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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

June 29, 2009

Proof That Even Very Smart People Can Say Very Stupid Things

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Posted by Alan Wexelblat

Richard Posner
Generally I have a lot of respect for Richard Posner. The word "brilliant" gets thrown around casually a lot, but I really do think Posner verges on brilliance. You don't get 40 books published by writing nonsense or wasting readers' time. Let's settle for saying he's a very smart, very widely influential judge.

He also blogs, with Gary Becker at the eponymous "Becker-Posner Blog". There, earlier this month, Posner put up a piece that was nominally on the future of newspapers.

The problems with newspapers are nothing new; what's new (and excuse my impertinence WRONG) here is one of the remedies Judge Posner suggests. After a long discussion of the costs and economics of newspaper publication, here's his final sentence:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

No. Just no. Linking is the fundamental technology of all hypertexts, of which the World Wide Web is by far the biggest and most popular. One of the reasons it is so large and so widely used is the ease with which information can be accessed, transferred, exercised, repurposed, and reused. The fact that this fundamental technology is in conflict with the page-centric advertisement+content revenue model is an indication that the ad model is flawed, not that we should erect further legal barricades to try and cripple the very thing the Web does best.

To be very clear, I have a large personal stake in this game. Copyfight, like so many other blogs, is built around the notion of taking things said elsewhere, pointing to them, and building on them. Since all writing in the US is born copyrighted, there would be a large blow to almost every blog if this kind of restriction were passed. It is a stupid idea.

The fact that it was put in as a final sentence in the blog posting makes me think Judge Posner hasn't really thought this one through. The comments in the blog are neither edited nor responded to, sadly, since several of the non-spam commenters take Posner to task over this nonsense.

Comments (3) + TrackBacks (0) | Category: Big Thoughts

June 21, 2009

A Win Too Far?

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Posted by Alan Wexelblat

Almost everyone, including the Cartel's own lawyers, appears publicly shocked by the USD 2 million verdict returned against a Minnesota mother whose fight against the RIAA has been something of a rallying point in the war the labels have waged on their customers.

The Jammie Thomas retrial was expected (at least by people on the reasonable side of the fence) to produce some kind of verdict that would indicate the general public's (as represented by the jury) disdain for asking someone to pay $222,000 for sharing 24 songs. To be fair, she probably wasn't the one who shared the songs, but they were shared from her computer. So she's held responsible. And now, facing a $1.9 million judgment, she's in an even worse position. Clearly the jury of her peers didn't share the common online opinion, which lends credence to the Cartel's claims that the general public support their position. As the Cartel's lawyers have noted, they did not ask for a specific penalty in their suit - it was the jury that came up with the damages number.

The question becomes: what happens now? Opinion in the blogosphere is still widely against the RIAA, up to and including artists such as Moby calling for "disbanding" the organization. Moby — who just released his latest album as an entirely self-made project, including free tracks and his own DJ remixes — is clearly speaking from an emotional center.

More legal-oriented opinions include the view that the damage award, and the copyright laws that underlie it, could be unconstitutional. The US Constitution has language against grossly excessive punishments including monetary damages. In addition, as Fred von Lohmann points out, the Supreme Court has issued some recent rulings indicating that it may find the practice of awarding large punitive damages as deterrents to be unconstitutional. These decisions may have played a part in the Cartel's decision to shift focus away from suing customers and onto turning ISPs into copyright cops.

Another widely discussed theory, discussed in depth by Greg Sandoval for CNET, is that Jammie Thomas could protect herself from any payment by filing for bankruptcy. This theory rests on a recent Ninth Circuit decision that held there are different standards for civil and bankruptcy cases. In a civil case, such as this one, the standard for finding against the defendant is that the act had to be "willful" - essentially the RIAA have shown that the file-sharing was not an accident. However, in bankruptcy court they would be required to show that the act was "willful and malicious" in order to prevent the debt from being wiped away.

My opinion is that they'll settle for some token amount. I can't imagine either side wanting this fight drawn out further in the courts or in the press. They are, as several pundits have pointed out, fighting about the past. And I'm guessing both sides would much rather put that past behind them.

