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.
Boingboing's Xeni Jardin was on the Rachel Maddow show earlier this week making an interesting point. Xeni suggests we look past Wikileaks itself to the question of who owns secrets. She and guest host Chris Hayes discuss the idea that this is a transformative moment similar to the mass emergence of Napster for music sharing, or BitTorrent for movies/games/software/television.
The discussion is clearly going to continue and I have yet to figure out exactly what I think about it. I personally find it fascinating that the Obama administration is having conniptions where the UK government's response is something along the lines of "meh." There's clearly a form of power involved here that isn't involved in P2P networks that share entertainment content. Government secrets and ownership of information represent a strong form of control, but haven't we argued for years that the Copyright Wars are really control wars? Control over peoples' opinions, actions, opportunities? Maybe Xeni is right and they are of the same ilk.
In yesterday's post about the 5th Circuit decision, I noted that most other courts have not agreed with this interpretation of the DMCA. Well, that may be about to change largely due to the strenuous efforts of the EFF and its allies in pushing the US Copyright Office and the Librarian of Congress.
"jailbreaking" a cellphone - freeing a phone from being locked into a particular carrier or a specific app supplier (actually one new exemption and a renewal of an existing one).
remixing short clips from copyrighted DVDs; for example, for use in personal videos such as those people post to YouTube or educational displays in places like classrooms.
This is a big deal, and a bit of good news in the Copyright Wars and EFF is to be commended for continuing to work on restoring these rights to consumers.
I cannot resist reminding readers that the EFF is a volunteer organization supported by donations. On that press release page are links for folk who want to help out the EFF by donating directly or indirectly by buying their swag. I still have my very first EFF shirt, bought in 1990.
Over the weekend both Slashdot and Boingboing pointed to a story about GE and the DMCA. Formally, the case is known as MGE UPS Systems Inc. v. GE Consumer and Industrial Inc. What drew the blogs' attention was that in this case a 3-judge panel of the 5th circuit has ruled that using a hacked security key to get access to a work is not itself a violation of the DMCA. That's a pretty surprising outcome since it runs counter to the way the DMCA has generally been interpreted.
On the face of it, contrary interpretations of a law are usually a good reason for the Supreme Court to grant cert, reviewing the case(s) and the law on which the Circuits disagree. For that to happen, the ruling would have to be appealed to the 5th en ban and if upheld at that level could then be appealed to SCOTUS. So there's still a ways to go on that front.
The decision seems to hinge in part on a distinction between access and copying. In particular, GE claims that the dongle it cracked didn't stop copying from happening - it just blocked access. The 5th definitely agreed that GE was enjoined from copying or using illegally copied software and trade secrets; GE did not contest that the software was a copyrighted work, and the fine against it was upheld. But the Circuit panel found that the original decision for MGE was in error because it accepted too broad a meaning of "access". The key sentence highlighted in the Courthouse News report is this:
"The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing."
That's extremely significant because, as Cory noted in his post, legal access and viewing is something that one might want to do in, say, one's own home with one's own material but cannot do because of DRM locks that are applied by DVD makers, iPad software, or any number of audio-book publishers.
It will be interesting to see where this case goes. Given that the monetary damages against GE were upheld, MGE has little motive to appeal in defense of an abstract principle of law.
The SFLC, chaired by Eben Moglen, is an advocacy organization for free/open software. In this case they're arguing that the closed proprietary software of IMD - implanted medical devices - is another instance of IP can kill. They have a raft of scary statistics on product recalls of IMDs and note that although the hardware parts of these devices are regulated and tested by the FDA the brains - the software that controls the device - is not only not tested, it's not testable. It's an opaque black box that exists and is distributed, revised, and updated (or not) at the manufacturer's whim. If the manufacturer goes bankrupt or leaves the medical device field the code goes with it.
This puts patients in a place where they either have to trust these manufacturers literally with their lives, or turn down potentially life-saving treatments. SFLC argue that this is not an acceptable position and that the code as well as the hardware should be subject to review, to recall, and ideally to replacement with open source that could be inspected, debugged, and maintained by those who care the most about it.
Which is, you know, an admirable idea. And also approximately as likely as my suddenly sprouting a prehensile tail. What's far more likely is that there will be a bug, and someone - or many someones will die. There will be lengthy court proceedings - made more difficult because in 2008 the US Supreme Court (in a case known as Riegel v. Medtronic, Inc.) prohibited patients harmed by defects in FDA-approved devices from seeking damages against manufacturers in state court and also eliminated product liability lawsuits against manufacturers of approved devices. However, state suits are not the only possible avenue.
As usually happens with these things if the outcry gets big enough then Congress will feel compelled to act, but neither the courts nor Congress are big fans of open source software. The solution will probably be more FDA oversight or something along those lines. In this sense the SFLC paper does a good job of highlighting a potential danger but a poor job of sketching out how we might address such dangers.
