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.
Unless the BSA gets its act together and replaces overstated and misconstrued data with properly researched and carefully presented facts, it will become known as an arrogant organ of propaganda. There is no doubt that it is correct when it calls organised software piracy a major problem for the industry, but it would do well to remember the story of the boy who cried wolf.
The BSA's latest study claims to prove that software patents are of equal importance to SMEs and large companies, a claim that political parties and some media organisations have taken at face value. But does the study really show that SMEs are of equal importance, or has the BSA presented the facts in a misleading way to lead people to the conclusions they want them to draw?
At the beginning of this week, we learned that a Broadcast Flag amendment might slip past the gates in an appropriations bill. It's easy to see how this could happen. Despite strong opposition to the flag in the Internet community, in many circles it's still considered "non-controversial."
By 6 p.m. on Tuesday, the 27 members of the Senate Appropriations Committee received more than 11,000 emails and faxes. That's nearly 500 faxes an hour. Dianne Feinstein alone received more than 2,600 messages in her inbox. Kay Hutchison, the senior senator for Texas, received 1,441 letters. [emphasis, links in original]
However, it ain't over til it's over. Read the whole thing ... and if you haven't already, TAKE ACTION.
Scrivener's Error has an interesting (and harsh) critique of Stallman's essay (Time is of the Essence). Petit of Scrivener's Error focuses on the limited term of patent. He's right about that, but I imagine that a patent on literary works would have a tremendous effect on the market nevertheless. I suspect we would be looking at much more consolidation among publishers, for example. And a market that is much more expensive to enter.
One might think that open access to high resolution 3D scans of Michelangelo's David and other cultural heritage works would be a goal of the works' trustees. Nope. They're busy figuring out how to keep people from "pirating" the data.
SIR Your article on software piracy was extreme, misleading and irresponsible ("BSA or just BS?", May 21st). The headline was particularly offensive. The implication that an industry would purposely inflate the rate of piracy and its impact to suit its political aims is ridiculous. The problem is real and needs no exaggeration.
Well, that shows The Economist, doesn't it? They better back off on their analysis or the BSA might respond with another empty denial.
Prof. Michael Madison brings our attention to a case in which a stage production of Grease was halted by the rights organization because the female cast was going to play female students in an all-girls school putting on a performance of Grease. Got that? Theatre Follies. So, instead, they will be performing Grease and Desist,
the "gleefully, bad ass, unauthorized, '50's rock musical cabaret" that claims "If the creators of South Park and Charles Ludlum had met late one evening in a dark, smokey bar, done shots of jagermeister and danced -- THIS IS THE LOVE CHILD THEY WOULD HAVE HAD."
LIS News has a report of increasing shrinkwrap licenses being included with reference books (Books with Licensing Contract on Shrink Wrap). The publisher probably figures some court is likely to uphold the license at some point in the future and then things will be golden.
Prof. Michael Madison and I have been discussing what distinctions, if any, there are between works that are licensed and works that are sold as "restricted use". For example, a CD that only the buyer is permitted to play. The discussion includes guest commentary from Ed Felten and a digression into Creative Commons licensing.
Not sure who is behind it, but someone is promoting "Fair Use Day" on July 11th.
We think fair use should have it's own "Day", a day to celebrate Fair Use in any lawful way you wish. Exercise your fair use rights or contact a corporation or government of your choosing and let them know you want fair use rights and you want them protected - demand your fair use rights! Use what ever means you have available: phone, email, smoke signals, snail-mail, etc.
There really isn't that much information on the site and they've adopted the unfortunate acronym "FUD." via BoingBoing
Eisenhower warned of the need to guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. More than a few DemocratsIm onecould appreciate the Eisenhowers principles and perspicacity here. Ike saw a need for the military but did not want it to dominate American life. Eisenhower was seeking a middle ground by the standards of the time, and I wonder how he would have felt today about a different complexthe Entertainment-Copyright Complex.
Several members indicated they'd seek a broadcast flag in any final DTV transition bill, including Reps. Jay Inslee (D-Wash.), Edolphus Towns (D-N.Y.), Elliot Engel (D-N.Y.) and Marsha Blackburn (R-Tenn.). No one actually came out against the flag. [emphasis added]
There is a lot of talk about the subsidy, but who cares? Subsidies will only matter for a couple of years, the changes the Broadcast Flag will implement will last essentially forever. Doesn't any of these representatives realize what a major change they would be making in our technology/innovation environment?
Rep. Elliot Engel, (D-N.Y.): "This is really a budget bill, not a telecom policy bill."
If you add the Broadcast Flag, it becomes a copyright/innovation/technology policy bill.
Now is not the time to give up on the Broadcast Flag! We need to explain to these Congressmembers that people aren't going to appreciate the change to DTV when they can't record a video for a friend who is out of town, or take copies of the kid's favorite shows to Grandma's when she babysits.
Let's be clear. Al Qaeda and the forces supporting them are Luddites. They aim to take their part of the world back to the Middle Ages. And they aim to take us down to the Middle Ages with them.
The Internet is the greatest weapon we have against tyranny in all its forms, especially this form. Any move against it is a move on behalf of the enemy.
So where do we go from here? I believe that if we don't move toward compromise on copyright we're pulling our own virtual Twin Towers down over our own heads, just to keep the enemy from doing it first.
The Baltimore Sun reports that the copyright holders of Big River, which is based on Mark Twain's The Adventures of Huckleberry Finn, denied permission to C-SPAN to air a performance of a song from that play by high school students on a show that celebrated high school theatre (Racial Roles Bar Students from Show). The reason given by the copyright holder is that the role of Huck was played by an African-American student and the tole of the slave, Jim, was played by a white student.
Apparently, Mark Twain's great commentary on race relations in America could not be sullied by further commentary through cross casting.
When John Milewski, executive producer of Close Up, asked R&H Theatricals in New York - the Rodgers & Hammerstein organization, which holds the license on the play - for the right to air the students' performance, permission was denied. The reason was cross casting, R&H confirmed.
Bert Fink, a spokesman for R&H, said his organization is not against cross casting, citing a 1997 Wonderful World of Disney version of Cinderella that featured R&B artist Brandy in the lead. "But when you're dealing with a theatrical work and race or ethnicity is a key factor, many authors or playwrights feel strongly that ethnicity has to be reflected in the actors who portray the characters," he said.
"In the books, Jim is a runaway slave. He is clearly in the novel an African-American man. And Huck is a free white man - that is central to the story. To ignore that component or to comment on it by switching is not faithful to the story that the musical's authors are trying to tell."
Faithful? Faithful? Heck, it couldn't be more faithful to what Mark Twain was trying to accomplish. Bloody idiots.
Copyfighters may want to visit the IP Justice League of America, "celebrating the only comic book of international super-star INTELLECTUAL PROPERTY POLICY super heroes!" Not much there yet, except some Warhol-esque portraits that rollover to declare:
Eblen Moglen - "Batman"
Larry Lessig - "Superman"
John Gilmore - "Green Lantern"
Robin Gross - "Wonder Woman"
Richard Stallman - "The Martian"
Ed Felten - "The Flash"
And the following:
Can the IP Justice League save Wil Wheaton from super-villain Jack Valenti? Will they defeat his evil army of psycho culture pirates!? Whose side is Avril Lavigne REALLY on??
I guess we'll just have to stay tuned to the same IP Justice League Channel, same IP Justice League time for more. How about an RSS feed instead, so I know when it is updated?
(And would this group actually call themselves the Intellectual Property League? Wouldn't they use some other term?)
The producers recently secured rights from Tribune Media Services (TMS), a division of Tribune Company, and will attach a writer over the next month. The plan is to pitch a modern take on the classic crime-fighting hero to networks this summer.
Actually, I would kind of like to see a Dick Tracy television show.
