have been fine with this; and now that awareness is changing.
The average fan, who may never have been blocked from playing music from the (new) Napster music store on an iPod; who may never have tried to create her own version of the Daily Show from a TiVo-to-Go'd evening news program but been stymied by copy controls; suddenly has a vivid example of how DRM takes your music -- and your computer -- away from you. CERT, the US Computer Emergency Response Team, is advising
users, "Do not install software from sources that you do not expect to contain software, such as an audio CD."
In the wake of an explicit warning from the United States Computer Emergency Readiness Team (US-CERT) never to install "software from sources that you do not expect to contain software, such as an audio CD," Princeton's Alex Halderman and Jeff Dwoskin have developed a vaccine for those of us already infected by Sony-BMG rootkit DRM:
To install the tool, download this file to a temporary location, then double click on the file's icon in Windows. (Windows may ask you to confirm that you wish to add the information in the file to the system registry -- choose "Yes.") After the tool has been applied, you may delete the file. The tool will take effect as soon as you close and restart Internet Explorer.
Stanford's Center for Internet and Society has just announced Cultural Environmentalism at 10, a conference to gauge the progress of the "cultural environmentalist movement," as defined ten years ago by uber-copyfighter Professor James Boyle. It brings together a remarkable brain trust of leading thinkers on the digital commons to consider whether, as Boyle proposed, using lessons from the environmentalist movement has helped us to valorize the public domain and expose the social, cultural, and economic harms caused by its increasing enclosure. Given what's happening right now on Capitol Hill -- that is, IP maximalists arguing before Congress that fair use has outlived its usefulness -- the conference could not possibly be more timely.
On March 11-12, 2006, Stanford Law School's Center for Internet and Society will host a symposium to explore the development and expansion of the metaphor of "cultural environmentalism" over the course of ten busy years for intellectual property law. We've invited four scholars to present original papers on the topic, and a dozen intellectual property experts to comment and expand on their works.
Molly Van Houweling explores voluntary manipulation of intellectual property rights as a tool for cultural environmentalism. Susan Crawford extends Boyle's analysis to the age of networks. Rebecca Tushnet looks at the ways in which the law's impulse to generalize complicates the project of cultural environmentalism, and Madhavi Sunder looks at how the metaphor affects traditional knowledge. Professor Boyle will also offer some remarks, as will Stanford Law School's Professor Lawrence Lessig.
Linux Journal Senior Editor Doc Searls, in a lengthy essay that's more than worth the time it takes to digest: "We're hearing tales of two scenarios -- one pessimistic, one optimistic -- for the future of the Net. If the paranoids are right, the Net's toast. If they're not, it will be because we fought to save it, perhaps in a new way we haven't talked about before. Davids, meet your Goliaths."
Update: Tim Lee, offering a nearly as lengthy rebuttal: "I think the author of the article is wrong. Indeed, with all due respect to the people pushing so-called 'network neutrality' regulations (whose arguments I find persuasive on a lot of other issues), I think it’s rather silly. The Internet is a massive, chaotic, fiercely competitive ecosystem. No one carrier owns more than a tiny fraction of its capacity. No one company controls more than a tiny fraction of its content. In short, no one company is ever going to control the Internet."
Update #2: I haven't read it all the way through yet, but it appears that Jonathan Zittrain's latest paper takes a bird's eye view of the conflict, arguing that in order to salvage what's positive about the Net (its "generativity"), we may have to think through the unthinkable -- an unprecedented, but not fatal, level of technological "lockdown."
There is EFF. But only so long as people like you join as members.
As part of the bloggers' rights campaign, EFF has posted what could be described as a Miranda Rights for Bloggers. It tells you what your rights are and how EFF is fighting to protect them. Here, a snippet to give you a taste:
You Have the Right to Blog Anonymously. EFF has fought for your right to speak anonymously on the Internet, establishing legal protections in several states and federal jurisdictions, and developing technologies to help you protect you identity. With your support, EFF can continue to defend this right, conducting impact litigation to establish strict standards to unmask an anonymous critic in more jurisdictions.
You Have the Right to Keep Sources Confidential. In Apple v. Does, EFF is fighting to establish the reporters' privilege for online journalists before the California courts. With your support, EFF can defend news bloggers from subpoenas seeking the identity of confidential sources in more jurisdictions.
