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.
Consumers can buy and sell almost anything on eBay, the giant online auctioneer -- including a used tube designed to be inserted into a patient's jugular. ...
EBay Inc. says it is not its role to oversee the buying and selling of such devices on its service. "We don't take responsibility for items sold on the site," said company spokesman Hani Durzy. "We're a marketplace."
That means buyers and sellers of reprocessed single-use medical devices on eBay operate largely under the radar. In many cases, there is no certain way of knowing where sellers obtained such used medical devices and no sure way of knowing who bought them, interviews and records show.
Those of you who have been watching this space will recognize the divergence from eBay's intellectual property practice, where participants in a "Verified Rights Owner" program can get expeditious removal of listings merely by registering and reporting claimed infringements of their trademarks or copyrights. So Mars Candy can stop the sale of M&M-patterned pillows with a letter, but eBay is just "a marketplace" when it comes to percutaneous lead introducers and biopsy instruments.
Now I'm not saying there's anything wrong with the sale of refurbished medical equipment, provided it's properly checked and sterilized by its purchaser, nor that there's anything right about the sale of pirated movies. There's just something strange about a system that gives a market more incentive to police pictures than pacemakers.
Mostly what I expect is that this will mean the rich get richer, as Google will drive sales to the big-name online sellers, though they do include a link for any music seller to request to be listed. There does not appear to be a comparable way for artists to get listed - presumably Google wants them to continue buying Adwords.
An AP story today (here on BusinessWeek Online) tells of Visto Corporation, a startup company, going after Microsoft with a patent infringement lawsuit over mobile email technologies. The suit is apparently based on intellectual property that Visto got in a deal with NTP. According to the story NTP has licensed its winning patents to Visto and has taken an equity stake in the startup.
Microsoft's forays so far into the mobile email market have been tentative, probably because the field is changing so rapidly and Microsoft is still working out its strategy. Visto is also publicly charging Microsoft with the kind of "bundling" that got the software giant in trouble with antitrust regulators in the US and Europe, though it's not clear if these anticompetitive claims are part of the actual infringement suit or just Visto attempting to sway opinion.
Neil Gaiman pointed to this entry in Diane Duane's blog. In it, Duane proposes an experiment in direct creator-audience business. Basically, she has the outline for a third novel in a series where the first two didn't sell all that well. Given the lackluster sales her regular big-market publisher won't take a chance on the third. But there's still a dedicated fan base that wants to see the story concluded, as well as completists, collectors, and those who might want the cachet of owning a novel written "on spec" by a big name author.
A niche audience to be sure, but isn't the 'net about connecting up niche groups and letting them do things they couldn't do as isolated individuals? Duane estimates that the per-person cost of such a book would be USD 20-25 in paperback form. That's a hefty premium over even today's inflated paperback prices (typically $5-8) but not out of the reach of people who are collectors or who are used to paying for specialty items.
What Duane is asking is for feedback on this idea - the email address is in her blog - and for people to publicize the notice. I'm not personally a Duane fan, but I am a fan of experiments in new business models. So I'm publicizing and urging you to do the same. Blog this, put it in places where people who care about publish-on-demand and similar topics will see it.
All you parents - recognize this sequence? First, deny there's a problem. Second, blame someone else. Third, try halfheartedly to fix it but generally make a bigger mess in the process. Fourth, and only when forced, actually clean up the mess. Finally, hang head and make a sorrowful face while promising to do better next time, but don't actually change behavior.
If you guessed "my five-year-old child" you were right. If you also guessed "Sony BMG" you're right again.
The school, a public institution, does not have the overriding drive that corporate patent holders do to maximize profit. Certainly there are costs and expenses to be paid and Carol Mimura, currently heading the office of intellectual-property management for Berkeley, seems well aware of that. However, for the past three years the school has attempted to balance its role as entrepreneurial enabler with a role as a responsible social agent. The article details ways in which what they call "the full spectrum of IP-management strategies" has been deployed to produce win-win situations.