The blog, Take Back Our Campus!, hasn't been updated since April 4, 2005, but is highly critical of St. Lawrence University, members of its faculty and students. The blog is frequently offensive and sophomoric, but then again, isn't this sort of thing how sophomores got their name?
In any case, it is odd that a university would launch a lawsuit to determine the identity of the anonymous bloggers. Hello? Freedom of speech. Nevertheless, I can understand that some speech might beyond the pale (that is why not all speech is protected by the First Amendment). So, what is even stranger, is the method through which the university seeks to determine the identities of the bloggers. The university hasn't launched a libel suit or something similar. The university is making specious claims of copyright infringement.
In our own situation, the labels have told the mobile operators that the non-original ringtones are illegal or would confuse the public (despite big disclaimers on most sited or ads stating they are not the originals), said Slep [funder of cover ringtones provider MusicalContent.com]. Because the mobile operators do not want any undue hassle and value their customer base so strongly, they have succumbed to the pressure tactics of the labels. Many of the aggregators that have supplied the operators with the polyphonic ringtones were forced to drop carrying the cover version material we supply under this pressure, or else the labels threatened to NOT supply the original version tracks. [emphasis in original]
This is wrong on so many levels it isn't funny. Obviously, if these allegations are true (which wouldn't be surprising), we have the major record labels engaged in egregious anti-competive practices. Furthermore, why the heck is this even an issue? Apparently because the cellphone companies will only let you get ringtones through them. Why shouldn't you be able to download ringtones from any provider? Thank you, bogus telecommunications regulation that operates in conjunction with copyright to reinforce anticompetitive practices.
One strange aspect of this is that there is apparently an anonymous blog dedicated to ringtones by the artists themselves and against the cover versions ("The newest ringtones - truetones, polyphonics, wallpapers from the artists and record labels themselves") (Ringtone Releases).
Fascinating article on the BBC regarding the copyright wars between India and Pakistan (How piracy is entrenched in Pakistan). Turns out that Pakistan is cracking down on copyright infringement of Western movies, but not on movies from India:
"I am sure that at some level, allowing piracy of Indian films was considered a smart act of industrial sabotage by the Pakistani policy makers," says Ameed Riaz, the head of EMI Pakistan.
"Basically, anything that hurt India was considered kosher."
It is no coincidence that the first - little noticed - copyright law adopted in Pakistan in 1962 expressly stated that it did not cover Indian intellectual property.
However, the effect, it seems, was to entrench Bollywood even further in Pakistani culture:
Not just that: Pakistan's fashion and modelling industry has come to be deeply dependent on the Indian film culture.
Event management companies in Karachi that organise weddings for the affluent say that many brides want the wedding stage to resemble a set from a particular movie.
The wedding set from Indian diva Aishwarya Rai's film, Hum Dil De Chuke Sanam, was replicated at so many weddings in Karachi that it became a joke.
Street jargon employed by Bollywood crime characters has become every Pakistani parent's nightmare. Even the mullah in the mosque - if he wants to be popular with his audience - will base his religious anthems on popular Indian film music tunes.
Every major record company has vaults full of (and perpetual rights to) great recording by major artists in many categories which might still provide enjoyment to music consumers if they were made available in the right way. MUSIC CONSUMERS LIKE TO CONSUME MUSIC . . . NOT PIECES OF VINYL WRAPPED IN PIECES OF CARDBOARD. [emphasis in original]
I spent 17 years in the music business the last several of which were all about pushing and prodding the painful development of legitimate on-line music. Now, the music fan is on the cusp of riches in their options - free of the viruses of the pirate sites. There are lots of places you can go for great music at good deals and with a deep catalog of songs from over the last 20 or 30 years. MSN.com, Rhapsody.com, aolmusic.com, even walmart.com. There are little players to make your favorite music even more portable than ever starting at as little as 29 bucks. Most every player device works at every one of these stores and it is pretty easy to keep all the songs, no matter where you got them, in a single folder or "jukebox" on your computer.
Hello? This was and is an obvious consequence of your DRM-ed world, Miss Rosen. Apple is simply doing what comes natural. Having insisted on the means for exclusion being legally protected (i.e. DMCA), Apple is using those means to exclude competitors. The only reason that the other companies mentioned aren't doing the same thing is because they are struggling to gain marketshare. Were they the dominant players in the market, they would be doing the same thing as Apple.
The problem is that the iPod only works with either songs that you buy from the on-line Apple iTunes store or songs that you rip from your own CDs.
Well, only if you ignore the many smaller companies that sell unencumbered MP3s to their customers.
But those other music sites have lots of music that you cant get at the iTunes store.
And they haven't licensed to Apple, why? Whose fault is that? Is it Apple's? Or is it the fault of your former clients?
If you are really a geek, you can figure out how to strip the songs you might have bought from another on-line store of all identifying information so that they will go into the iPod. But then you have also degraded the sound quality. How cruel.
Cruel? Miss Rosen is one of the main people who insisted on creating the environment for this cruelty. In any case, if you know what you're doing, you don't have to lose much in the way of sound quality ... unless the systems are designed to make such stripping of information result in poor sound quality. Then, of course, you could always strip the DRM, but that would be a crime, thanks in part to Miss Rosen.
But keeping the iTunes system a proprietary technology to prevent anyone from using multiple (read Microsoft) music systems is the most anti-consumer and user unfriendly thing any god can do. Is this the same Jobs that railed for years about the Microsoft monopoly? Is taking a page out of their playbook the only way to have a successful business? If he isnt careful Bill Gates might just Betamax him while the crowds cheer him on. Come on Steve open it up.
Is it the only way to run a successful business? No, but it is a very good way to run one. Jobs isn't going to open up his system until it makes business sense. Unfortunately, Miss Rosen hasn't provided a single argument as to why it makes good business sense for him to do so. Is DRM anti-consumer and user unfriendly? Heck, yes. But that didn't stop Miss Rosen for lobbying on its behalf.
Why am I complaining about this? Why isnt everyone?
Many of us have been complaining for a long, long time. Of course, our voices may have been drowned out to a certain extent by all the propaganda emanating from the RIAA that music without the encumbrances of DRM is tantamount to piracy.
You can't have it both ways Miss Rosen. If you want DRM, someone is going to have to control that DRM. And if you don't think they won't use that control to their ultimate advantage, you obviously didn't learn anything from your association with the music industry.
In reality, the mouse statues are part of 75 InspEARations, a traveling exhibit of 75 Mickey Mouse statues with various designs. I saw the exhibit when it was at Disney's California Adventure. It was pretty disappointing (the statues, not just DCA). Instead of artists (as in many of the other city-wide statue projects), they were designed by celebrities who generally had no artistic sense and quotidian sensibilities. "Oh, gee, a Mickey Mouse made to look like a Lakers basketball player designed by Shaq." Sad.
Many have forgotten about the procedural and regulatory abomination that is ICANN. But the folks at ICANN Watch have not, and they report yet another scandal regarding domain names. In this case, the bogus procedures that have allowed the international airline cartel (IATA) to take over the ".travel" domain by proxy (ICANN reveals ".travel" sponsor is a front).
Read the whole thing and wonder why ICANN is still in charge of the domain name system.
Often described as the Magna Carta of the technology industry, the Betamax doctrine makes it clear that innovators need not fear ruinous litigation from the entertainment industry so long as their inventions are "merely capable of substantial noninfringing uses." In today's petition, the entertainment industry urges the Court to reverse that established rule and impose on innovators a "legal duty either to have designed their services differently to prevent infringing uses, or to take reasonable steps going forward to do so." Of course, on that view, Sony's Betamax VCR would never have seen the light of day, since Sony could have designed it differently (in fact, the movie studios suggested back in 1978 that Sony implement a "broadcast flag" system!) or modified it after Disney complained.
I certainly hope that the Supreme Court recognizes that courts aren't the best place to decide what innovation is permissible and what innovation is not and declines the cert petition.
