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

a Typical Joe
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Monthly Archives

December 31, 2008

Are Resales Killing Publishing?

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Posted by Alan Wexelblat

In a column published by the NY Times this week, David Streitfeld puts forth the proposition that the highly available, highly interconnected nature of the online book reselling market is killing book publishing. New-in-print brick-and-mortar retail has been under pressure at least since Amazon started its first Web site. The economics of book publishing have also been sagging since Reagan-era tax reforms that made carrying inventory unprofitable, and the costs of paper, ink, and transport keep going up.

But I had not considered that the ease of finding a cheap used copy would have that big of an impact on publishing and book retailing. Used book search engines are easy to find, there's Ebay/, and even Amazon puts competing reseller links on the same pages as its new book listing. So with all that, why would anyone pay retail?

It's not too far from the question that the music business faced back at the end of the 90s when Napster boomed - given that you could get music for free, why buy? The record labels have spent most of the last decade struggling to come up with a version of what I call the "bottled water" solution - given that we have some of the world's highest quality tap water essentially for free, why do we pay so much for water in bottles? Somehow we've been convinced it's worth paying for, and there's no reason to think that consumers of music, or books, couldn't be similarly convinced.

Along the way I'd also like to be convinced of the original thesis of the column. The idea that book reselling is killing new book publishing is an interesting theory, but sadly it's put forth here without any supporting data.

Comments (2) + TrackBacks (0) | Category: IP Markets and Monopolies

Why Proprietary, Locked Media Are Bad

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Posted by Alan Wexelblat

Microsoft gets the faceplant this time, but it could just as easily have been iPods: Gizmodo reports (as do many other sites) that Zune 30MB models have all started locking up and requiring a hard reset.

This should be a clarion warning that using proprietary hardware or software (DRM) to restrict peoples' ability to manage their legally owned content is a bad plan. We are all at the mercy of whatever bugs and bad business plans lie behind these locks.

(I'm as guilty as anyone else, sad to say. I use iTunes for storing and organizing the files ripped from my CD collection, and have bought a couple dozen tracks through their store. I try to buy the un-DRMed versions whenever they're available, but I'm still at the mercy of the program.)

Comments (2) + TrackBacks (0) | Category: IP Markets and Monopolies

December 30, 2008

IP and Me at Arisia 2009 (Jan 16, Cambridge MA)

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Posted by Alan Wexelblat

I just got my panel schedule for Arisia 2009, one of the big local science-fiction cons. As in past years there will be panels on things of interest to fans, including intellectual property. At the moment it looks like I'll be on a panel Friday night on the "Future of Intellectual Property" that will also have Richard Stallman as a participant.

That should be interesting. The last time Stallman saw me he had some unkind words to say, but it's not entirely clear he remembers who I am.


Comments (0) + TrackBacks (0) | Category: Events

Venue Matters

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Posted by Alan Wexelblat

Where a case gets heard can be as important as what's argued in court. Two items this week are bringing this lesson home:

In the first case, the RIAA got its wrist slapped for pre-emptively trying to appeal in mid-trial. As Nate Anderson points out, you can't generally do that without the judge's permission, and in this case Judge Davis is not in a favor-granting mood.

Part of the issue is that Davis presides in the Eighth Circuit, a district where the courts have held that "actual distribution" has to occur for a copyright infringement case to proceed. Other jurisdictions have held differently, but for this case (against single mom Jammie Thomas) the RIAA has to abide by that precedent.

Meanwhile, down in Texas, blogger Zusha Elinson notes that the CAFC has issued a ruling that may make life easier for patent defendants to get cases transferred out of the Eastern District of Texas. This particular venue has been chosen by plaintiffs who see the judges there as more likely to be sympathetic, even though the District may be far from the defendants' homes.

The CAFC issued something called a writ of mandamus, a document compelling a government official to perform his duties properly. In this case, the Court took to task Eastern judge John Ward for his refusal to allow a venue transfer for Lear Corp v TS Tech. Lear had sued in the Eastern District, hoping for a favorable venue; TS Tech wanted things moved up to Ohio, which would have been more convenient for them.

Because the CAFC is a superior authority in patent cases, this writ and its supporting arguments can be used by other defendants who feel the Eastern District is too plaintiff-friendly and can bring good arguments for a change of venue. This isn't a pure "get out of jail free" card - suits will still be heard in other venues but clearly there's strong feeling that the merits of particular cases are weighted differently depending on the venue in which it's heard.

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

CBLDF Asking for Support from Creators

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Posted by Alan Wexelblat

It's that time of year, when every charitable organization and good cause is asking people for donations. Earlier this year I mentioned the Comic Book Legal Defense Fund's efforts to protect the rights of adults to view creative material, even if it is a bit edgy.

CBLDF is asking authors, retailers, and other creative types to help as well:

If you're a creator or publisher, you can also donate some of your time
to the Fund by signing for them at conventions and events, donating
signed copies of your work, or something even more creative. If you're
a retailer, why not host a CBLDF fundraiser at your store or sign up for
retail membership

Comments (0) + TrackBacks (0) | Category: Speech

December 29, 2008

Quis Custodiet Ipsos Custodes?