The Copyright Clearance Center sent out a blurb announcing that they've upgraded their Rightslink tool, a set of software and services that is designed to help creators figure out what they want to license, to whom, and on what basis. There are a variety of tools that creators need if they're going to get their content out inside of a for-pay infrastructure. I'm not in the business of promoting one tool over another but I'm happy to list resources and encourage users to share their experiences.
Why? Well, it seems that Mr. Williams is at best uninformed and at worst... um, I think the word is lying about what Creative Commons does. It seems to have started with a tweet from Mike Rugnetta. He got a fund-raising missive from ASCAP and posted a picture of it.
In the letter, ASCAP asks for money to fight organizations like CC, EFF, and Public Knowledge that, it claims, are trying to undermine "our" copyrights. Oh really? This isn't the first time ASCAP has misrepresented what CC does, as Lessig points out in his response on The Huffington Post. Sadly, Lessig isn't calling for pistols at dawn (dueling is illegal in the US, if you get right down to it) and his challenge is entirely too gentle.
But it's there, and you can read it. I doubt Paul Williams will read it, and I doubt he'll respond. It's not that I think Paul Williams is right - it's that he cannot possibly win this debate and he'd be a fool to get into it. He doesn't want to hand CC or EFF or Lessig any more free publicity.
Which is where I, and I hope you dear readers, will help out. Publicity for this kind of thing is really the best response. Respond to lies by stating the truth; respond to confusion with clarity; respond to uncertainty with understanding. And just in case you get the chance? Slap Williams across the cheek with a white glove. Do it for me.
What Anderson's piece points out is that ACTA is going through this ridiculous cycle of secret negotiation followed immediately by leaked copies of the drafts. The leaked copies draw fire from all quarters and the negotiators hunker down again behind closed doors for another round, as if somehow their latest deliberations would remain behind those doors. It's not always clear who is leaking the drafts or why, but it is clear that both the parties involved in the negotiations as well as the excluded players are unhappy about it. Libertarian and pro-Copyfight bloggers are also screaming mad about the treaty's provisions and process. Cory has been dogging the story at boingboing for months.
So, what's the point here? What is so important that the US has to blackmail other countries in an effort to keep the process secret? I don't get it. The entire thing is degenerating into a farce, as Anderson highlights. So far that farce hasn't really penetrated the mainstream media but if this keeps up I can't see any way for the treaty to get approved. You would think the US had learned something from the backlash that arose against the healthcare reform legislation's secret back-room deals. Apparently not.
(In the spirit of helping out businesses trying new models I should note that ars is offering "ars premier" with "insider access" to its content, live chats with the editors and industry people it interviews, etc. I'm not yet a subscriber myself but if anyone has experience with this or similar subscriptions I'd be interested in hearing from you.)
Ray Beckerman of Recording Industry vs The People offers up a sarcastic handful of statistics in yesterday's blog post. Drawing together a bunch of numbers published by p2pnet, Beckerman points out that the RIAA has recovered about two cents for every dollar spent on lawyer fees to sue its customers. Actually the numbers are probably worse, but the point remains the same - whatever the Cartel thinks it's doing with its jihad against consumers, making money is not on the agenda.
Unless you're a Cartell lawyer, I guess.
(Aside: I apologize for misspelling Joel Tenenbaum's name in my Monday post. The error has been fixed.)
It's true that the two are often inextricably linked. Authors, for example, are famously assumed to believe things they have their characters say or advocate. And the recent mess Mel Gibson has made of himself clearly shows how creators' images affect our view of their created works.
Sanford looks briefly at the attempts by author Harlan Ellison and musician Prince to dissociate themselves from the Net. Neither of these men is J. D. Salinger but I'm reminded of Salinger's desire to cut himself off by these men's ongoing attempt to snub the Internet. Ellison is a famously cranky individual (best headline: "Harlan Ellison files lawsuit, In other news, sun rises") so it's not all that surprising he would try to tell an entire technology - not to mention social infrastructure - to F off. I used to think Prince was more hip, though.
Anderson's article discusses the similarities and key differences between this situation and the Jammie Thomas case, in which the damages were also reduced but through a different legal strategy. That case is going back around again, and you can bet the RIAA isn't going to sit still for this slap. Tenenbaum maintains he doesn't have even the reduced amount but that's not the point. The RIAA are out for their pound of flesh and will certainly appeal.
What you have there is a real musician, Lenny Kravitz, coming unexpectedly on a group of people performing his music ("Fly Away"). So what does a real musician do? He doesn't ask about if they have the right to play this music - he listens, he claps, he jams with them, sings with them, and generally delights the audience as well as the performers.
If you wanted evidence that Weidenbaum was right, here it is. This is what musicians do; this is how music is made and loved and passed on. Uptight Cartel executives take notice, please.