The university has had a web-footed mascot since at least the 1920s, when a live duck named Puddles surfaced at football and basketball games. A duck emblem was in use by 1933, and by 1936 it was starting to look more like Donald, catching the attention of Disney officials.
In 1947, Oregon Athletic Director Leo Harris shook hands with Walt Disney himself on an agreement to allow Oregon to use Donald as the mascot. The deal was put in writing in 1974 in a licensing agreement giving the university limited use of Donald at athletic venues.
Wow. A good-natured handshake agreement for almost thirty years.
Of course, such things could not be allowed to continue:
In 1991, the agreement was expanded to allow wider use of the likeness on sweatshirts, glassware and other merchandise.
The frenzied "charging duck" pumping his fists inside a large, eight-sided letter 'O' was a ubiquitous campus logo for years. It was eventually replaced as the UO marketing machine grew and felt confined by Disney's restrictive contract, which forbids the school from selling items with the Donald Duck logo beyond the Oregon border.
Although Donald is much beloved by Oregon fans, a stylized "O" will have to do for out-of-staters.
Some have wondered why the MPAA has been so successful with members of the Republican Party, despite the fact that Hollywood, in general, provides much more support to Democrats. Well, those people can continue to wonder:
Almost everybody here [at the Republican National Convention] that I've met has been open, curious, friendly and positive. They all want to work with me . I recognize that there are some who wanted a Republican in my job of president of the MPAA. But I think folks also wanted somebody good at consensus building and that would fight for the motion picture industry. Clearly the movie industry, and all the industries interested in creative and copyright protection, have a lot of friends here in the Republican Party.
What he has to say on copyright infringement:
I don't think that MPAA is anti-technology. But it's vital that we combat piracy with a three-pronged approach: improve [piracy deterring] technology, enforce the laws and educate people, largely the younger people, in high schools and universities....We are engaging Congress on piracy. There are several bills that predate my coming into this job that are aimed at addressing this issue. These bills will make it easy to go after pirates. I think what we need to do is make the standards [that allow law enforcement] to go after violators more realistic.
His take on the tech industry ought to send shivers up the spines of Silicon Valley types:
I have spent time with our technology people in Washington, trying to familiarize myself with the technology. But the bottom line is, we need to make it as difficult as possible for people to engage in piracy activities.
There a number of interesting tidbits in the interview, such as the fact that 70% of the MPAA's 250 employees are involved in anti-piracy work and that the anti-piracy office is "really where the interfaces with the studios" are. The MPAA will also continue to make itself heard in promoting draconian copyright laws through international treaty:
One of my goals is to use my background and experience in dealing with international trade issues, particularly as I was involved in the agricultural arena, to further the market-opening free-trade discussions.
It is practically Orwellian how "market-opening" in MPAA-speak means innovation-controlling, as the MPAA exports the DMCA around the world.
Of course, there is a hint of arrogance in Glickman's comments regarding Rep. Rick Boucher (D-VA)'s Digital Millennium Consumer Rights Act:
Obviously there's some support for the Boucher bill -- and I think it needs to be fought vigilantly -- but my judgment is that there's no imminent threat of passage. It's going to require vigilance on (the part of) folks like the MPAA, the (Recording Industry Association of America) and others. The battles have heated up even more in the last couple of years on this. Rick is actually an old friend of mine; we served together on the Judiciary Committee. I have to go in and teach him a few things when I get a chance. (Laughs)
Let us hope he finds his arrogance mistaken.
Most importantly, Glickman's main focus will be copyright issues at all levels:
Copying is an international plague; it's pure, downright theft. The question is: How do you deal with this in the modern, changing world? It's a multifaceted strategy. Specifically as it relates to the movie industry, it has to be a combination of aggressive law enforcement by state and federal authorities, use of litigation, civil litigation (and) education. I spent two years in a university at Harvard, and I would hope to use those talents in part of the (public relations) and educational strategy to further the work that has already been done on college campuses. (Also important is) being open to new technology, exploring with the people who create new technologies how one permits those technologies to flow and develop but at the same time respects the creator's rights.
Frightening language in its anti-innovation clarity: aggressive state law enforcement, how one permits technology to develop.
Glickman will be leading the charge from the other side of the copyfight, what he says and does is important.
What is really scary about this interview is the profound ignorance, or is it, perhaps, "willful blindness" Valenti demonstrates.
Unclear on How Cryptography Works
I have said, technology is what causes the problem, and technology will be the salvation of the problem. I really do believe we can stuff enough algorithms in a movie that only the dedicated hackers can spend the time and effort to try to plumb through those 1,000 algorithms to try to find a way to beat it. In time, well be able to do this, because I have great faith in the technological genius thats out there.
Has Never Heard of 17 USC 107
There is no fair use to take something that doesnt belong to you. Thats not fair use. If youre a professor in a classroom, you show Singing in the Rain to your class. You can fast forward it, and theres no performance fee for that. Thats fair use. Now, fair use is not in the law. People are taking fair use and changing it to unfair use and claiming that its fair use.
Doesn't Realize that the MPAA Opposed TiVo to Go
So there are no restrictions that Hollywood wants to place on what people can do with media on their computers?
Well, I cant tell you that. We have to see what the technology can provide.
Thinks Digital Things Last Forever
When you go to your department store and you buy 10 Cognac glasses and two weeks later you break two of them, the store doesnt give you two backup copies. Where did this backup copy thing come from? A digital thing lasts forever.
We've discussed the definition of "copyfighter" before (IAAC - I Am A Copyfighter and Defining "Copyfighter"). Regardless of the details of the definition, I think we certainly have to add the New York Times Editorial Board to the copyfighter category. For example, here are a few recent editorials from the Times:
These are thorny issues indeed. Freedom of information is at the root of American democracy, and yet every day we see that freedom being compromised, controlled and limited. The Grokster decision is a ruling in favor of keeping our bets open about which technologies will turn out to serve our freedoms best.
It would be better for consumers if Apple began licensing its digital rights management software, only because the iTunes Music Store will not be able to lock up access to all the copyrighted music in the world. But RealNetworks' contention that Apple is stifling freedom of choice is self-serving. You can play music from any CD on an iPod, once it has been digitally copied, and the device works on PC's and Macs.
That is not how Congress usually thinks about it. A good example is the so-called Induce Act, now under consideration, which would make it a crime to aid or induce copyright violations like illegal file-sharing.
But the bill is so loosely worded that it could threaten a host of legal information-sharing practices and technologies. That includes everything from the iPod to automatic online translation. Critics claim, with reason, that this overreaching bill would have deeply chilling effects on technological innovation.
Congress seems instinctively to side with those who instinctively want to put a chokehold on new technologies. It's always easier, after all, to try to protect what appears to be "an absolute, inviolable set of rights" than it is to find equitable new ground to stand on in the rapidly shifting debate over digital copyright.
Kudos to the NY Times Editorial Board for recognizing the importance of these issues and making their position clear.
Using two new punctuation marks, the question comma and the exclamation comma: and respectively, inquisitiveness and exclamation may be expressed within a written sentence structure, so that thoughts may be more easily and clearly conveyed to readers. The new punctuation marks are for use within a written sentence between words as a comma, but with more feeling or inquisitiveness.
Seems that this is sort of an addition to the faddish punctuation known as the Interrobang.
Anyway, he has been going after copyright issues with a vengeance. In one post he talks about a soon-to-be-published paper in which he advocates for a copyright registry to reduce the costs of extensive copyright terms (Fair Use and Licensing). The argument sounds similar to Lessig's that, after a certain point, copyright holders should have to pay a license fee to retain copyright. Posner is arguing that they merely have to register a work. It will be interesting to read the article when it is published. See also, these postings (Licensing and Fair Use and Eldred Revisited). Like one of the commentators, I would also be interested in knowing why "poor old Mickey Mouse would be even less free if anyone could employ him without compensation."
The federal government plans to more aggressively attack intellectual property theft, a near "epidemic" that has hit the music industry harder than any other, a federal official said Monday.