You Have the Right to Make Fair Use of Intellectual Property. In OPG v. Diebold, Diebold, Inc., a manufacturer of electronic voting machines, had sent out copyright cease-and-desist letters to ISPs after internal documents indicating flaws in their systems were published on the Internet. EFF established the publication was a fair use. With your support, EFF can help fight to protect bloggers from frivolous or abusive threats and lawsuits.
Under at least some circumstances, running Sony’s Web-based uninstaller opens a huge security hole on your computer. We have a working demonstration exploit.
We are working furiously to nail down the details and will report our results here as soon as we can.
Update: According to USA Today, Sony, which now says it "deeply regrets any inconvenience" people may have suffered, has decided to recall the infected CDs and will offer exchanges. Ed and Alex hope the plan includes doing what Sony ought to have done long ago: providing people with an easy-to-get clean-up tool that doesn't further damage their computers.
Update #2: EFF's open letter to Sony-BMG, which lists eight ways the company ought to make amends to its customers by Friday morning at 9:00 a.m. -- after which, presumably, the suggestions will become more than that.
Update #3: Security Fix: Researcher: Sony DRM on Half a Million Networks: "'It's funny, because the last time we saw these kinds of infection rates, they were because of bugs in [Microsoft] Windows that were later patched,' [security researcher Dan Kaminsky] said. 'But Sony's patch actually deploys new flaws.'"
Update #4: Wired: Sony Numbers Add Up to Trouble: "The results have surprised Kaminsky himself: 568,200 DNS servers knew about the Sony addresses. With no other reason for people to visit them, that points to one or more computers behind those DNS servers that are Sony-compromised. That's one in six DNS servers, across a statistical sampling of one third of the 9 million DNS servers Kaminsky estimates are on the net.
The damage spans 165 countries, with the top five countries being Spain, the Netherlands, Great Britain, the United States and Japan, which, with over 217,000 DNS servers reporting knowledge of Sony-related addresses, takes the top spot."
Update #5: Sony-BMG: "We currently are working on a new tool to uninstall First4Internet XCP software. In the meantime, we have temporarily suspended distribution of the existing uninstall tool for this software. We encourage you to return to this site over the next few days. Thank you for your patience and understanding."
As Jefferson Graham's story makes clear, consumers aren't happy. Artists aren't happy. Electronics companies aren't happy. But don't expect the Cartel to back down. They'll just batten down the hatches, stonewall, and wait for this to blow over. They're holding on to the fantasy that DRM will save their sinking business models and along the way they'll twist the courts, Congress, and device manufacturers to their wills. The rest of us should, presumably, shut up and suffer in silence.
Cory Doctorow, describing the kind of business models DRM enables: "They take the media that today lets you do everything copyright permits -- timeshifting and quotation, format-shifting and backup -- and they take away all those things. Then they painfully dribble each of those rights back as a 'feature' that you pay extra for. Drip, drip, drip -- each drop of functionality painfully and expensively squeezed into your living room, every time you want to do something you used to do for free. That's not a business-model. That's a urinary tract infection."
As if on cue in preparation for today's Picker MobBlog on the place of "the user" in copyright law (yes, folks -- that's you and me), Cindy Cohn on Friday offered a few bon mots on the Google Print Library Project:
I think that if the debate gets framed as a binary choice between authors and publishers on the one hand and Google on the other, it would be a shame. There is another interest here -- those of "us" who are trying to find the right thing to read. I submit that we "book searchers," more colloquially known as "readers," are an important part of this debate and that Google isn't really the same as us.
Whatever else one thinks about Google Print, it is unequivocally good for readers. I submit that allowing authors and publishers to control who or how easily we can find their works by controlling the search tools available to readers is unfair to "us."
Georgetown University law professor Julie Cohen, whose paper forms the basis for the MobBlog discussion, argues for a definition of the user in copyright law that better captures her role in copyright's "larger project" -- promoting the progress of knowledge.
It's a much-needed reminder: conflicts over copyright don't involve only the plaintiff and the defendant. If copyright is about promoting "the progress of science and the useful arts," it's also about us.
