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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?

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Monthly Archives

August 29, 2007

August 28, 2007

Fair Use "Has Gone Missing"?

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Posted by Alan Wexelblat

Fair use hasn't gone missing. It got jumped, dragged into a dark alley and curb-stomped until it bled nearly to death. At the moment it's on life support.

I appreciate what Maura Corbett is trying to say. The excesses perpetrated against fair use are numerous and egregious. I just prefer more accurate and more colorful analogies.

The topic at hand right now is a formal complaint filed by The Computer & Communications Industry Association against several professional sports organizations and NBC/Universal, with the FTC. The complaint points out these organizations and others have used the standard copyright notices on DVDs, on sports broadcasts, and in other places not to inform but to intimidate and mislead. I'm shocked; how about you?

Why the FTC and not the FCC, which nominally has responsibility for communication rules? Well, the complaint is an allegation of deception and misleading consumers, which is more the FTC's bailiwick. FTC regulations prohibit "unfair or deceptive practices in commerce" and in the past the agency has acted against advertisers or other commercial speakers who have been found to be putting out misleading information. So it's not wholly farfetched to hope they'd act, but it certainly is a long shot.

CCIA has created a new organization called Defend Fair Use to fight "[t]hreats and exaggerations that misrepresent your rights." This complaint appears to be their first action.

Which brings us back around again to Ms. Corbett's politely worded "Perspective" piece. I can't complain about the arrival of another copyfighter, but let's call a spade a spade. When "the NFL threaten[s] the media by withholding press credentials for any organization that showed more than 45 seconds of a game" - that's not fair use gone missing. That's premeditated murder.

Comments (1) + TrackBacks (0) | Category: IP Markets and Monopolies

August 27, 2007

August 24, 2007

Is Private DRM Public Failure?

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Posted by Alan Wexelblat

Problem: you bought content locked in a DRM box but the entity that sold it to you went out of business. You now have the electronic equivalent of a paperweight.

DRM is usually sold in packages by very large companies that tend not to go out of business, like Sony, or Microsoft, or Google. And yet, though Google remains in business, customers who bought its DRM-encumbered movies are now being left high and dry as the company closes its Google Video Store.

Let's leave aside the issue of Google's gaffe and the irate customers that prompted an apology and improved compensation offer. I want to address a point repeatedly raised by copyfighters (see for example, Ken Fisher on ars): that these failures are an argument against DRM-based business models.

There's a good point to be made here - peoples' legal content purchases ought not to be effectively yanked out of their homes just because a corporation goes belly-up or "exits the business." But this is remarkably like what happens when you purchase a physical good whose manufacturer ceases operation or discontinues the line. Parts and services become increasingly hard to get and the value of your purchase tends to go down steeply (antique and collector value notwithstanding). You can't buy leaded gasoline generally in the US anymore - if that's what it takes to power your car you are likely out of luck.

Furthermore, it seems to me that the issue here is not simply "DRM bad", however much I take that as an article of faith. The issue is that private holding of DRM keys and controls is potentially risky for consumers. There are other structures that could be set up to mitigate these risks. For example, a non-profit or quasi-governmental organization could become the repository for the keys and codes needed to keep locked content viable. Imagine a kind of Wayback Machine for DRM, if you will. Or a CERT for content keys. There might be a legal mandate to turn over the necessary data to such an organization as part of the shutting down process; or companies might do so voluntarily to avoid the kind of shame and opprobrium that Google got.

Part of any good model should be end-of-life planning. That we haven't done this for DRM-encumbered content is a flaw in our own planning, not necessarily a declaration that such planning is impossible.

Comments (8) + TrackBacks (0) | Category: Big Thoughts

Why Watermark? To Target Ads

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Posted by Alan Wexelblat

Why watermark files in a non-DRM way? Possibly because you can build an ad-supported business model around the data watermarks return to you.

This interesting claim was put forward earlier this month by John McBride on ars technica. He points to a deal between Microsoft and Activated Content Corp. to license some of MSFT's non-secure embedded data technology inside music files. These data can identify what the song is and may even be able to trace its history.

So where's the ad opportunity? For person-to-person sharing there's an obvious "people who like A also liked B" scheme. If you share my musical tastes perhaps you'll also share my interests in movies, cars, fast food, etc.