"The music industry deserves special attention from the Department of Justice because as an industry you have done more to help yourself more than any other industry that is experiencing theft of property right now," David Israelite, chairman of the U.S. Justice Department's Intellectual Property Task Force, told a group of songwriters at Belmont University.
The industry has battled music piracy, or illegal downloading of music on the Internet, through lawsuits, advertising and "any means necessary," Israelite said.
Except, perhaps, changing their business model like other industries do when faced when changing economic circumstances. Heck, even Israelite acknowledges that the music industry was slow to permit legitimate downloading, according to an article in the Tennessean (Ashcroft aide attacks copyright infringement):
Israelite was also somewhat critical of the music industry, saying the industry should have offered legal downloading more quickly.
Of course, getting back to the task force, which is supposed to make suggestions to Ashcroft come October, they may be looking at getting local law enforcement involved:
Part of the problem with enforcement is that copyright violations are a federal crime only, so the states and local law enforcement are not involved, he [Israelite] said.
"That makes it very difficult to go after mass copyright theft," he said. "If you had shoplifting at the rate you had digital theft from copyright violations, you'd have about 800,000 total police helping you."
Like local police have the resources and expertise to handle copyright infringement cases. Great.
We are writing to encourage you to take concrete and meaningful steps to address the serious risks posed to the consumers of our States by your invention of the Internet, including but not limited to email and web browsing. By addressing such problems as the use of email and the Web to disseminate pornography, invade privacy, and infringe copyrights, the Internet may one day realize its potential as a means for facilitating a wide range of collaborative project management, business planning, and academic/educational activities. At present, the Internet has too many times been hijacked by those who use it for illegal purposes to which the vast majority of our consumers do not wish to be exposed.
In a move designed to give schools an affordable way to use eBook technology, eReader.com and Lightning Source Inc. developed The Classics Collection CD, a comprehensive collection of 500 titles that includes "The Red Badge of Courage," by Stephen Crane, "Little Women," by Louisa May Alcott, "Night and Day," by Virginia Woolf, the works of William Shakespeare, and other books commonly found on middle and high school reading lists.
This collection provides schools with a cost-effective way to easily distribute eBooks to students. The eBooks cannot be lost, stolen, or damaged, and the license entitles the school to internally distribute as many copies of the eBooks as it wants, as many times as it wants.
I understand why the company had to settle, a lawsuit would have been very expensive with no guarantee that they would win. However, it is sad that such a case can be brought. I guess that Schwarzenegger is the only one who can lampoon himself with references to his prior profession? He is permitted to call opposing legislators "girlie men," in homage to his previous career as a weight-lifting champion, but heaven forbid someone parodies that in bobblehead form. If someone sells a bobblehead of John Kerry as Vietnam vet, John Edwards as an ambulance chaser, or George Bush as a Texas oilman, I guess they should have the right to sue too?
What was my role amid all this change? Every day I worked to make sure the American movie could move freely and competitively, unrestricted and protected throughout the world. I believe I had some modest success doing just that....What's left to do? The highest priority is to corner and fight the dragon of movie thievery. It's a battle we will win new, secure technology, plus changes in public attitudes and more enforcement of copyright laws, will bring moral serenity to the marketplace soon.
Too bad American technology didn't have nearly the competitive freedom, thanks in significant part to Valenti. In any case, let us hope that his prediction here is accurate:
Which of my accomplishments will last? Probably the 36-year-old (come November) movie-rating system, which not only frees filmmakers from arbitrary rules but, more important, helps parents guide their moviegoing children.
So perhaps Jack Valenti acknowledges that laws like the DMCA and Sonny Bono Copyright Term Extension Act won't last.
The link to Jack's bio page on the MPAA's website is no longer there, but the somewhat-broken page is still up (A Look at Jack Valenti). Is the MPAA getting ready to put up a tribute page?
Hmm...inspired by a chat I had with Cory and Doc a while ago, I've decided to Wiki the 1 Million Free & Legal Music Tracks page. For those of you who don't know what a Wiki is, it's a page or set of pages which can be altered by any visitor to a website.
My hope is that people will responsibly use the opportunity to add cool new free music links to the page as they find them. Hey, who knows, it might even get exciting. Anyway it's all a bit of an experiment at the moment, so I'll be keeping an eye on it just to make sure that it's used and not abused. Seacrest out! [links in original]
A great place to fill your iPod without worrying about that whole Real/Apple mess.
"Wouldn't it be great if you could take a dozen of your favorite songs with you," [on your cell phone] Jobs told the crowd.
Wouldn't it, just? For millions of users however this is already a reality. Much like a burglar giving the burgled householder first opportunity to buy their own stuff back, Apple is promising a right we already enjoy as a bonus. An innovation, even...."If people accept [DRM], the logic for the music industry is to apply the wonders of the Internet to the old vinyl-tape-CD upgrade gag, and to start selling different versions of playback rights (want a shedload of one-time play music for tonight's party? we can do that for you)," wrote John Lettice.
Having set the bar so low at 128kbps encoding - and the price at 99 cents per song, so high - one of the premiums that the music industry will now be able to offer is 'fair use'. In order to get the public to accept this proposition they must first forget that they ever had the right to make a copy of music they'd bought. And that's the true significance of today's announcement.
Actually, I don't really agree with all of the Register's analysis, but it is something to consider.
This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we dont give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, thats all we wanted to do.
The NY Post reports that Apple is threatening a lawsuit against upstart music video channel Fuse for ads that parody Apple's silhouettes campaign (Apple Blows Fuse Over Ads). Unlike the happy music listeners in Apple's ads, these ads reportedly feature people doing beer bongs, pole dancing and masturbating. Some iPod owners are reportedly furious as well, which is no surprise considering the rabid devotion strong affection many Mac and iPod owners have for Apple.
Fascinating story about an RIAA crackdown on a popular alternative music store selling DJ mixtape CDs (Busting Berry's Music). The music shop was raided, stock taken, and the store's named dragged through the mud. No warning, no cease and desist, the RIAA simply went full bore after the store for selling something (DJ Mixtape CDs) the recording industry praises in other forums. This was not about selling bootlegs or counterfeits. It was a store promoting music. You'd think the RIAA would be a little more supportive.
The owners suspect they were targeted because they broke "streetdate," the day a release is officially to be sold. Stores frequently receive copies on a Saturday when the albums aren't supposed to go on sale until Tuesday. Seems like something the distributors could handle if the labels didn't like it.
Interestingly, the federal copyright charges against the store were dropped. However, the store was still prosecuted for violating a "true name and address" bill that requires the name and address of the CD manufacturer on CDs. Ridiculous. And the RIAA wonders why music sales are doing so lousy. Perhaps taking legal action against music stores and forcing them to close has something to do with it.
MIT's Technology Review makes an important point regarding software vs. music/movie copyright infringement (Can Peer-to-Peer Stop Software Piracy?). If you're downloading warez, you never know what you're installing on your system. Could be the game you want, could be a trojan. There are no guarantees. This means that software is better positioned to fight internet infringement.
On its face, offering to sell a piece of software in a forum where users can obtain the same product for free sounds like a futile endeavor. However, the illicit nature and reputation of these networks makes these sales more likely. Heres why: With the possibility for viruses so high when downloading a piece of software from these networks, consumers may be more likely to purchase software from a trusted source. If youre an intellectual property owner, you have to make it as easy to legitimately acquire your product as it is to swipe it, says Garland. People dont care if an MP3 file is Sony sanctioned. But if youre going to do your [finances] with a piece of software, you want to get the real McCoy.
Audible, the audio e-books site, is making the 9-11 Commission hearings available for download, free. Go Audible. I'd link to the specific page, but you can't.