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Posted by Alan Wexelblat

I am what you might call an amateur comics geek. I don't subscribe to titles when they appear in issue form, but I do love my collections and graphic novels. And I'll defend to the death the proposition that Moore's Watchmen is hands-down the best graphic novel, ever.

The story is complex, multi-referential, and darkly thought-provoking. It deconstructs not just comics themselves, but the entire notion of a superhero, while reflecting on the real world darkness of the near-apocalyptic parts of the mid-1980s. It's the kind of thing that innately resists the simplifications and streamlining that come with moving comics to the movie screen.

Back in May, Neil Gaiman blogged about his "law" of comic-book movies, which is that a comic movie is better to the degree to which it hews to the look and feel of what people like about the comic. You can yank the story around a lot - comics readers get that - but if you mess with the iconic elements of the characters and setting then your movie is going to... well, suck.

So a lot of people have been anticipating the upcoming Watchmen movie with more than a little trepidation. It would be so incredibly easy to make a movie of this story that sucked, and disappoint us all. Up to now, it appears Warner may have learned something from their previous flops (Catwoman, anyone?) and their spectacular success with this year's Dark Knight. The pre-release info, and even the recent trailer, have had the look and have raised expectations, including my own.

Which brings me around to why the heck am I blogging in Copyfight about my peculiar media obsessions? Well, it looks like the film may not get released after all, and it's down to copyright issues.

Last week, an LA judge agreed with Fox that it owns copy rights in the material, and essentially cleared the way for Fox to block release of the movie in March. The rights are somewhat convoluted since it appears that what Fox owns is not the Watchmen material itself, but rights to distribute a film of that material. This stems from a deal in the late 1980s, after which Fox dropped the idea of making the movie but apparently retained certain interests.

Right now everything is very preliminary. The judge's decision came as something of a surprise, since he had originally scheduled a trial on the merits to start in January. I imagine that Warner will pursue a dual strategy of appealing this order while at the same time trying to get some kind of deal with Fox. My guess is that they'll offer Fox a slice of the pie and call it cheaper than potentially pushing back the release date.

Comments (2) + TrackBacks (0) | Category: IP Markets and Monopolies

December 19, 2008

RIAA Declares Jihad Over; ISPs to Slap Wrists (for now)

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Posted by Alan Wexelblat

Ars trumpeted the headline as "RIAAStock 08 Peace & Music" but I think that's a bit overblown. Still, it's a surprising turn of events.

After years of grinding trench warfare and tens of thousands of lawsuits, the RIAA has worked out a deal with the major ISPs to have them do the enforcement, voluntarily. ISPs will get notices and, using their own internal data, map the target IP address to a user. That user then gets a "knock it off" warning from the ISP. Penalties are coming, make no mistake, but they're not here yet. CNET posted a copy of the letter that the RIAA will send to ISPs.

Anderson's story on ars highlights the win-win in this deal. ISPs win in that they see P2P sharing as a major drain on their bandwidth. Cringely had a thing or two to say about this back in November, essentially pointing out that bandwidth costs are dropping fast and by establishing caps now - in a mode of presumed scarcity - the ISPs set themselves up to be able to charge more for raising the bandwidth caps in the future.

The RIAA wins by extracting itself from a public relations quagmire. In theory they can still go after people who ignore notices, but they're much less likely to be embarrassed trying to sue people in housing projects and suchlike. They claim they'll continue pursuing cases already underway but I am now more certain than ever that they'll just drop suits that they see as losers anyway, like the Tenebaum case. Furthermore I'll bet they'll use this agreement as an argument for getting Nesson's countersuit mooted.

Anderson notes (but doesn't point to) a supposed study by "UK media lawyers Wiggin" in the UK that purports to show that people are less likely to share files if they know they're being tracked. I went and looked at the Wiggin news articles section (presuming he means the entity known as "Wiggin LLP") and couldn't find anything to support this claim. Even if so, Wiggin is a law firm that represents the Cartel in the UK. Issuing a finding in support of their clients isn't all that surprising, but I wouldn't treat it either as news or good science.

Over on ZDNet, Sam Diaz sounds a warning note that ISPs would do well to heed: taking enforcement action based on an unsubstantiated third-party allegations could put the ISPs in the position of maintaining blacklists or even getting themselves sued by irate customers. Last year Comcast got itself sued for traffic-shaping. I can imagine many scenarios where the RIAA's mistakes could lead to ISPs having to defend themselves in front of judges.

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

December 17, 2008

Support the EFF

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Posted by Alan Wexelblat

EFF has an amusing song/cartoon riffing on the "12 Days". It's a fund-raiser, obviously, and it references several of the things Copyfight cares about.

Learn more about this video and support EFF!

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

December 15, 2008

Teach Your Kids to Break the DMCA

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Posted by Alan Wexelblat

Neil Gaiman pointed to Gever Tulley's 2007 TED talk on "5 dangerous things you should let your kids do". As a parent who wrestles almost every day with what I should and should not let my kids do I found the concept interesting.