Comments (4) + TrackBacks (0) | Category: IP Abuse

June 11, 2009

Eh, Mebbe Not

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Posted by Alan Wexelblat

The highest legal review body in France, the Constitutional Council, has said "non" to legislation trumpeted by the Cartel that would have allowed cutting off Internet access of people accused of copyright violations.

The French constitution contains clauses promoting a presumption of innocence and the Council determined that the legislation - which had already passed in Parliament (WAKE UP YOU GUYS YOU'RE BEING OWNED) - violated those clauses as well as infringing on French Constitutional guarantees of free speech.

The legislation already had to be revised once but passed on a second go. Now it's unclear whether the plan will be scrapped or whether Sarkozy will modify the law as the Council described and resubmit it.

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

June 10, 2009

A Style Mash-Up

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Posted by Alan Wexelblat

What would you get if you took the 19th-century notion of a penny dreadful and updated it for the 21st-century iPhone? The makers of Steampunk Tales think they have an answer.

Steampunk is a pop-culture phenomenon this decade. There are books, music, and cons devoted to this movement. Since it has many roots in updated Victorian-era items it seems like fertile ground for bringing out something people from that time would have recognized as a novel, but updated to modern technological sensibilities.

Steampunk Tales is also drawing from the pulp-fiction publishing form that flourished in America in the mid-20th century. Pulp magazines back then focused on specialized audiences (westerns, horror, romance, detective stories, and science fiction were all popular pulp genres) and delivered a monthly dose of short fictions from a wide variety of authors.

In this case they're promising to deliver monthly story collections for a modest USD 2 price tag, much lower than the magazine-stand prices for the few specialty mags that survive to this day. Back in March of this year I noted that the economics of print paper distribution are horrible and getting worse, compared to e-book economics. The iPod is probably not an idea e-book platform, but it's much more widely available than even the popular Kindle and for reading short fiction it may serve well enough.

One of the things that steampunk celebrates is the "maker" culture (see for example Make Magazine) and in that spirit I celebrate Steampunk Tales' attempt to make a cross-century mash-up work. (Too bad I don't own an iPhone to read it myself.)

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

June 9, 2009

And Now A Pirate MEP

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Posted by Alan Wexelblat

Christan Engstrom, Pirate Party candidate
In addition to Vikings, reindeer, and cute blonde girls, Sweden can now say it has a Pirate member of the European Parliament. According to Veronica Ek's story for Reuters (here reprinted by the Globe and Mail) about seven percent of the Swedish electorate cast ballots that sent a member of the Pirate Party into office.

The party has been in existence for some time, largely known as a single-issue copyright deregulation group. However, the recent conviction of four operators of The Pirate Bay torrent-linking site has drawn attention to the party and its platform, though the site and the party are not linked. That platform calls for copyright deregulation, abolition of the patent system, and a reduction in Internet surveillance.

For whatever reason, the surge in popularity has, according to Wikipedia, moved the Party into the third most popular spot in Sweden in terms of registered membership. Engstrom, the likely seat-holder, claims that the party will use its seat to fight for intellectual property rights and personal privacy rights.

Comments (2) + TrackBacks (0) | Category: Laws and Regulations

June 1, 2009

IAF Goes For The Sponsors

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Posted by Alan Wexelblat

The Interstitial Arts Foundation (IAF), whose event I mentioned a couple weeks ago, is putting together a new volume of fiction writing.

The book, currently called Interfictions 2 is a follow-on to their successful publication in 2007 of a work of collected short fictions that exist between the large spaces of current mass-market genre definitions.

In the blog entry introducing the book, they break down the costs line by line and ask for sponsorship. You can sponsor an individual story, cover the online costs for the electronic companion to the printed stories, or cover the expenses associated with the production of the physical work itself (printing, typesetting, etc.). You can even cover the costs associated with sending out review copies. Since the IAF is set up as a US 501(c)3 organization your contribution is entirely tax deductible.

As I've discussed before, I don't think the sponsorship (or more elegantly 'patron of the arts') model is widely scalable. It's not going to replace mass market publication anytime soon. However, it seems pretty well suited to this kind of thing - a specific project, with a strongly dedicated audience. So go sponsor something already!

(I think I'll sponsor sending out review copies because I believe that publicity creates a virtuous circle. Thus this blog.)

Comments (2) + TrackBacks (0) | Category: IP Use