In order to download the files you have to register with Audible. Okay. Understandable, sell your personal information for Audible's bandwidth. You also have to download Audible's proprietary file organizer. Again, understandable. These requirements are not particularly admirable, but Audible is a business. Even more strange, however, is that in order to download these public domain hearings, you have to agree to Audible's terms and conditions (which I can't provide a direct link to either):
When you "clickout" or otherwise "purchase" (referred to herein, collectively as "Purchase") Audible Content from the Audible Service, Audible grants you a limited, revocable, non-exclusive, non-transferable license to download or stream such Audible Content to your computer and/or your Device(s) solely for your personal non-commercial use. You shall not copy, reproduce, distribute or use the Audible Content in any other manner. You shall not sell, transfer, lease, modify, distribute or publicly perform the Audible Content in any manner and you shall not exploit it commercially. Do not (A) decompile, disassemble, or reverse engineer the Audible Content or attempt to do so; or (B) modify the Audible Content or create any derivative works therefrom. [emphasis in original]
Gosh how I love the way some companies claim dominion over the public domain.
If there are no changes in European copyright law, the track [Elvis Presley's That's All Right] will fall into public domain Jan. 1, 2005. Anyone will be able to release it without paying royalties to the owners of the master or the performer's heirs. BMG will start losing a significant piece of its catalog income in Europe.
As "That's All Right" is being hailed by some as the beginning of rock 'n' roll, the implications are that every year after 2005, more recordings that defined the genre will fall into public domain.
Of course, this has the European recording industry in a panic:
Jamieson [executive chairman of British Phonograph Industry] added, "The end of the sound recording copyright on the explosion of British popular music in the late '50s and '60s, not just the Beatles, but many other British artists, is only a short period away. If nothing is done they will suffer loss of income not just for their sales in the U.K. but their sales across the globe."
And Europeans should care about this, why? If the theory justifying copyright is an incentive one, all the artists and recording companies seem to have been properly incentivized. I can safely say that extending copyright for existing recordings is highly unlikely to incentivize the creation of more music in the 1950s and 60s, unless Austin Powers can actually go back in time.
Just below, Donna discusses the new documentary (OutFOXed) that criticizes Fox News' "fair and balanced" news reporting (Fair Use It or Lose It, Part II). One of the main issues is whether or not Fox News will sue for copyright infringement against the fair use commentary of the movie. Well, it looks like Fox just may, according to statements from Fox this afternoon: Outfoxed Rope-a-Dope Begins?:
The illegal copyright infringement actions of moveon.org in cooperation with The New York Times, including 'cutting a deal' not to give Fox News Channel adequate time to react, is unprecedented.
Rob Heverly is starting a collection of strange and/or absurd copyright claims (Strange Copyright Claims). One such claim was found in a disclaimer at the bottom of a website "This material may not be published, broadcast, rewritten or redistributed." Well, the fact that it was already on a website indicates it was published.
Anyway, Heverly isn't sure what he'll do with the collection, but he is asking people to send him more examples of bizarre copyright claims.
Yesterday's NY Times' Circuits section had a great article about the impediments of DRM and the DMCA for those who legitimately own DVDs (Whose DVD? A Debate Over Copies). One example used is of a couple who take copies of their large (expensive - lots of money sent to Hollywood already) DVD collection when they travel on their boat. The ability to copy saves hauling the DVDs back and forth and the consequent risk of loss, damage or theft. Well, we may not all own boats in Bermuda, but we can all sympathesize with the couple who have no intention of harming Hollywood.
The story publishes the counter arguments:
The Federal District Court judge in one case, Susan Illston of San Francisco, was unswayed by arguments that users of the company's products did not routinely engage in piracy or otherwise damage the market for DVD movies. "It is the technology itself at issue, not the uses to which the copyrighted material may be put," she wrote in her opinion.
That sounds persuasive. Not.
It is stories like these that will eventually undermine Hollywood's desparate attacks on consumers.
Bloomberg is running a pretty long feature on movie piracy, particularly on the internet (Time Warner, Disney, Viacom Lose $3.5 Billion to Film Pirates). The piece is not as skeptical of Hollywood's claims as I would prefer, but it is actually a pretty good summary of many of the issues. I would recommend it for those who haven't been paying close attention to these issues and want to catch up a bit.
If regular readers haven't guessed by now, I'm a huge fan of annotations. It is my humble opinion that one of the great annotative projects of all time was Mystery Science Theater 3000 (aka MST3K).
MST3K was (alas, it is now only available on DVD) a wonderfully creative television show (there was also a movie, MST3K - The Movie) with a relatively simple conceit - three characters (a human and two intelligent robots) are mentally tortured (for reasons beyond the bounds of this post) by being forced to watch bad B-grade science fiction movies from the 50s and 60s (MST3K FAQ - The Basics). However, rather than meekly submitting to the torture of terrible acting, atrocious plot lines and cheesy special effects, the three characters retain their "sanity" by providing a running comedic commentary to the movie, while their silhouettes (we see them as seated in a theater) are superimposed on the bottom of the movie image. In general, the commentary is witty, funny and much more entertaining than the original movie production.
Anyway, I came across this cool copyright-related quote from MST3K on 'Botspeak, an MST3K glossary/dictionary:
"Amazing Grace" spiritual song beloved by small-town residents in movies on account of its being royalty-free
Knopf had agreed to let numerous TV outlets interview Clinton over the weekend and Monday before the book' release on Tuesday, and kept the book under wraps, refusing to sell excerpts in advance. A Knopf lawyer cited precedents, but other lawyers indicated AP was safe because it had stuck to the "facts" from the book without extensive verbatim quotes.
I wonder how many of those TV outlets cancelled their Clinton interviews because all the juicy bits in the book had already been revealed at the end of last week. I'm sure the massive publicity rollout has turned into a complete failure.
Heres the story. Irdial put out a CD full of recordings of shortwave numbers stations called The Conet Project. The numbers stations are broadcast anonymously and more or less everyone acknowledges they have something to do with international espionage. For this reason, the recordings themselves are probably either not covered by copyright at all (in the case of recordings made by the United States government) or are protected by rights that are extremely unlikely to be enforced, since doing so would blow the broadcasters cover. [emphasis, links in original]
I've been a huge proponent of the ability of people to annotate and comment upon fixed media for years now. Some technologies that allow this with regard to DVDs has been maturing over the past few years as well, though mostly to permit people to edit out that which they consider offensive. See, Editing DVD Player on Sale Soon. Of course, these technologies are being sued for copyright and trademark violations on behalf of the directors who whine that their droits moral are being infringed upon (though there is little complaint when their work is butchered for the airlines or broadcast in the wee hours of the morning). Recently, congressional hearings were held by Rep. Lamar Smith (R - TX) to consider the issues (Liberals, Conservatives Favor Different Kinds of Censorship). Normally, Rep. Smith is a fan of expansive copyright, but his censorious tendencies made him a fan of this annotating technology with regard to blocking out naughty bits.
Of course, if you don't circumvent the copy protection, there will be no way for you to copy your legitimately purchased music onto an iPod. Ah, format wars at the expense of the consumer. Which DRM monolith with prevail?
"We are actively working with Apple to provide a long-term solution to this issue," a posting on SunnComm's Web site reads. "We encourage you to provide feedback to Apple, requesting they implement a solution that will enable the iPod to support other secure music formats."
Translation: It isn't in Apple's interest to support Microsoft's format or allow people to support iTunes who support Microsoft's format. How else do you explain SunComm begging consumers to do its Apple negotiations for it?
But the format wars are worth it, if it prevents widespread internet piracy:
EMI Music has "been encouraged by the success that SunnComm's MediaMax product has enjoyed," Richard Cottrell, global head of antipiracy for the record label, said in a statement. "We are pleased that SunnComm is developing a product that improves our ability to protect our artists' works, especially during the prerelease phase."
This guy is head of global antipiracy for a record label and he thinks this shift-key-circumvented DRM improves their ability to prevent piracy "especially during the prerelease phase." Man, I want a high paying job like this guy where I don't have to know nothing.
