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.
I predicted back in October that NTP's win would not mean shutting down the service and that's held true so far. The service is hugely popular and so shutting it down, even temporarily, would bring a great hue and cry. Apparently banking on this, RIM are asserting that the NTP licensing terms were "far too prohibitive" and asking for a new trial to determine damage award amounts. Presumably they're trying to wear NTP down while subscriber cash continues to flow into their coffers.
The judge has already been public once about his strong desire to see the parties settle, and yet has been willing to go along with business-as-usual. As I understand it, he has a number of options he could invoke short of a full suspension of service, including requiring RIM to provide various financial securities against a future damage amount, above and beyond the 8.5% of quarterly revenue it is required to escrow now. He could also lift his stay of injunction against RIM selling new Blackberry devices.
Finally, the whole court proceeding could be mooted if the USPTO invalidates the patents at issue. So far, only two of the five contested patents have received "final" review, and NTP has at least two levels of appeal past that, should it come out the loser at the patent office. Since NTP will collect damages covering the period of patent validity (i.e. now and until a final-final invalidation) they also have little incentive to go home. From their point of view the longer RIM stalls, the more the meter keeps running. Invalid patents could, of course, not be licensed to other companies (see RIM/NTP Mud Splashes Microsoft) but with USD250 million already in the bank NTP are not going to be hurting no matter how this comes out.
Matz's ruling agreed with Perfect 10 on one aspect of its claims, that thumbnail images used by Google Image Search are copyright violations. The judge declined to issue an injunction based on Perfect 10's other claim, which is that Google was responsible for providing links to third-party Web sites that, themselves, host images illegally copied from Perfect 10. So linking was OK, but caching was not.
And therein lies the rub. Caching is used in a number of Internet technologies, including proxy servers, media services such as Akami, server farm and load balancing applications, and of course all search engines and services that run Web spiders. Matz is clearly trying to tread a line that both allows Google's indexing business and respects Perfect 10's copyrights. The problem is that I don't think there is any such line to be walked. Either what Google does is fair use and Perfect 10 can go away, or it isn't and we will have to fundamentally rethink Web search and indexing.
Apple's DMCA takedowns to web sites discussing the new Intel operating system -- and ways to get it running on non-Mac hardware -- have been in thenews lately. Now, Chilling Effects has the notices sent to two of the sites' ISP, and what they don't say is as interesting as what they do. (Notices sent regarding the OSx86 Project and Win2osx.)
Both letters claim that "Apple uses encryption and other technological measures in Mac OS X ver. 10.4.4 to effectively control access to its copyrighted operating system code and to effectively protect its rights as a copyright owner in that code." Apple says hacks to enable OS X to run on non-Apple hardware "are primarily designed and produced for the purpose of circumventing those technological measures," in violation of the anticircumvention provisions of the DMCA.
Apple claims further that the Win2osx site posted pieces of Apple's copyrighted code -- but it does not make the same claim against OSx86. The most it can claim is that the OSx86 site linked to a third-party site (Maxxuss, hosted in Russia, down as of this posting) offering circumvention code and copied code. The ISP gets a notice as host to a linker, at best a tertiary connection to the claimed infringement or circumvention (but one in the United States and easy to find).
The OSx86 Project is back, minus links to the Maxxuss site. But at bottom, was Maxxuss infringing or circumventing? Clearly it was doing something Apple would prefer not be done, offering users a way to unbundle OS X software from Mac hardware. But isn't that the kind of reverse engineering for interoperability that is fair use under copyright law and was supposed to be preserved in the DMCA? Provided users of the Maxxuss patches had validly licensed copies of the OS, their use should be a matter of their own choice and the terms of their OS X licenses, but not a circumvention. Once again, anticircumvention offers a big hammer for those who want to break interoperability.
(now we see how old our readers are by whether or not they know who Bill Graham was)
John Borland reports for CNET that entrepreneur Bill Sagan has digitized and is Web streaming his vast archives of live shows. This is an important piece of rock history, captured in an era when bootlegs were tapes and fans toured along with bands such as the Grateful Dead and Jefferson Airplane. The archive will begin featuring video later this year, much of it never-before-seen footage. The service is fairly new, but apparently has hit home with listeners. Excuse me while I go set my player pointer.
The NYT updates the story of the "Lazy Sunday" sketch: after finding new life for Saturday Night Live in a mock rap segment that spread "virally" far beyond the television sets, NBC sent out the copyright squads. They sent cease-and-desist letters to hosting sites such as YouTube, whose copy of the video had risen to the top of a Google search.