Pretty much precisely as predicted, there's a new Trojan out that exploits Sony DRM copy protection vulnerability. Details are sketchy at this point - it appears to have been spammed out from a hijacked machine as an email. The best info I've found so far has been Sophos' press release. They have a tool to detect and disable Sony's cloak.
Update: According to Brian Krebs' Security Fix column, a lawsuit has already been filed in California charging Sony with violation of three state-level statutes, and another state-oriented suit will be filed in New York this week.
Update 2: A press release from Electronic Frontiers Italy (which I take to be an Italian EFF-alike) describes a formal request made by that organization to the Italian "Commander in Chief of the Fraud Contrast Group of the Financial Police" in an effort to identify for legal purposes the authors of the malware, whether anyone else is doing similar things, and have them prosecuted under Italian laws that forbid "damaging" personal computer systems. The particular law(s) that apply to this situation aren't spelled out in the ALCEI release, but perhaps that's something the police are expected to determine.
"Stewart Baker, recently appointed by President Bush as the Department of Homeland Security's assistant secretary for policy, made a comment that suggested that some anti-piracy efforts introduced by the industry could have profound and unexpected effects on the security of the nation's critical infrastructures. ...
'I wanted to raise one point of caution as we go forward, because we are also responsible for maintaining the security of the information infrastructure of the United States and making sure peoples' [and] businesses' computers are secure. ...There's been a lot of publicity recently about tactics used in pursuing protection for music and DVD CDs in which questions have been raised about whether the protection measures install hidden files on peoples' computers that even the system administrators can’t find.'...
'It's very important to remember that it's your intellectual property -- it's not your computer. And in the pursuit of protection of intellectual property, it's important not to defeat or undermine the security measures that people need to adopt in these days.'"
Ina Fried has a story on news.com about the just-published Apple patent application. The idea seems to be that code would be limited to specific hardware and in theory could get around various simulators and virtualization technologies. I find this hard to believe, but perhaps that's why it's "resistant" rather than "proof." According to Fried's story, the OS itself would be obfuscated in such a way as to make it difficult to detect what MAC or ROM code was being read to validate the hardware platform. I haven't looked at the patent application yet, so I've no idea what prior art is cited. My guess is that there's a ton and the patent has little or none of it. Geeks who attack this technology as breakable (which it most certainly will be) are missing the point. This is further evidence that whatever Jobs says in public, Apple is kissing ass hard with the Cartel. Apple want to convince the Cartel that digital content will be locked up tight, using a combination of Intel's hardware and Apple's OS use of it.
Edward Felten has decided that in the battle to save innocent victims from Sony's reckless, self-destructive DRM bender, the time has come to start calling a spyware a spyware: "In all the discussion of the SonyBMG software, I’ve been avoiding the S-word. But now it’s clear that this software crosses the line. It's spyware."
He also suggests that Sony now recognizes how badly it has stumbled, but continues to publicly defend itself for strategic reasons. In other words, it's gathering the tatters of respectablity tightly around its shoulders as the winds of public disgust grow stronger, hoping that someone, somewhere, still believes it's doing the right thing. Because sometime soon, it's got to shave the beard, tuck in the shirt, and appear before a court of law.
Now the Legalese Rootkit: Sony-BMG's EULA helps you understand what Sony-BMG will no doubt claim you "agreed" to when you bought, opened, and inserted the CD into your computer. Example: "Sony-BMG can install and use backdoors in the copy protection software or media player to 'enforce their rights' against you, at any time, without notice. And Sony-BMG disclaims any liability if this 'self help' crashes your computer, exposes you to security risks, or any other harm."
Trademark law is supposed to curb consumer confusion -- not stop people from learning the truth about products, especially ones that affect human health. Which is why I'm thrilled to report that EFF has stopped one of the world's largest pharmaceutical companies, Sanofi-Aventis, from using trademark claims to censor AcompliaReport.com, an independent online newsletter devoted to reporting about a drug called Acomplia.
Acomplia may help people lose weight and quit smoking. It may not. But Sanofi-Aventis has no right to control the flow of information about the drug simply because it has a trademark on the word "Acomplia." Yet that's exactly what the company tried to do, demanding that AcompliaReport give up its domain name. Thankfully, EFF helped the publisher of AcompliaReport forge a settlement agreement, and Sanofi-Aventis backed off.