Whoo! Those engineers are thinking outside the box! I've got a better idea though, how about a friggin' hard drive in the BMW that you can transfer songs from the iPod to so that you don't have to remember to bring your iPod with you all the time? Maybe you could even have auto-synch capability so that the BMW's hard drive gets updated each time you do bring the iPod along.
Oh, that's right, the iPod doesn't let users upload songs to another device because iPod owners are nothing but dirty, stinking thieves (who can afford very expensive cars).
A bill in the House of Representatives, HR107, would overturn a major provision of the controversial Digital Millennium Copyright Act of 1998 (PDF), which bars consumers from circumventing encryption on digital media products, even if they only intend to make copies for personal use.
The bill's sponsor, Rep. Rick Boucher (D-Virginia), already has 19 co-sponsors, including powerful House Commerce Committee Chairman Joe Barton (R-Texas). It's unlikely the bill will become law this year, but its proponents see the backing as a good sign.
Of course, the MPAA is still claiming that there is no need for changes to the DMCA as it has no effect on fair use:
"That's just not true," said David Green, vice president and counsel for technology and new media at the Motion Picture Association of America. "The DMCA retains fair use. It doesn't change fair use in any way."
You could ban the printing press and the MPAA would claim there was no effect on free speech.
Lobbyists for record companies and Hollywood movie studios laid out a case against online file-sharing before a group of attorneys general, suggesting the state prosecutors should examine whether such companies are breaking state laws....
One example, whether the distributors of file-sharing software like Kazaa, Grokster and Morpheus do enough to warn users that they could be liable for sharing copyright content....
[Fritz] Attaway [Executive VP and General Counsel for the MPAA] also suggested the state prosecutors might have a case for protecting businesses like movie theaters and video stores from P2P software companies under state unfair competition statues. P2P software providers divert customers, affect jobs, he added.
Why should the attorneys general be looking into this if the ongoing lawsuits (or the INDUCE Act) were going to work in shutting down these services? There is also a hint of desperation in these justifications for getting the AGs involved. Not that it seems they are biting (probably have better things to spend money on than subsidize Hollywood's lawsuit agenda). Undoubtedly, the RIAA and MPAA will also be ramping up their state legislatve agenda, pushing more state legislatures to introduce bills like California's "True Name and Address" Bill.
1. That DRM systems don't work
2. That DRM systems are bad for society
3. That DRM systems are bad for business
4. That DRM systems are bad for artists
5. That DRM is a bad business-move for MSFT
I, of course, agree with all of them except number 5. The problem is that because of Microsoft's monopoly position, creating DRM backed by law can actually be quite a good business move, particularly if you don't think you are in a position to continuously innovate or need some barriers to entry to slow your competitors while you copy their innovative ideas.
For example, AT&T very successfully blocked innovation for a time and thrived, relatively speaking. Once innovation was permitted, AT&T struggled and now it is little more than a famous trademark. And thriving, relatively speaking, is exactly what business leaders want. You never know if a new innovation will really grow the market for your company. It is sort of hard to prove and guarantee. But no one can fault you if you stay on top of a stagnant or slowly growing market. The profits lost due to stifled innovation aren't as obvious as the profits lost due to a business model shift.
C|Net News's Declan McCullagh is the first big J journalist to report on the INDUCE Act (Antipiracy bill targets technology). He explains why the bill wasn't introduced today (it will be introduced next week) and gets confirmation that the bill was approved by the big C copyright industries: "One prominent lawyer for the music industry, who spoke on condition of anonymity, said he had reviewed and approved of an earlier draft of the Induce Act." Several critics of the bill are cited and McCullagh concludes:
Foes of the Induce Act said it would effectively overturn the Supreme Court's 1984 decision in the Sony Corp. v. Universal City Studios case, often referred to as "Betamax." In that 5-4 opinion, the majority said VCRs were legal to sell because they were "capable of substantial noninfringing uses." But the majority stressed that Congress always has the power to enact a law that would lead to a different outcome.
The Protecting Intellectual Rights Against Theft and Expropriation Act of 2004, the PIRATE Act, S. 2237, is an important legislative effort I joined Senator Leahy in sponsoring. This bill will give the Department of Justice the flexible enforcement powers needed to deal with the challenges posed by so-called peer-to-peer filesharing software. The design of this software seems to induce otherwise law-abiding people to violate federal laws relating to copyrights and distribution of pornography. As a result, it has been difficult for the Department to bring the moral force of the government to bear against the widespread piracy induced by this software. The PIRATE Act will ensure that the Department will have the option to impose civil penalties against users of filesharing software who are breaking federal laws, but may not warrant criminal prosecution. [emphasis added]
It's that evil software, seducing law-abiding citizens into degraded lives of pornography and copyright violations. It is criminals like Seth Finkelstein, who induces the otherwise law-abiding to violate the copyrights of censorware producers (INDUCE Act).
What's that old saying? "Give a man a book and he reads for a day. Teach a man to publish and he infringes copyright for a lifetime."
Disappointing, but not unexpected news about the ability of the government to restore copyright to public domain works. In Luck's Music Library v. Ashcroft [PDF] (21 pages), the United States District Court for the District of Columbia upheld the ability of the government to restore copyright for foreign works that had entered the public domain in the US, but were copyrighted in their home country. The case challenged the constitutionality of Section 514 of the Uruguay Round Agreements Act, codified at 17 U.S.C. 104a. The case had been held up until after the Eldred decision. The plaintiffs were a sheet music company and a film restoration company.
This is amazing. Now we're waaaaaay beyond contributory and vicarious theories of liability, which are court-created and pretty darn broad on their own. See Napster 9th Circuit, Aimster 7th Circuit. It's not even clear what the limit to this is -- "aids" could mean that even something that would have been fair use under the Sony Betamax decision is now an illegal inducement.
CNN reports that videogame publishers are getting into the DMCA action (Video game makers sue software firm). The lawsuit apparently involves the anti-circumvention provisions of the DMCA and is targeted at the publisher of Games X Copy, which allows users to backup and/or run PC games from a virtual drive.
My favorite line from the article:
[Doug] Lowenstein [president of the Entertainment Software Association] said the product nevertheless violates copyright law and is "masquerading as a consumer-friendly tool."
You know, it is unfriendly to consumers because it lets them play games from the hard drive, without having to constantly swap CD-Roms and what not. I can't see how any consumer would want to have to deal with the convenience and all.
Not that I want publishers to suffer from piracy, just that I'd wish they'd give their lawyers something better to do than beat a dead horse. Maybe like forming a dance team, or building a soup kitchen to feed their developers.
Really, this is a pretty good idea. However, I seriously question whether professors and educators will support the use of such books in the classroom. Certainly the textbook publishers are going to lobby against it (it's big, big business!). It will also be interesting to see how happy professors are that students are taking notes from class and adding them to a collaborative book (I seem to remember a case along these lines, or maybe it was just a hypothetical - anyway, I don't have time to look it up).
The basic gist of the study is that anonymous social networks have fewer effective norms than large, closed networks. For example, child pornography is much more widely available on the open network than the closed network. Presumably, small, closed networks would have even more effective norms.
This is actually good news for copyright holders. It means that if they modify their policies to function in accord with and reinforce certain copynorms, such as the no free riding norm, they will be able to thrive. However, if they continue to fight existing and developing norms, they are likely doomed.
Now part of the whole shtick with Hymn is that even though it strips the iTunes DRM, it leaves your email address and other unique purchasing information in the protected AAC file, ostensibly to symbolically signify that Hymn users aren't trying to spread their fairly-purchased music files to the whole world, but instead to whatever devices they want. I unlocked mine so that I could be sure to play them after I had reformatted my machine. I'm pretty sure Apple has a method of reauthorizing your computer, but that's a hassle. But now the new version of iTunes has recognized that the DRM-stripped M4P files were purchased from iTMS and is telling me my (reformatted, reinstalled) machine isn't authorized to play them.
