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 agree with Ken Fisher - the big question is what Apple thinks it's doing with this info. They may be thinking they can track the provenance of purchased tunes that "escape" but unless there's a hidden checksum somewhere I can't see how they could show that the embedded account info was genuine.
If you think the sentiment is a little oddly expressed, just wait until you watch the video. Go on, I'll be patient. It's ten minutes, but really worth your time.
The original posting of A Fair(y) Use Tale comes from the Stanford Law School's Center for Internet and Society. The creator... or should we call him collector? Professor Eric Faden of Bucknell University covers the basics of copyright law and fair use in the US, through a carefully assembled montage of snips from Disney.
Be sure to go back and read the FBI notice at the front, if you didn't get it the first time.
Microsoft is clearly conducting another of its FUD campaigns and the fact that they've gotten some name companies to go along just makes it more depressing. Don't get me wrong, I'm reasonably sure that there's a violation or twelve in open-source projects. With the state of software patents today you pretty much can't write any program without violating someone's patent on something. But as usual MSFT is blowing it out of proportion and making wild-ass claims in an attempt to scare people with real money into giving some of it - and the concurrent legitimacy - to Microsoft. This whole thing should go away, but probably won't. Considering how long and often Microsoft has been on the losing side of patent suits you'd think they'd have a little more sense about this.
I have no illusions that Gonzales has any sense, however. The man is so very clearly going down in flames over the firing scandal that anything he does now is at best a distraction. If you want to find the humor in this one, note that the draft bill requires that Homeland Security notify the RIAA. No other copyright holder - not even the MPAA - gets such special treatment. OK, pop quiz time: exactly who wrote this idiot thing? All the subtlety of a moose in snowshoes, really.
According to a comprehensive piece on Ars Technica, those decisions are now out. The Trust had to negotiate a complex maze of ownerships while balancing Cartel desires for absolute control (e.g.a proposal to eliminate downloads altogether) with clear viewer desire for un- or at least less-fettered access.
Reading Timmer's piece as well as the source BBC Trust announcement, it appears they've agreed to split the baby. Some things are not going to be available for download, some will have time-locked short use DRM, and some things will have more relaxed controls. The Trust also agreed to revisit at least some of its decisions in two years to evaluate how they're working out.
The Trust also admitted that public respondents were overwhelmingly opposed to a platform-specific DRM system, such as Windows Media. Despite that, the system remains, but with a promise to revisit the issue every six months. Clearly the Trust is aware of (and seems to be in negotiations with) platform-neutral vendors such as Real. But for now it's WMV or nothing, so WMV it is.
Kopytoff quotes Digg co-founder Kevin Rose as saying:
You'd rather see Digg go down fighting than bow down to a bigger company. [...] If we lose, then what the hell, at least we died trying."
Which is noble sentiments, don't get me wrong, but misses the point. Digg isn't creating this controversy. Nor are Digg's 'readers' saying "keep on writing about this." Digg's readers are its writers and they're saying "stop messing with my/our stuff."
There are serious challenges to these kinds of models. The line between a 'crowd' and a 'mob' is very thin and organizations with deep pocketbooks and high-priced legal staffs are certainly going to continue to weigh in.
Looked at simplistically, a song is a string of words set to music. It's quite possible to write nonsense songs or songs containing nonsense words - just ask any parent of a small child.
So if a song happened to be a series of words and not-quite-words (hush you Scrabble players, "eff" is not a normal word) then that'd still be a song, copyrightable and protected in the usual ways, right? This is sort of bad news for the Cartel, because in this case the sequence of lyrics is the sung-out version of the key used to crack HD-DVD encryption. Oops.
I was strongly reminded of the "Gallery of CSS Descramblers" that appeared in response to the legal requirements to take down the DeCSS executable code tools. The Gallery contains many versions of the De-CSS algorithm, including at least one sung.
Code that cracks HD-DVDs probably isn't redistributable. Nor are you likely to be able to publish a Web page saying "Here's the key you can write into your own code to crack HD-DVDs." But a song? Song lyrics? Good luck getting takedown orders for those.
"Oh Nine Eff Nine" is currently available on YouTube at: http://www.youtube.com/watch?v=L9HaNbsIfp0
In the past it was fashionable to assert that the Internet treats censorship as damage and routes around it. In the current era we might say that "Web 2.0 treats censorship as inspiration and creates performance around it."
Witness the attempts by the AACS Licensing Authority to keep HD-DVD and Blu-ray cracks off the net. The censors and the crackers have waged a running battle that reached something of a peak this week, when a Digg entry containing the 09 F9 crack was posted. Digg received a quick DMCA takedown notice and away went the entry.
But Digg isn't a sole-author site. Its content, like that of many Web 2.0 sites, comes from its users. Those users were inspired by this act of censorship and simply bombarded Digg with submissions containing the key sequence. According to Eric Bangeman in Ars Technica:
For a few hours, Digg's front page consisted of little more than a succession of links to the hexadecimal HD DVD key.
A good Web 2.0 site listens to its creators and Digg is no exception. Within hours the site issued a pledge that it would not kill stories or comments containing the key. I don't think it's possible to have a clearer distinction between the old (Cartel) business model and the new (Web 2) model. The old model treats customers as enemies to be censored, sued, and publicly pilloried. The new model treats customers as valuable assets, key contributors, and policy makers.
Now let's see which model wins in the marketplace, shall we?
Ars Technica is reporting that the US Copyright Board has extended by two months the date on which its new regressive (and retroactive) fee schedule is to go into effect. The new date is July 15, 2007. So maybe there is time for Congress to act. This is not a lot of time, but in theory the Internet Radio Equality Act could be passed and signed in these two months, restoring a flat-fee structure that is compatible with the non-profit segment of Web radio.
As before I urge my US readers to contact their Representatives to sponsor and push for quick passage of this bill. You non-US folks can sit back and laugh at we fools and the fools that govern us.
Readers may remember that I've pointed at PLoS, the Public Library of Science, from time to time in this blog. In an earlier life I was a scientist and a researcher, and I strongly believe that science works best when its results are freely available for wide public dissemination, use, and scrutiny. Apparently the noted science publisher John Wiley & Sons does not share this sentiment; they'd rather lock up the science and have people pay high prices to look at it -- have you seen journal subscription fees these days? Dear gods.
In this specific case, JW&S are asserting copyright in a table and graphs, not even a whole publication. This raises some questions about what constitutes fair use in scientific publication.
As reported by Dave Munger in Cognitive Daily, JW&S sent a cease-and-desist letter to a blogger compiling information about antioxidants in fruits. She had used one table and one figure, then removed them in response to the letter. They're back now in part because the blogsphere objected, but all JW&S did was grant specific permission, not admit that the category of figures is fair-use-able.
Munger delves into the issue, and comes up with the classic "it depends"; don't all questions about copyright and fair use end that way? There really don't seem to be any good guidelines on whether a figure from a journal article is a copyrightable entity in its own right (as a photograph would be) or whether it's more like an excerpt, for which there are well-known fair-use rules.
Unfortunately, his proposed solution - recreate the figure from scratch - doesn't really avoid the problem he thinks it does. A figure created in this way is pretty clearly a derivative work, since it's derived from the data and figure in the original published article. As a derivative work it's still subject to the restrictions of copyrights and the questions of fair-use exemptions still apply.