"The website uses the Acomplia mark solely to refer to Sanofi's product," explains EFF's Corynne McSherry in the official press release. "That use is a textbook fair use."
Oh, yeah -- fair use. That's the part of the law that allows exceptions to an intellectual property holder's exclusive monopoly rights for legitimate, critically important social and cultural reasons. Nice to know it still has a fighting chance on the Internet.
Grokster's death will likely spur several more rounds of frustratingly recursive debate over how to resolve the P2P infringement dilemma. Which is why, if you're new to the debate, you ought to skip on over to Freedom to Tinker and A Copyfighter's Musings, thereby advancing immediately to square two.
Arguments about the [RIAA] lawsuits often get bogged down in confusion over exactly which argument the lawsuit opponents are making. There are three types of anti-lawsuit arguments.
A moral argument against lawsuits says that bringing the lawsuits is morally wrong.
A pragmatic argument against lawsuits says that bringing the lawsuits isn’t the most clever strategy for a self-interested RIAA to follow.
An empirical argument against lawsuits says that the lawsuits are not reducing infringement.
Why are these distinctions important? Because they carry different obligations. "If you believe a pragmatic argument, then you must believe there is something more clever the RIAA can do; and you should tell us what that is," writes Felten. "But if you’re making a moral argument or an empirical argument, then you have no obligation to describe a better plan, because you’re not asserting that there is a better plan."
Indeed, you may even legitimately believe that no better plan exists. Explains Felten:
This is a common fallacy in policy analysis: assuming that whenever there is a problem, the solution must be some kind of bold new action. Sometimes bold action is just what’s needed. But sometimes bold action doesn’t solve the problem. Sometimes it only causes new problems. Sometimes your problem has no solution and your best course is to suck it up and figure out how to live with the problem.
In the first piece, Derek reports about the P2P litigation summit he participated in, arguing that we have to learn more about -- and from! -- the stories of the people that got sued by the recording industry. In the second podcast, Derek provides a big-picture analysis of possible (technological, business, and policy) approaches to the file-sharing problem. In essence, he makes a strong case why policy-makers should not take drastic measures (such as, e.g., compulsory licensing systems or, as the worst-case scenario, mandatory DRM schemes) to address the current digital media crises. Rather, policy-makers may be well advised to trust in the evolutionary power of market mechanisms on the one hand (emerging business models, in fact, might address the problem) and to focus on the reform of the DMCA and certain procedural protection measures on the other hand.
"Procedural protection measures" is a cold term, but they're exactly the opposite: they're aimed at protecting the innocent people caught in the crossfire of this battle. Even if you support the litigation campaign, you can also wholeheartedly support doing it right. Fairly.* And, as Tim Lee urges, you can also give serious thought and energy to considering what happens when, "a decade and 100,000 lawsuits from now," P2P is more popular than ever.
"The United States Supreme Court unanimously confirmed that using this service to trade copyrighted material is illegal." That's what the Grokster Web page says today as the result of a just-announced settlement. (Here are pertinent Google News and Technorati searches.) That's not, however, what the Supreme Court said... the language you now see on the Grokster home page was unquestionably scripted by the settling plaintiffs as PR -- without scrupulous regard to an accurate reading of the Grokster decision.
I've been particularly disturbed by the impact that a technology mandate would have on hobbyists and tinkerers. Right now, I can (and have) built an open-source personal video recorder -- imagine a TiVo on steroids -- to record and playback HDTV. I'm not redistributing television indiscriminately over the Internet, I just like being able to pause live TV or move recorded shows to my Treo to watch at the gym. If the broadcast flag were implemented, I wouldn't be able to buy replacement parts for that machine; even those building commercial TiVos would need to impose government-approved restrictions. [Link & emphasis added.]
Adds Wendy @ Legal Tags: "The question that left Dan Glickman cold came from Rep. Meehan, asking about the compulsory licensing of technology standards: (paraphrase) Do you think tech companies should have to surrender their intellectual property to protect yours?"
Update: Frank Field @ Furdlog: "Jesus H. Christ! This is what I get for being away from this for a couple of weeks...I am sure that proponents will point to this language as supporting innovation:
Section 101. No person shall
(b) manufacture, import, offer to the public, provide or otherwise traffic in any
technology, product, service, device, component, or part thereof, that —
(2) has only limited commercially significant purpose or use other than to modify or cause an analog video input device to no longer conform to the requirements set forth in subsection (a); or
Of course, any novel application is not going to have more than 'limited commercially significant purpose or use' until it gets disseminated and understood (c.f., TiVo). As written now, without the funds to implement VEIL, a firm looking to develop a new application (or, God forbid, an open source application!) would be formally restricted."