Berkeley is famed for leftist/socialist leanings and that will doubtless color how some people read their initiatives. I, however, am heartened to see an approach that is not rejectionist towards the intellectual property system, but rather attempts to use it to serve a multitude of beneficial ends. I think that was what the Constitution's framers had in mind when they set patents and like into the original text.
Robert X Cringely's column looks at two approaches to a "media storage locker" - that is, a company-hosted server on which people or organizations can place media for later download or streaming. The locker concept comes from the theory that there's a key supposedly held by one person and since only one person is accessing the uploaded media it's not a copyright violation. There's also a few serious differences between lockers that store-and-download versus streaming content that never finalizes on the end computer's disk. Lots of questions, few answers at this point.
In response to a few kind inquiries from readers about my blog-trumping life transitions: I've been largely absent from Copyfight lately because I've just started a new temporary job: writing for Google. I'm there because Google is in the position to do tremendous good for the future of the networked world, and I want to help keep fair use alive and defend our ability to access, explore, and understand our shared culture and past. As a society, we're catching glimpses of a new era -- one where you won't need a verified, tuition-paid university ID to discover and search through the books that generations of librarians and scholars have collected for all of us. Google isn't alone; individuals, nonprofit organizations, and other companies are all working to realize various aspects of this collective dream. It's my hope that we won't have to stop at glimpses.
[Standard disclaimer, in case you missed it over there on the left: the opinions I express here are my own and not Google's; direct any responses to me.]
Another announcement landed in my inbox, this one for "holiday shopping" in case you want to give the gift of music without supporting the Cartel. Freeculture.org has put together a sextet of lists, each with ten suggestions for CDs you can buy while staying outside the grips of the major labels and the RIAA in general.
Brennan Center for Justice Report on Free Expression
Marjorie Heins of the Brennan Center for Justice's Free Expression Policy Project sent me a blurb touting their new report "Will Fair Use Survive? Free Expression in the Age of Copyright Control." The report (PDF) is available online. I have not read the report yet myself, but it's touted as covering threats to both fair use and free expression, at least as these things are understood in US law.
One of the more frustrating things about debating copyright issues is that copyright mythology sounds a lot more like the truth than the truth. For instance, many people believe that copyright law gives the copyright holder absolute, immutable control over a work, lasting into perpetuity. The truth -- that copyright has built-in limits to protect free speech, scholarship, research, and innovation (the "progress of science and useful arts") -- sounds like a lie. Surely all of that stuff is just bleeding-heart liberal, mushy-minded nonsense?
Oh, well, actually -- no. Fair use exists, and for very good reasons.
Thankfully, as more and more of us confront copyright issues in our daily lives, the number of copyright mythbusters is also growing. The past few weeks have brought us the usual heaping helping of copyright disinformation. Here, four pieces by mythbusters working hard to set the record straight:
Tim Lee, picking part a policy brief shoddy propaganda document claiming that legislation to protect fair use will destroy copyright law as we know it: "[We] have this gem: 'Providing an exemption for any device that has non-infringement purposes effectively destroys all protections of copyrighted material.' I bet Justices Stevens and O’Connor will be surprised to learn that they abolished copyright law when they established precisely that standard in 1984. Who knew that America had no effective copyright protections until Congress enacted them in 1998?" (Here, Joe Gratz on the same "brief.")
Joseph Lorenzo Hall, responding to an NPR report on the Google Book Search debate: "It's painful to listen to as the discussion involves two commentators who don't know anything about copyright law and one representative from a university press who misrepresents copyright law ('You've always had to ask permission in traditional copyright law'... hello, fair use, anyone?!?!)."
Derek Slater, likewise rebutting the argument that any copying without permission is infringement/piracy: "Goldenberg is thus dead wrong when he says that Google Print necessarily takes control away from authors and 'compromises the spirit...of copyright.' If Google’s use is fair, the authors have no such control to begin with, and fair use is entirely consonant with copyright’s purpose. Google’s use is piracy only in the sense that fair use quoting is piracy."
