Donna Wentworth
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About this weblog
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.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

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Monthly Archives

October 31, 2006

Writers, Wills, and Posthumous IP Care

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Posted by Alan Wexelblat

Neil Gaiman's blog entry today is an earnest attempt to get writers (and by extension any of us with intellectual property we care about) to put instructions into our wills relating to that IP.

The prompt for this is apparently the fact that the recently deceased writer John M Ford failed to leave such a will and as a result the status of his literary works is uncertain. Since the multiple changes to copyright law in the last century extended IP rights well past the death of the original author, Gaiman's advice is very sound. If you care about who gets to reinterpret, republish (or keep from publication!) or otherwise handle your creative output after you're not around to do it, leave legally binding instructions, dammit. This especially includes situations where people would like to release their works after they're no longer able to personally profit from them. By default if you don't specify, then nobody gets to do anything.

Gaiman also includes a link to a simple will (in PDF form) written by a lawyer who is also an author. This file is intended for direct use or as a template for US-resident creative types who care about these issues.

Comments (1) + TrackBacks (0) | Category: IP Use

October 26, 2006

DVD Jon Does It Again

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Posted by Alan Wexelblat

Apparenly Jon Johansen has cracked the code that locks iPods into downloading only from iTunes. If this is true then it should be possible for other stores to offer iPod content for purchase.

Unlike some of Jon's other code ventures, this one sounds like a legitimate case of reverse engineering with obvious business models. Like those who crack proprietary codes for things like printer cartridges, Jon's crack doesn't directly remove Apple's DRM, but it does permit competitors to enter a market that had been technology-locked.

It will be trivial, of course, for Apple to change its codes and push a download out to iPod users any time they connect to iTunes or other networked Apple service. This change could re-establish Apple's monopoly. However, if Apple does so, what's to stop a rival music provider from suing for unfair restraint of trade? It seems to me that the printer-cartridge analogy is pretty strong and would give at least a skeleton of a legal case.

According to the Ars Technica blurb, Johansen and his new company will argue that the enabling of competition is protected by the interoperablity clause in the DMCA. This is a very different story than an effort to make iTunes music available on other players, wihch might be viewed as impermissible removal of DRM software.

Comments (0) + TrackBacks (0) | Category: IP Abuse

October 24, 2006

Trustworthy, Loyal, Helpful, Brainwashed

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Posted by Alan Wexelblat

It's really hard to top Techdirt's headline for this story: The Boy Scouts Now Have An MPAA Merit Badge In Misleading Arguments. If you're a Boy Scout in southern CA you can now get an "activity patch" (which is apparently different from a "merit badge") in such key survival techniques as identifying copied CDs, ratting out your friends for downloading, and sucking up to Hollywood. Yeesh. What ever happened to helping old ladies across streets? Cory Doctorow also had some choice words on the topic. Any connection between this activity and the large donations given by Hollywood to the Boy Scouts is purely coincidental. Really.

Comments (3) + TrackBacks (0) | Category: IP Abuse

October 18, 2006

Put A LittleSeratoninInMe

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Posted by Alan Wexelblat

I think it's a race to see who'll sue first: Justin Timberlake, whose song is being parodied, or SmithKline Beecham whose "social anxiety disorder" drug Paxil is the topic of the parody. My bet is on SK-B. Anyway, see the video on YouTube, at least for now: Paxilback, by Gray Kid

Comments (1) + TrackBacks (0) | Category: Humor

October 17, 2006

A "Mock-You-mentary"

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Posted by Alan Wexelblat

The Web site War of the Words is releasing a week-by-week 'documentary' of the '101st Fighting Keyboards'. The Flash movie chronicles the post-9/11 rise of the hawkish right-wing blogging community, largely in their own words. The film is an obvious parody and uses limited quotes from the published blogs themselves. My guess is that this is standard protected activity, even down to the use of cartoonish voices to read out some of the quotes. it does raise the question in my mind of whether someone's blog can be said to make taht author more of a public figure and thus subject to different standards for torts such as slander or libel. (Watch the trailer)

Comments (0) + TrackBacks (0) | Category: IP Use

October 16, 2006

IBM to SCO: Shove It, And Here's Why

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Posted by Alan Wexelblat

A friend pointed me to this blog posting on the latest developments in the SCO vs IBM-and-everyone-else-Linux case. My first response was "Is that STILL going on?"

Oh, yes, friends, the case is dragging into its third year and not only is it dragging, there's no likelihood of a trial on the facts any time soon. As near as I can make out, both sides have buried the judge in motion requests, each of which has to be considered on its merits and ruled on by the judge before anything else can happen.

One of the motions filed by IBM was a request for summary judgement - essentially saying "Judge, this is crap so please just tell them to go away." It is my sense from talking to various legal people that judges are usually extremely reluctant to issue summary judgements. If nothing else, a judge tends to feel that even a far-fetched case deserves a hearing and to be fair it may be that new things emerge at trial, or the threat of an actual public trial may force parties to settle or compromise. Not to mention that any summary judgement in a high-stakes case is itself going to be appealed and may put the judge him- or herself under scrutiny.

So if IBM wants to win this motion it really has to deploy extremely convincing evidence in support of the motion. Naively speaking they'd have to show that their case against SCO is a slam-dunk or that SCO's claims are utterly without merit.

Which brings us back around to the blog posting. Since the trial documents are not public (and may never be) we have at best a redacted version of IBM's supporting document (linked at and There appear to be five reasons IBM is willing to argue why SCO's claims should be dismissed.

1. No Code, No Crime. SCO has yet to produce any evidence to support their claim that IBM copied protected code into Linux. In addition, IBM argues that SCO hasn't produced evidence to show what rights it has in the particular code it claims IBM copied.

2. Got License. IBM argues that its various licensing deals permit it to use the code. The judge may also be swayed by the argument that some of those licenses came from SCO's predecessor companies or organizations in which they were members. Caldera's actions in respect to that same code under the GPL may also be relevant.

3. Promissory Estoppal. IANAL and I don't pretend I can explain this concept in general, but it appears that IBM is claiming SCO's legal predecessor (Caldera) encouraged and endorsed use of the code. SCO can't go back on that.

4. No Copyrightable Code. IP Wars admits that there's a lot of relevant context in the material not in the public domain, but what appears to be happening here is that IBM is claiming the particular lines of code identified as contentious are themselves a functional entity and not expressive in the manner that would invoke copyright protection. This is not a position statement from IBM on the copyrightability of code in general, but rather an argument that SCO is picking-and-choosing particular statements (e.g. function prototypes) that don't _do_ anything. There's a technical point here about whether the code lines constitute part of an international standard and/or an API definition in which case IBM may be drawing on previous case law that has ruled such interfaces are not copyrightable.

5. Copyright Misuse. IBM appears to be claiming that SCO is trying to enforce copyright law in ways not permitted. IP-Wars claims that "the penalty enforced by federal courts for overreaching copyright claims is forfeiture in the instance." So if this is true and the court finds that SCO overreached itself, the court might dismiss the entire case on these grounds alone.

Now with all that said it's important to remember that SCO will be submitting material arguing the other side and it's possible they'll find persuasive counter-arguments to each of IBM's points. Or maybe the judge will chuck this entire mess in the trashbin where it belongs.

Comments (1) + TrackBacks (0) | Category: Laws and Regulations