Yep, that's three horrors -- one for each profoundly misguided government technology mandate that the RIAA and MPAA are pushing, hard:
On Thursday, November 3rd, the heads of the MPAA and RIAA presented to the House Subcommittee on the Courts, the Internet, and Intellectual Property their plans for the future of digital technology.
For high-definition television (HDTV), the MPAA demands every receiver must have, and obey, the broadcast flag. For new radio technologies, you'll be restricted to recording radio shows for a minimum of 30 minutes, for a maximum of 50 hours. And all analog to digital video conversions will be forced to watch for, and obey, a concealed copy restriction mark.
If any one of these provisions pass, it would be a disaster for you and for innovation.
There'll be no room for open source software here. All of these devices must be "robust" -- welded shut to prevent alteration by their owners.
There'll be no room for innovation without the say-so of Hollywood. And there'll be no fair use copying without breaking the law.
I am not a lawyer and so can't hazard much more than a guess, but wouldn't Sony be liable if someone's machine got cracked using the exploit that Sony/BMG installed? They might claim that the flaw lay in the original OS and not in their code, but I can't imagine Microsoft would let that claim stand. Certainly they'd be liable for contributory damages, even if not criminal penalties?
The creators and owners of these copyrighted works will not be compensated, nor has Google defined what a “snippet” is: a paragraph? A page? A chapter? A whole book?
The answer is “less than a paragraph.” You can find that page by going to the Google Print home page, clicking “About Google Print,” and then clicking “view our Google Print Screenshots.” There are links to that page in several other places on Google Print’s web page as well.
Am I off base to think that this falls under the category of “basic fact-checking?”
I've linked to these posts before, but they're excellent resources for clearing up the confusion about what Google is doing, and well worth passing along for anyone who might otherwise be led astray by articles like Schroeder's:
Bonus: Peter Suber's 9-point reply to the Schroeder/Barr piece: "Why is it more important for you to disparage the arguments against you as intellectually dishonest than to restate them honestly and criticize them?"
James Boyle, contemplating the birth, 15 years ago, of the first web page: "What would a web designed by the World Intellectual Property Organisation or the Disney Corporation have looked like? It would have looked more like pay-television, or Minitel, the French computer network. Beforehand, the logic of control always makes sense. 'Allow anyone to connect to the network? Anyone to decide what content to put up? That is a recipe for piracy and pornography.' And of course it is. But it is also much, much more."
Because the street finds its uses [hyperlink, mine]: "Blizzard Entertainment, the maker of World of Warcraft, has created a controversial program that detects cheaters by scanning the processes that are running at the time the game is played. Called the Warden, the anti-cheating program cannot detect any files that are hidden with Sony BMG's content protection, which only requires that the hacker add the prefix '$sys$' to file names. "
Pat Schroeder, the former Congresswoman from Colorado is now the president of the Association of American Publishers (AAP) and a vigorous opponent of Google’s plan. She is also an author. I went to Amazon and searched in her book 24 Years of House Work and Still a Mess for the word “property,” and Amazon’s technology found for me on page 286 the following snippet:
"Protecting intellectual property is my main focus at AAP. Technology has made it so easy to copy anything you create ..."
She’s right about technology. However, my finding that snippet and using it for this article is not a copyright violation. I didn’t ask Schroeder or her publisher for permission to use the quote in her book. Indeed, there’s an entire industry, book reviewing, predicated on the ability of people to do something similar to what I’ve just done.
The way the current copyright law works, I can take a book out from any library, read it and write a review of it for publication on the Web site I edit or in the pages of Forbes.com or anywhere else. This “fair use” of material involves no copyright violation. Readers benefit from learning a bit about the book, authors and publishers benefit from increased exposure.
While the details need to be hammered out, what Google hopes to do is similar. It’s not proposing making an entire copyrighted book available for public viewing. Instead, it’s enabling anyone at any time to see the functional equivalent of a quote or passage from a newspaper or magazine book review.