And there, near the end of the talk, Tulley just flat out says "teach your kids to break the DMCA". Because it's a law that attempts to limit how we can interact with the things that we own. True, that. Unfortunately, TED talks are highly compressed presentations so Tulley doesn't go into any sort of detail, nor does he appear to have followed up on the idea publicly.

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

Creative Commons Turns 6 (NYC Party, Dec 16)

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Posted by Alan Wexelblat

Sorry for the last-minute-ness of this. I just got a mail saying the event has moved to a larger venue to handle the bigger than expected crowd:

Creative Commons' Birthday and Salon NYC
Come celebrate CC's 6th Birthday and our December Salon
Host: For Your Imagination / CC
Date: Tuesday, December 16, 2008
Time: 7:00pm - 10:00pm
Location: For Your Imagination Loft
Street: 22 W. 27th St., 6th Floor (between Broadway & 6th Ave.)
City/Town: New York, NY
Contact: Fred Benenson
Phone: 9178267819

(I'm told that if you are very hip, which is to say not me, you can RSVP on Facebook at )

Comments (0) + TrackBacks (0) | Category: Events

December 10, 2008

AC/DC Idiots?

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Posted by Alan Wexelblat

Opinionated Canadian blogger Scott Feschuk has a column lampooning AC/DC for striking an exclusive deal with Wal-Mart.

The aging Oz hard-rockers are hardly the first to strike this kind of deal. Given how influential big-box retailers have become in the dwindling world of physical platter sales it's not a big surprise that artists would go where the sales are. Still, the parody struck me as funny.

Comments (2) + TrackBacks (0) | Category: Humor

December 5, 2008

Rebellyon - Amanda Palmer and Roadrunner Records

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Posted by Alan Wexelblat

Amanda Palmer
We're used to understanding (maybe more than the general public does) the degree to which the modern record-making system is a slave enterprise. The artists are indentured and their work is wholly owned by the labels. The labels can promote or not, arrange tours or not, front money or not, and generally have full and complete ownership of the created product.

What we sometimes forget is that the labels also own the public image of that artist. Not just the "how do you look" but also "how do you dress on stage" and "how do you talk to the media and promote yourself". And sometimes "how fat ARE you, dear?"

The issue at the moment centers around Ms Palmer's appearance in the official video for her single "Leeds United" from her new album Who Killed Amanda Palmer? If you watch the video or have read any of the discussion about this you'll know that Ms Palmer shows a lot of bare belly in the video. And she does not have an anorexic or bodybuilder's belly. She has a pretty normal "fat little belly" - as she herself describes it. And she's mostly OK with it.

So when Roadrunner Records suggested that the video be digitally altered and that Ms Palmer engage in some choice editing to appeal to "guys" whom the label seems to think it knows... well, you can imagine THAT didn't go over well. In fact, it's grown into quite the contention, with Ms. Palmer's fans standing deep and strong behind her refusal to give in and commercialize and popularize herself.

According to the blog entry linked above, Amanda Palmer has already sunk some USD 80,000 of her own money into this album and tour, money she doesn't expect ever to recoup from the label. So when she asks the label to drop her (which is to say, free her from the constraints of her contract and the odious sexism of her current a&r guy) she has more than a little bit at risk. I'm rooting for her.

One of the interesting things about this story to me is that it's got at least two parallel threads. On the one hand, there's a significant fan response to the overt sexism and narrow-minded definition of what female performing artists' bodies should look like. Much of the fan 'rebellyon' involves Palmer's fans posting pictures of their own happily shaped bellies, often with (ahem) expressive sentiments written on them for the camera to record. Palmer herself is up front about her desire "to look HOT" (emphasis in the original)

She clearly recognizes that part of what happens in a creative performance is a level of sexuality and attraction and like in every other business, sex sells. She just wants to be in (more) control of what that sexuality means in her own performances.

On the other hand, there's a discussion to be had about the degree to which creative performers are forced to give up either financial incentives or creative control. For example, Emma Bull's blog has a nice compare-and-contrast of Palmer's situation with that of the artist Issa (formerly Jane Siberry) who is trying to make a go of it on her own, offering her new album for download at whatever rates the downloaders want to pay. Bull is herself both a published writer and a musician with released CDs, so she has something of a first-hand perspective on the situation.

Full disclosure: I've never met Ms. Palmer nor do I have much of an opinion on her artistry or her physical appearance. However, friends of mine performed with her and are pretty opinionated on the matter. You can see them doing the horn part for her "Leeds United" performance at the Paradise club in Cambridge, MA.

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

December 2, 2008

Continuing on the Morality Theme

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Posted by Alan Wexelblat

Neil Gaiman has a long, and cogent discussion in his blog today about the Christopher Handley case.

I generally agree with what Gaiman has written. I think popular speech doesn't need defending. It's the edgy, unpopular, icky stuff that needs defending because that's what people will attack. And although Copyfight is not a free speech blog I do passionately believe that much great art is created out on those icky unpopular edges and if we do not defend the rights of people to be patrons of that art then we strip away a lot of what is of value in protecting the intellectual property of creative expression.

Comments (0) + TrackBacks (0) | Category: Speech