For situations in which a tune is released by or through a commercial outlet the opportunities are more direct. If I show up with a copy of a song that was given to fans via something like a newspaper give-away, then perhaps that newspaper's competitors would like to entice me to switch? Or a tune offered as a free cell-phone download would give you a good clue as to which cell provider has my plan, with the possibility to market additional or competing cell services.

Would something like this work? Probably. Like any other marketing campaign it'd hit some wrong people and some right people and be sold and judged based on its success rate. I can't say that this is precisely what Activated Content has in mind, but I agree with McBride that this kind of thing is definitely coming.

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

August 21, 2007

Apple's Patent App and More on the Sad State

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Posted by Alan Wexelblat

Last week I commented on the sad state of patent effects on interface design work. Commenters to that entry pointed out that concerns over treble damages for willful infringement, concerns over having employees deposed in patent investigations, and the potential costs of infringement defenses all make it perfectly sensible for companies to shut people up in boxes of ignorance so there's no chance they might be exposed to patent information.

I seem to recall that the original purpose of patents, as written into the US Constitution, was to promote the progress of science. If someone can explain to me how forcing people to be ignorant of what's going on in their field of work promotes progress I'd be grateful. Because to me this is just exactly the opposite of the effects we ought to be getting. Paul Sherman, another professional in the user experience (UX) field, has a combination history and rant on his blog, talking about what this means for those of us who work particularly on the visible portions of software - the interfaces and interactions people have with them.

Now, because I don't particularly care for being shut up in an intellectual blank box, I want to talk about United States Patent Application 20070177803, Apple's Multi-Touch Gesture Dictionary patent application. If you don't want to read the full application, MacNN has a very good summary of many of the main claims and drawings.

Engadget, among others, has a snippy view of the application, claiming that Apple's motivation is to "own" this form of keyboard-less interaction with devices. In particular this patent appears not to be about a specific dictionary or language - which are generally regarded as unpatentable - but rather about software and methods for using a large gesture dictionary and allowing meanings to be assigned in context-sensitive ways to different gestures in the dictionary. The application is laden with phrases like "for example" and "in one embodiment" that seem to be attempting to separate the methods claimed in the patent from any particular implementation.

In addition, the patent application incorporates by reference eight other granted patents or applications in process. This particular application has garnered some attention but it doesn't seem to be unique - it seems to be part of a process of Apple generating IP in this area. As with many of these things, there's a large bucket of prior art and it's not clear what, if any, of that art will be considered relevant. To my knowledge, nobody has yet tried implementing what I would call a gesture dictionary service that can be drawn on by multiple applications; all the implementations I know of embed the gestural language directly.

So in summary, I think some of the people up in arms would do well to read the application carefully and not treat this one application as anything hugely different from what has been going on in the industry for at least the last 15 years.

(Full disclosure: I did my Master's Thesis some years ago in the area of coverbal natural gesture, and studied a bit about gesture languages at that time.)

Comments (0) + TrackBacks (0) | Category: Big Thoughts

Universal to 'Watermark' non-DRMed MP3

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Posted by Alan Wexelblat

According to Eliot Van Buskirk on WIRED's Listening Post blog, the MP3s that Universal Music started selling this month without DRM encumbrances will contain watermarks. The data in the watermark is per-song, unlike Apple's per-user identifying metadata. Also unlike Apple, the watermark will be embeded in the tune itself, not attached via additional data.

Wile Van Buskirk is quick to assure readers that the watermarks aren't personally identifying, the more relevant question is "so what?" It's unclear to me what Universal hopes to accomplish here. Statistical sampling of songs found on P2P networks and sharing sites might give some indication of whether more of those copies are coming from MP3 purchases or ripped CDs. But, as Eric Bangeman points out, there's a big unknown here, which is the course of propagation. If I sample 100 copies of a shared song and find that 90 of them have no watermark I can't thereby assume that 90% of shared music is coming from CDs. It's possible that all 90 of those copies were from one uploader who happened to have good bandwidth that day and so most people who asked for that song got a copy from him. Without a good chain of custody you can't say much about what a per-song watermark reveals.

Of course, simple numerical logic never dissuaded the Cartel from doing whatever it had its collective mind set on. Universal may have already decided to use this test as a way to make a case against DRM-free music and the actual numbers will be made to show whatever the pre-conclusion is. I guess we'll wait and see.