So, here we have a DRM stripping program that is deliberately designed to encourage copyright compliance yet still enable fair use. What does Apple do? They deliberately make such stripping programs untenable. Gizmodo has a work around for the short term. Of course, the likely long term solution will be for Hymn to strip all information from DRM'd files so that they can't be blocked this way.
BoingBoing links to a new "copyright experiment" (Monolith and digital copyright). The software project, called Monolith, takes two digital files and XOR's them (what the author refers to as "munging"), creating a third file. The author calls the two input files "element" and "basis." I think many people might call them "plaintext" and "key." The output file (aka the "monolith" file) would be called the "cryptotext."
The conceit of the concept is that neither the cryptotext nor the key is copyrighted. Thus, it should be legal to distribute both. Otherwise, the author of Monolith claims, everything is copyrighted and nothing can be distributed because there is always a number such that, if XOR'd with another number, will produce a copyrighted work.
This argument is not new and it not terrible interesting. It basically postulates that any encrypted transmission of information is actually not a transmission of information at all.
Today, for the first time, someone got upset at us for using one of their images in a 70 word blog post that is sending dozens of people a day to their website. Im trying to explain to the person that well take it down if they want, even though we could use a thumbnail/cropped photo by the fair use provisions as reports, but that we would rather work with them to come to a partnership.
Calacanis is right that blogs have not been hit too hard on the copyright issue so far but that is likely to change - especially for money-making blogs such as Calacanis'. Unfortunately, his solution for the image problem isn't too hot:
As a group we need to set a standard when using other peoples photos. Perhaps we should all agree that we wont use more then 50% of the original photo, cropping out the rest. Nick does this on Fleshbot all the time. Now, granted it is because of the design and to keep the site more work friendly, but I think he is on to a model of fair use for bloggers. Also, we could agree that no photo will be over 300x300 pixels and that any time you use an image you should link back to the source (we do this already, as almost everyone does).
It is clear to me that the basic software concept is a no brainer and even a necessity in our increasingly unwired world. After all, there are many obvious legitimate uses for such a service. Anytime people gather physically such software would be very useful in transfering all sorts of files and information. Papers and notes can be zapped around during meetings, conferences and class. For more examples of non-music related uses, see Social Twister: Pocket Rendezvous: Spawning Connectivity.
However, the music sharing aspect is less impressive to me. I have to disagree with Derek Slater on how interesting it is (WiFi File-Swapping). I don't really see much more than novelty value in being able to join a filesharing network with complete strangers in a physical space. Are you really going to want to share that much with strangers you pass on the street or a local coffeeshop? It is one thing to be able to transfer with someone you've made some connection with, but to promiscuously advertise your files and interests to everyone around? Sure, such software would make fileswapping parties a bit easier, but they're not that hard to set up in the first place. Read on...
WIRED has a good article on the culture of videogame sprite comics (You, Too, Can Be a Comics Whiz). Basically, comic strip artists use pre-existing images from videogames and create comic strips from them. The prime example WIRED provides is Bob and George, which uses images from Megaman videogames. B&G is actually a quite interesting combination of videogame fanfic and comic.
Strangely, while the article discusses the controversy of artists using pre-generated imagery to make comics, there is no mention that such use is not limited to sprite comics. Indeed, "clip art" comic artists have been quite popular outside the sprite world, including such mainstream works as Get Your War On and This Modern World.
Nor is there a mention of the similar use of videogames to make video, one of my favorite art forms, aka machinima. For example, Red vs. Blue uses almost no original imagery in their work (all the action takes place within the videogame Halo), yet surpasses the quality of many mainstream television shows.
Nevertheless, the article does a good job of pointing out the legal limbo these comics, like fanfic, reside in. The game companies refuse or are highly reluctant to license, but they seldom seem in any hurry to go after the works legally - something you don't see much with regard to other content industries. Overall, I think this is a good thing, given the present status of copyright law. Over time I believe that sprite comics and machinima will continue to grow in respect and cultural cache such that companies will encourage their creation.
GrepLaw points to an excellent group of remixed commercials that take familiar sales imagery and turn them into political and social commentary (Commercial Remixes). You can see the commercials here: Commercial Jams. GrepLaw guesses that,
These commercials are very cool, not because I necessarily agree with their leftist viewpoint, but because they are expressed rather well (mostly). Prof. Larry Lessig asks, "does anyone know of great conservative remix culture? Attacks on Kerry? Or liberals?" (remix culture).
Television remains one of our most powerful mediums. Video is and will remain crucial to promulgating memes. This is why video remix culture is a critical element necessary to empower democratic discourse. Of course, the question remains of how to efficiently and effectively distribute these works. Hmmmm ... broadcatching, perhaps?
Contestant: "What is ... how do you increase demand for illicit P2P, Alex."
As been noted on this blog previously, it is currently trivial to get around online music DRM. All one has to do is burn the music to CD (which all the major non-subscription services permit to a greater or lesser extent) and then re-rip the music, without DRM, to the hard drive. Basically, this proves that DRM is not really about hindering piracy, but maintaining control (Why Use DRM If It Doesn't Work?).
Anyway, some record labels are apparently considering means to close this means of copying music, according to a report in C|Net News (Labels to dampen CD burning?). Apparently, burning software would permit you to burn a CD that couldn't then be re-ripped.
Frankly, I think this is truly bizarre.
First, it isn't going to work. Whatever scheme they use will be cracked and/or CD's burned using the scheme will cause all sorts of headaches. Second, if it works for burned online music, why not burn all CDs with that scheme? Third, it penalizes those who purchase online music. Do the labels want legitimate online music services to thrive or not? Illicit filesharing will not decrease one iota and may increase thanks to otherwise legitimate purchasers seeking music without onerous DRM schemes.
The only benefit I see is that the labels won't be liable to consumer lawsuits since online music is licensed, not sold. Of course, those who have "purchased" music legitimately and find their contracts changed such that they don't enjoy the same rights down the line will have no one to blame but themselves.
"A lot of people don't really see stealing cable as a crime," said Kristin Peck, director of public affairs for Cox [Wichita's cable provider].
That raises a good question. Why is it cable theft and not cable sharing? Assuming that the illicit taps into the cable system don't interfere with other's use by degrading the signal or causing frequency interference, why should cable sharing be wrong? If enough people do it (an estimated 15,000 in Wichita, or ~4.5% of the population) shouldn't it be legal? Doesn't the cable company rip people off by charging too much and by charging for channels they don't want or watch? Shouldn't people be allowed to sample, as long as they buy the DVD set later?
Item 1) Below, Donna notes that a recent consultancy report rings the alarm bells about the use of open software platforms on cell phones (Dumb Mobs). If people have the opportunity to run the free services they want on their cellphones, they may be able to avoid paying for similar services. For example, dialing 411 costs money, doing a number lookup via one of dozens of websites is free. The point is, service providers have to lock down the hardware with DRM to make money on the service.
Gamespot is running a bizarre guest editorial complaining about the used console game market made possible by the First Sale doctrine (Second-Handed Compliment):
You know, Nintendo, Sony, and Microsoft must have a real love/hate relationship with stores that stock used games alongside their new games--stores like Electronics Boutique or GameStop. It's a pretty amazing concept when you stop to think about it. You can go to any number of these retailers and purchase, say, a used Xbox, used accessories, and used games. You can experience all the joys of the machine just the same as someone who bought it new and spent a few more dollars than you, except that you didn't give Microsoft, the game developers, or the game publishers a thin, red cent. [emphasis in original]
Luckily, he doesn't actually advocate repealing the First Sale doctrine, but would prefer that people not take advantage of it. Presumably the author, if or should he go to college, will buy only brand new textbooks and will not sell back the useless ones at the end of the semester. I imagine he also boycotts libraries out of principle.