Peter Suber, deconstructing a Google Book Search critic's mistaken argument that the project will harm small publishers because Google is republishing books under copyright (it isn't): "But perhaps P&C is really thinking about its public-domain books, such as the complete works of Daniel Defoe. It's possible that Google scanning of these books, coupled with its policy to provide free online full-text for reading, will undermine library sales and hurt P&C's business. If it wants protection from this threat, then we have to ask which is worse, Google's decision to take advantage of its right to use public-domain literature or a publisher's attempt to re-enclose the commons and extend copyright-like control over public-domain literature?"
I remain in the midst of blog-trumping life transitions, so I can't linger, but here are a few better-late-than-never links that address fair use:
'Tis the season for miracles, and it looks like Diebold, the company that tried to gag college kids with specious copyright claims for revealing potential flaws in its voting machine technology, is the happy beneficiary. In less than 24 hours, the North Carolina Board of Elections inspected and chose to certify Diebold equipment for use in real elections. That's after the Electronic Frontier Foundation, my beloved former employer, dragged the company, kicking and screaming and grabbing desperately onto door frames, into the courtroom. Where company lawyers insisted, repeatedly, that Diebold could not possibly meet the basic requirements for such an inspection.
Explains e-voting superhero Matt Zimmerman at Deep Links:
Diebold pleaded with the court for an exemption from the statute's requirement to escrow "all software that is relevant to functionality, setup, configuration, and operation of the voting system" and to release a list of all programmers who worked on the code because... well... it simply couldn't do it. It would likely be impossible, said Diebold, to escrow all of the third-party software that its system relied on (including Windows).
What a difference a few days make.
Despite Diebold's asserted inability to meet the requirements of state law, the North Carolina Board of Elections today happily certified Diebold without condition. Never mind all of that third-party software. Never mind the impossibility of obtaining a list of programmers who had contributed to that code.
And never mind the Board of Election's obligation to subject all candidate voting systems to rigorous review before certification...
It's not sexy these days to talk about the battle over transparency and accountability in voting technology. It's the wrong November, and there's no "rootkit" in e-voting. But this kind of outrage continues to happen. If you value hearing about things Diebold and other companies really wish you wouldn't, pass the word along and join EFF today.
In my more fanboy moments, I hang out with writers (books) and artists (sculptors, photographers, musicians). For the most part they've bought into the Cartel's propaganda. They're worried about "piracy" and someone "stealing" their work. I don't have many big-name creative friends, so most of the folk I talk to are sensitive to even a small loss of income when they make very little to start with. They tend to believe that DRM is a good thing and that it'll somehow help them get paid more or better.
What we now see is that the exact opposite is true. Musicians and their managers, according to Wollert, are starting to realize that DRM is preventing sales. Bad publicity is the kiss of death and it's really unclear whether any Sony artists are going to escape at least some level of contamination. That translates to lost sales, often dramatically lost (50% drop in one week - ugh).
If the creative corp finally get it through their heads that the Cartel's DRM strategies are only there to fatten executive wallets then we might actually see a kind of revolution from within. As Wendy noted a couple weeks back, the frog may well jump out of the pot.
I also have to hope that The Association of American Publishers will catch on to this. Although the current fiasco is over music disks, there's a very direct and very short line between the meme "don't use DRM to screw up fans' experience of artists' music" and the meme "don't use mistaken interpretations of copyright law to stifle readers' desire to find books."
(well, I couldn't say they were pushed to the rim, could I?)
RIM is fast running out of maneuver room. A federal judge has ruled that the company's preliminary settlement with NTP isn't enforceable, rejected a request to wait for final word from the USPTO and is moving to reinstate an injunction against BlackBerry service in the United States. My guess is that all of these actions could be appealed but it seems likely that RIM would rather settle than fight, even though the settlement costs could be quite high.