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

August 17, 2007

August 15, 2007

How Hollywood Closed The "Analog Hole"

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Posted by Alan Wexelblat

Never let it be said that the Cartel are stupid or don't learn. Hollywood looked at the history of CDs and first-generation DVDs and said "never again." Then they designed a system, called AACS, that would be embedded in every next-generation DVD and DVD player. The AACS requirements are strict and technical and were written by people who know a good deal about digital device architecture.

Ken Fisher has a thorough analysis of the problems that AACS DRM pose. He kicks off from Peter Gutmann's USENIX presentation, but goes much deeper. Gutman analyzed Windows Vista; Fisher contends that blaming Microsoft is beside the point. Apple will be doing precisely the same thing soon and next-generation DVDs will never play on Linux machines. Why? AACS.

Hollywood has locked up its content behind a technology and a set of extensive implementation requirements, then presented the world with a choice: do it our way and fuck fair use, or be denied access to all our movies now and forever into the future. This level of play-our-way-or-not-at-all makes SoundExchange's little blackmail venture seem downright homey by contrast.

The problems Fisher notes with this setup are in two categories: one is that implementing to the AACS standard consumes resources that commercial OSes should better spend elsewhere. In effect, the implementing company (whether it's Microsoft or Apple) is not free to allocate its development dollars in the way that maximizes things like OS security, customer satisfaction, or time-to-market. At least insofar as these conventional business goals conflict with the AACS requirements, good business loses.

Second, even once it's done it doesn't work. AACS is already cracked. As a secret standard developed by commercial self-interests, AACS was never subjected to the rigorous public peer review that validates important properties like integrity and trustworthiness. See Bruce Schneier's CRYPTO-GRAM list for extensive discussions of these issues. So billions of dollars are wasted on forced deployment of a broken system that benefits a tiny minority, costs the vast majority more money, and does little or nothing to stem illegal copying.

It's not clear to me is where we go from here. In under a year we'll have Macs and Vistas playing next-gen DVDs. All new movies will come out on those disks - first probably in sual issue but soon exclusively on whichever of Blu-ray or HD-DVD wins. Consumers will be forced to upgrade their players if they want to play the new disks and maybe have to re-buy their first-generation DVDs (anyone remember re-buying LPs as CDs the first time around?) But AACS will still be cracked, movies will still appear on sharing networks, and illegal players will be written for Linux and other OSes as needed. What will the Cartel's response be? I have no idea.

Comments (3) + TrackBacks (0) | Category: IP Markets and Monopolies

August 14, 2007

ATT to Pearl Jam: oops (not sorry)

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Posted by Alan Wexelblat

Justin Jouvenal and Jenny Toomey of FMC pointed me to the Pearl Jam Lollapalooza webcast tiff. What appears to have happened is that some overzealous minion at ATT, the sponsor and caster of the band's show, chopped out (that'd be "censored" I believe) some impromptu lyrics with political content. Shocking, I know, for a rock band to be making a political statement.

Pearl Jam have a long entry on the issue at their blog, saying that ATT admitted making the cuts was a mistake. The band go on to raise the concerns echoed by FMC about corporate control over the Web and the failures of self-regulation. To the point - who holds ATT accountable for errors of this sort or who challenges the contention that they are errors and not deliberate acts of corporate censorship? Well, unless we have strong net neutrality laws the answer is going to continue to be "nobody."

I'm not terribly happy with that answer.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

August 13, 2007

The Sad State of Patent Effects

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Posted by Alan Wexelblat

I get paid for being a usability expert, human factors and interaction designer. As part of that I read some email lists on which people in my field talk about things like work, design, and so forth. On one such list a discussion arose of Apple's recent patent application related to its touch interfaces ("Multi-Touch Gesture Dictionary", Application 20070177803).

Sadly, several people immediately raised an objection to discussing the patent, its claims, and so forth. Why? Because some list members work at companies that forbid them to access patents, issued or otherwise. Never mind that this information is in the public domain for a reason, the legal 'eagles' at these companies are actively working to block the line employees - designers, coders, etc.- from being exposed to this information.

Presumably the excuse is some kind of plausible deniability, but that's absurd. A product either infringes or does not infringe on the basis of its methods and operations when compared with the claims in the relevant patent. The knowledge of existing patents that the product's makers had or lacked isn't relevant to the question of whether or not an infringement occurred.