Julie Summersgill, a spokeswoman for NBC Universal, said the company meant no ill will toward fan sites but wanted to protect its copyrights. "We're taking a long and careful look at how to protect our content," she said.
Several online commentators noted that NBC's response to YouTube, while legally justified, may have been short-sighted. The online popularity of "Lazy Sunday" has been credited with reviving interest in "Saturday Night Live" at a time when it is in need of some buzz.
I'm sure NBC lawyers need no reminding that unlike trademarks, copyrights do not need to be policed to retain their validity. Instead, NBC seems to be shutting down its own best advertising.
Or maybe their memories are as faulty as their DRM systems.
As noted in EFF's Deep Links, the RIAA have submitted a comment filing as part of the DMCA rule-making process. In this comment we find the claim that it is not fair use for you to copy your own CDs to your own iPod. Problem? Well, aside from being an absurd claim rejected by tens of millions of consumers, it's also directly contradictory to what these same folk argued in front of SCOTUS during the MGM v Grokster case.
Deep Links has the pointers both to the filing and to the PDF of the oral argument transcripts, as well as the snarky and on-point comment that the RIAA's characterization of personal copies as being "pretty legal" seems to mean "legal until we say otherwise."
In response to the latest DRM flap, my friend Peter Cassidy remarked:
[T]he RIAA has a patent for placing DRM in ear canals. Apparently, they're going to present new parents with a demand leter at the birth of every child. Install the system, or pay the estimated value of all the music the child will steal in a lifetime. The congressmen from Disney will be considering the legislation for a moment or two before passing it unamended sometime this year.
First, the authors claim that the two DRM systems analyzed - MediaMax and XCP - are more complex than usually described. Secondly, they claim the systems suffer from "a diverse array of flaws" and that these flaws in turn lead to both security and privacy risks for consumers of the audio disks. I have not had time to read the report in depth; if one of you has, please give us a review?
ABC News Primetime are set to air a segment on the radio payola business titled as above. In the eastern US where I live that'll happen tonight. Check for broadcasts in your area. You can search the abcnews.go.com site for the subject phrase to find the info and webcast.
In a related note, Kristin Thomson of the Future of Music Coalition wrote to let us know about the FMC's attempt to push the FCC into actually giving a damn about the current payola business. They have a copy of their letter online. While I'd love to see the FCC actually do something, I have strong doubts they'll do more than make appropriate noises.
The Author's Guild is warning that the proposed "Trademark Dilution Revision Act" is set to eliminate noncommercial use of trademarks. What this means is that an author couldn't, for example, have a character walk into a named fast-food chain outlet without acknowledging the (TM) and possibly even paying for its use. As the AG point out, trademarked names, brands, slogans and suchlike are important parts of modern cultural discourse. The noncommercial use exemption to trademark exclusivity needs to be preserved.
Ralph Koster's blog has a short note about a gaming guild calling itself "The Syndicate" trademarking its name. This is, as far as I know, completely new legal ground. Questions will certainly arise about ownership given that most games' Terms of Service give the game company explicit rights to things created in the game. However, the organization (clan, guild, whatever it's called) is an extra-game and cross-game real-world entity, not something created within the fantasy world. As such, is it entitled to the usual trademark protections? Can it try to impose those protections inside the game world?
I don't even know where to begin in talking about this one. The blog "Gizmodo" has announced the winner of its competition to create a remix track. The track must be "based on the sound of Hitachi hard drives failing". No, really. Hitachi has a page with .wav files playable so that people can figure out what that noise their hard disk is making might mean. The challenge was to remix these sounds (are they copyrighted? can you copyright ambient sounds? can you copyright a sound made by a machine if there's no human intervention to produce that sound?) into a music track.
The winning entry is composed entirely of the disk sounds, and is quite eerie. The runners-up are a little more conventionally musical, but still pretty off-kilter. Fun concept, at least.
Down and Out at MIT: An Evening with Cory Doctorow
February 13, 5-7pm, Bartos Theater (E15).
Lecture/booksigning by noted copyfighter Cory Doctorow, writer, public speaker, co-editor and blogger for BoingBoing, and European Affairs Coordinator for the EFF. Sponsored by MIT Office of the Arts Student and Artist-in-Residence Programs and Comparative Media Studies. Reception follows in E15 lobby. Free and open to the public.