We already permit such uses of snippets for the development of book reviews. Google’s proposed technology is an extension of that. It permits much wider dissemination of relevant snippets of books--in doing so it will whet the appetite of a reading audience that is now global in scale. Authors and publishers stand to benefit greatly.
Who knows, after hearing about it in this article for what I’m sure is for almost all of you the first time, you might even be inclined to buy Pat Schroeder’s book.
[Note: I took the liberty of changing the title of this post; the earier version, "Reading Schroeder," didn't give readers much of a clue about the content. I also corrected the spelling of the name of the author of the Forbes piece: it's Schulz, not Schultz.]
Update: Ann Bartow weighs in: "The rabid hyperbole and misrepresentations about copyright law in this piece are truly shocking. And I assert both 'fair use' and First Amendment rights to bring it to your attention in its abysmal entirety."
Yesterday, the companies released a software update that they say “removes the cloaking technology component that has been recently discussed in a number of articles”. Reading that statement, and the press statements by company representitives, you might think that that’s all the update does. It’s not.
The update is more than 3.5 megabytes in size, and it appears to contain new versions of almost all the files included in the initial installation of the entire DRM system, as well as creating some new files. In short, they’re not just taking away the rootkit-like function — they’re almost certainly adding things to the system as well. And once again, they’re not disclosing what they’re doing.
Speaking of disclosure, Felten also responds to law professor Eric Goldman, who argues that regardless of how people feel about DRM, Sony/BMG's EULA appears to cross all the t's and dot the i's. Writes Felten [emphasis, mine]:
While the legal question is beyond my expertise, it’s awfully hard to see how, from a common-sense viewpoint, SonyBMG could be said to have disclosed that they might be installing rootkit-like software. Surely the user’s consent to installing “a small proprietary software program … intended to protect the audio files embodied on the CD” does not give SonyBMG free rein to do absolutely anything they like to the user’s computer.
Surely not. And that's where (much of) the anger and outrage is coming from.
(1) Admit that there is a problem. The companies can admit that the software uses rootkit-like methods and may expose some consumers to increased security risk.
Step two? Admit to the Higher Power, to yourself, and to other human beings the exact nature of your wrongs.
(2) Modify product packaging, company websites, and EULA language to disclose what the software actually does.
Three? Make a list of all persons you have harmed, and become willing to make amends to them all.
(3) Release a patch or uninstaller that lets any consumer easily remove or disable the rootkit-like functions of the software. Having caused security problems for their users, the least the companies can do is to help users protect themselves.
Finally, come to believe that a Power greater than yourself can restore you to sanity. Computer security experts can expose you to ridicule by the entire Internet community -- or help you climb out of the gutter and start anew in the world of respectable, trustworthy computing.
(4) Make clear that the companies support, and give permission for, research into the security implications of their products. Saying “trust us” won’t cut it anymore. Having betrayed that trust once, the companies should publicly welcome the Mark Russinoviches of the world to keep studying their software and publishing what they find. If you act like you have something to hide -- and you have had something to hide in the past -- the public will be smart enough to conclude that you’re probably still hiding something. This is especially true if you announce that you are trying to find new ways to do the thing that you were just caught doing!
Tim Lee in Reason, criticizing the misleading arguments IP maximalists use to discredit people who support traditional limits to copyright: "By lumping together the very real threat of the government taking people's land with an imaginary threat of IP anarchists abolishing intellectual property, the copyright industry and its allies hope to portray themselves as defenders of traditional property rights. The problem is that their own copyright agenda is a radical departure from America's copyright traditions." Lee has more about framing copyright debates here.
But that's not spooky enough for the MPAA. For their party trick this year, they want to take one of the most basic and ubiquitous components in multimedia, and encase it within a pile of legally enforced, complex, and patented proprietary technology -- forever.
Ladies and gentlemen, the MPAA have chosen Halloween week to resurrect their most misconceived monster ever: the Thing from the Analog Hole.
Feel free to flick through this new Halloween document [PDF]: it's a legislative draft proposed by the MPAA for a hearing of the House Subcommittee on Courts, the Internet, and Intellectual Property, on the topic "Content Protection in the Digital Age: The Broadcast Flag, High-Definition Radio, and the Analog Hole," on November 3rd.