Perhaps there's a confusion between patents (public) and trade secrets (not public). Obviously one is not supposed to dissect a competitor's product in order to determine how it works and copy that. Patent law requires very specific disclosures and in theory a person skilled in the art is supposed to be able to reproduce the device or method claimed in the patent. Never mind that mere mortals can't make head or tail of what actual patent claims language says - we're talking theory here.

I suspect what's going on with these colleagues of mine and their employers is either gross incompetence on the part of the legal departments drawing up these policies, or overzealousness of implementation of policies that may not be as stupid as they seem when put in practice.

One alternative theory is that the extreme litigiousness around patents in the design and software business, and the headlong rush to patent everything, have created such an atmosphere of fear and uncertainty that companies are just calculating that ignorance is the smaller risk. That's terribly terribly sad, if true. Whether we like or dislike the current use of patents in the software world (I dislike the practice and am neutral on the theory) I can't see any possible way in which large-scale corporate-enforced ignorance can make things better.

Comments (4) + TrackBacks (0) | Category: Big Thoughts

David v. Goliath, or Cowboys vs. Cartel

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Posted by Alan Wexelblat

The Cartel's jihad against its customers continues onward. It would appear that most defendants just pony up settlement money. However, a group of Oklahoma State University students have decided to fight and they're pulling out their own expert witness to do so.

According to the "Recording Industry vs The People" blog, the Cartel are attempting to shake loose the names and addresses of 11 OSU students who are the target of John Doe subpoenas. The students, in moving to quash the subpoenas, have hired their own expert witness who is picking apart the RIAA's expert testimony.

Security expert Jayson Street's declaration (here online as a PDF) doesn't contain much that's novel to computer-experienced people. But he does appear to be trying to educate the judge on the technical uncertainties of things like mapping IP addresses to individual people. This is a key claim in the Cartel's subpoenas and they're routinely given names on the basis of what Street calls errors of fact.

Even if the judge is willing to accept that assertion he may still allow the subpoenas to go through. After all, the defendants might still raise this objection at trial, should they choose to fight it. Realistically, though, the cost of such a fight far exceeds the cost of simply paying up and the rewards are dubious even if you're willing to go to the lengths Tanya Andersen has gone to, counter-suing for malicious prosecution. The hope is that the Cartel get blocked from using this tactic entirely.

Comments (5) + TrackBacks (0) | Category: Interesting People

Microsoft Wins Two in Patent Cases

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Posted by Alan Wexelblat

The first one is probably good news for all digital-music listeners, as it concerns patents on MP3 compression technology. Judge Rudi Brewster threw out a jury verdict and the associated USD 1.5 billion award against Microsoft. The loser here is Alcatel-Lucent, the plaintiff, who claimed that Microsoft had violated its patents; Microsoft claimed it had licensed the patents. Alcatel-Lucent plan to appeal; the judge plans to order a new trial on the second disputed patent. According to Eric Bangeman's note on ars technica, had the award stood the plaintiffs might have had a case to go against basically anyone else who makes a digital audio player.

Meanwhile, in the "not with a bang, but a whimper" department, Microsoft asked for a 30-day postponement in the start of trial proceedings in its long-running dispute with Eolas. As you may recall, Eolas sued nearly eight years ago on the basis of a 1998 patent it claimed covered browser plug-in technology. Fast-forward to 2003 when - contrary to the incessant Internet punditry about obviousness and prior art - the verdict came down about half a billion against Microsoft. Oops.

Much hue and cry ensues about the end of the Web, Tim Berners-Lee gets involved, and an appeal is made to the USPTO for re-examination. After some provisional invalidations, and much to my surprise, the final ruling held that the patent was valid. SCOTUS refused to take the case and it proceeded to grind toward trial.

Of course technology doesn't stand still - IE6 came out and used a different plug-in technology than the ActiveX controls Eolas claimed were infringing. Microsoft has also been fighting this on the legal front, including instituting a separate challenge to ownership of the patent. Based on the US's first-to-invent patent standard, different from other countries' first-to-file standard, it may be possible for Microsoft to show it invented the technology covered in the Eolas patent in which case it would be given ownership of the patent.

Or they could just settle, like I said they would back in 2004. What concerns me is not that settlement but what will follow and whether this patent will be wielded against other browser manufacturers. Props again to Eric Bangeman, whose link-rich summary on ars technica helped remind me of the timeline in this case.

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

Judge Rules on Ownership of Unix IP

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Posted by Alan Wexelblat

There have already been many thousands of words written about this and will likely be many more. Heck I might even write a few myself. But sometimes a picture captures it better. Well done, Iliad:

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

August 9, 2007

Don't Mess with My Negotiations... Pretty Please?

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Posted by Alan Wexelblat

Remember when I commented that I expected to hear from Markey on the SoundExchange-Webcaster royalty negotiations? Well, he doesn't appear to be issuing official statements right now, but the two senators who introduced the Internet Radio Equality Act have had some words on the matter.

Specifically, Senators Brownback and Wyden said

[W]e will not allow the minimum fee issue to be used to force an agreement that mandates DRM technology and fails to respect the established principles of fair use and consumer rights.

Laudable sentiments, though it's unclear to me how exactly they plan to not allow such a thing.

In particular, WIRED's Eliot Van Buskirk is reporting that Brownback and Wyden's bill is effectively dead in the House. Even if it passed the Senate, the lack of companion House support would make the issue moot. This means SoundExchange is effectively free to do as it pleases, which may be why negotiations are dragging on. There's no incentive to settle, nor to give up the prize of killing off small independent Web radio, which has this annoying habit of playing non-Cartel music on over half its streams (see Eric Bangeman's piece last month on ars technica reporting on data from Live365).

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

Blockbuster Buys Movielink

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Posted by Alan Wexelblat

Blockbuster has been moving aggressively the past year or so to combat the rise of Netflix and that potential threat to its retail business. Physical stores have loosened rental terms and lowered prices, Blockbuster has created its own mail-oriented rental service (called "Total Access") and now is moving to get a foothold in the nascent legal movie-download industry.

Blockbuster has been courting Movielink for at least most of 2007 but couldn't come to terms earlier. Current plans seem to be to continue to operate Movielink as a separately branded subsidiary but that won't last. Blockbuster has to integrate its offerings to maximize customer convenience in part because that's what Netflix bases its service around and in part because other competitors aren't going to sit still.

According to the AP story - here on - Netflix remains larger in absolute terms, but Blockbuster is growing faster. At this point I think the market for home movies is far from tapped out and both players should grow significantly, as well as seeing stiff competition from new entrants.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

AC/DC Snubs iTunes, Makes Life Difficult for Fans

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Posted by Alan Wexelblat

There are a few bands whose music is famously not available through iTunes. One of those, the headbanging legends AC/DC, has decided to do an exclusive deal with Verizon's online music store.

In writing about this deal for PC World, Tom Spring at first seems to want to make this out as a big deal, saying that "Record labels and artists are starting to stand up to Steve Jobs and iTunes". No, sorry. Smart musicians and labels do not cut off their noses to spite their faces. iTunes is the place to sell music right now and if you're not there you're not selling as much as you could if you were. Spring himself notes that Verizon isn't selling singles or user-created mixes. If you want this music you have to buy whole CDs and by the way you have to pay two bucks more than you'd have to pay to buy the same CD from Amazon.

And this is hurting iTunes exactly... how? Not at all, really. By the end of his blog entry Spring is back to pointing out that Apple is doing one thing well: making it easy for consumers to buy downloaded music. Labels may chafe at the fixed song pricepoint and certainly would rather have the whole thing locked up in tighter DRM chains, but for now iTunes represents the best legal deal for consumers buying big-label music.

Comments (12) + TrackBacks (0) | Category: IP Markets and Monopolies

August 2, 2007

Sword Patents Get No Injunction

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Posted by Alan Wexelblat

Earlier this week, Judge Jerome Friedman - who is presiding over the eBay v. MercExchange patent litigation - denied an injunction that would have restricted eBay from using the feature purportedly covered by the patent. Although he didn't give eBay everything it wanted, he had some harsh words for MercExchange:

MercExchange has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market share, reputation, good will, or name recognition, as MercExchange appears to possess none of these.

The difference between using a patent as a sword (to stop someone from doing something) versus as a shield (to protect something you're doing yourself) is often glossed over in discussion of the value of patents. In my opinion it's a fundamental distinction and I'm glad to see it getting recognition.

Over on art technica, Eric Bangeman has a nice writeup including a bit of the back-history (this case goes back over 10 years) and some other choice and cutting verbiage from the judge directed against MercExchange and how it has behaved in this case.

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