I guess he doesn't take into account that profit margins for retailers of new games are razor thin. Without used game sales there wouldn't be as many Electronic Boutiques and GameStops. Used merchandise draws in customers who might also be something new when they buy/sell something old. A used market increases the value of the original merchandise. Suddenly, that $50 game looks like only $40 since I know I can sell for $10 when I'm finished with it. Nah ... first sale only hurts content producers.
Prof. Susan Crawford has an interesting post on empirical studies of primates and economic behavior (Chimps and Copyright). She speculates on what the studies might show and the consequences for the copyfight:
I had a fine time this past week listening to the chimp and brain studies in particular. (We law professors have terrible graphics.) This gets interesting when intangible "property" is being examined. Do humans have an instinct to uphold property, but perhaps not to uphold intellectual property [PDF] in the form of bits? Does this suggest that efforts to perfectly enforce tech mandates that hobble machines may be not only unconstitutional (because they give no opportunity for fair use) but also inhuman? [link in original]
The Inquirer has an interesting story about a Danish company that is providing internet porn subscriptions (after office hours use only) for its employees (Danes permit office p0rn):
Danish Broadcasting's DR Nordjylland reports that the company's director, Levi Nielsen, believes that access to p0rn is a natural fringe benefit for workers, like a free phone or a company car.
Perhaps, as usual, the marketing and distribution of porn is leading the way for the marketing and distribution of other media goods. I've always thought that providing music subscriptions as a fringe benefit to employees would make an awful lot of sense. In particular, it would make great sense if there were a voluntary blanket licensing agreement.
Tax benefits for the employer, large guaranteed income base for the copyright holders. Seems like a win-win to me. After all, the pornographers probably benefit from the Danish company's scheme, since the employees searching for porn were probably looking for free porn.
Caveat: Actually, I'm somewhat skeptical of the story, but who knows?
Rent seeking for copyright holders. They don't have to bear the costs of the lawsuit, the government does it for them.
Deflects bad publicity from copyright holders. People may feel that lawsuits brought by the government are more legitimate than lawsuits brought by a cartel.
Wiretapping. The government can use wiretaps to investigate copyright infringement - something that the RIAA can't do. This means that the government can go after downloaders and can more easily prove their case against uploaders.
Double jeopardy (well, not technically, but the principles are similar). The government gives the RIAA a much bigger stick to use. After the government has sued an infringer, the copyright holders can still bring another civil lawsuit for the same infringement for at least for 3 more years.
All my original comments on how the law is likely to be unconstitutional are still valid, but I have some new issues with how the bill is being sold:
Sen. Kevin Murray, D-Culver City, said his legislation would enable law enforcement to use the addresses to track down people who violate copyright laws by illegally distributing copies of commercial films and recordings.
Yeah ... that is going to happen. If you are illicitly distributing copyrighted content you aren't about to go advertising the fact. Sen. Mickey MouseKevin Murray might as well introduce a law requiring "true name and addresses" on all notes from bank robbers. Why not be honest, Senator? This bill allows California law enforcement to go after copyright infringers when they otherwise could not and, additionally, allows the copyright industry an even bigger legal threat (jail time) to hold over filesharers.
The hearings were held by arch-conservative Rep. Lamar Smith (R - Tx), who chairs the Subcommittee on Courts, the Internet and Intellectual Property of the Judiciary Committee. Rep. Smith is normally a proponent of strong copyright laws, but finds the expansive view of copyright conflicts with his censorious desires here (Smith's Opening Statement): "Just as the author of a book should not be able to force me to read that book in any particular manner or order, a studio or director should also not be able to use the law to force me or my children to watch a movie in a particular way."
He almost sounds like a Copyfighter (even stopped clocks are right twice a day). Read more about the opposition...
Nearly three weeks ago a couple of posts on Copyfight noted that Governor Schwarzenegger's personal lawyers had sent a cease and desist letter to Bosley Bobbers, maker of fine bobble head dolls (including numerous political caricatures), for marketing a bobble head likeness of California's highest state official. Now, the New York Times reports that the Governor has not backed down and a lawsuit has been filed (Schwarzenegger Files Suit Against Bobblehead Maker). What part of the word "parody" does Governor Schwarzenegger not understand? One of the wonderful things about democracy is that we are able to ridicule and belittle our politicians. When politicians wield so much power it is a good thing to keep their egos somewhat in check with humorous renditions of their features. I see little reason why a 3D spring-mounted bust should receive less First Amendment protection than a political cartoon.
One common response to the RIAA's legal campaign against P2P uploaders is that filesharers will simply move to darknets where the RIAA's spies won't be able to follow. There is something to these arguments. The smaller a darknet, however, the more difficult it will be to find more obscure files. Thus, there will be growing pressure for the users to either opt for a legitimate download service which has convenient access, or to grow the darknet. Unfortunately, the bigger a darknet gets the less manageable it becomes and the easier it is to compromise.
Steve Linford of Spamhaus said spammers know this [that their "private" forums have been infiltrated] already but they don't know who amongst their number is working for the other side. In theory the members-only forums of these sites is accessible only by invitation and only to individuals who have a proven track record in spamming.
One would think that spammers would have a significant interest in protecting their networks from compromise. After all, from the report it sounds as if many spammers are engaging in many legally questionable tactics. Yet the "private" forums were still infiltrated. How much easier will large darknet filesharing networks be compromised?
Darknets for filesharing without fear of lawsuit can work, but only if they remain among small groups of friends known to each other. Once a darknet grows beyond a small group of people known to each other, they become ripe for infiltration. It is between the inconvenience and administrative costs of darknets and the current, excessive price of legitimate downloads that the P2P filesharing answer will be found.
I've always wondered how the heck the music industry has made so much money on ringtones (currently, a $3 billion market). Typical charges are $1-$3 for a 30-second snippet of a song that plays poorly on your phone while you can get a high quality version of the whole thing for $0.99 on iTunes. Well, as I suspected, that business model is coming under threat.
The Los Angeles company's $15 software, sold online, allows anyone with average computer skills to take an MP3 file or favorite CD track, trim it to create a 30-second ringtone and send it to the phone with the press of a button -- just like a text message.
Reactions to the software are mixed (which is an improvement from the likely reactions 5 years ago). Some music distibutors see the software as a marketing tool, others worry that it is cutting off a digital revenue stream just as it is taking off. Cell phone companies also have a mixed response with some blocking user-created ringtones while others don't worry about it much.
Despite the mixed response, I wonder if music distributors are really ready to forgo a potentially "massive" market. I wouldn't risk serious money that a lawsuit against the service won't eventually be launched.
The former video clerk turned superstar-filmmaker said that he had bought bootleg copies of old, hard-to-get films in New York to help recreate scenes in his blockbuster "Kill Bill", the second part of which is being released in many countries.
So, not only does Tarantino admit to benefiting from the fruits of infringement, but he is also admitting copying of scenes from various films. If he wasn't making so much money for Hollywood, the MPAA would certainly be sending the Deadly Viper Assassination Squad after him.
Tarantino would also be guilty of encouraging film piracy in China: "In the case of China, I'm glad they're pirating it. In a closed Communist country I'd rather be seen than not seen," he said.
A pair of UC BerkeleySIMS (School of Information and Management) students (Bill French and Parker Thompson) have, for their masters' degree project, developed new P2P music sharing software called, Trifecta. The subtitle of their project, "Creating P2P Software that Enables Fair Use," shows that this is not simply an engineering project, but a legal one as well (as befits students of Pam Samuelson). The software is described thus:
Trifecta allows users to lend and stream sound recordings to friends and other personal acquaintances, two uses that we maintain are fair because private, noncommercial sharing and performance are consistent with the rights afforded to consumers by the first sale doctrine and the right of private performance.
The actual design is more nuanced than that brief description, but the basic concept is that neither the people providing the software nor the people running the Trifecta client could be successfully sued by the copyright industry. Read the paper: Trifecta: Creating P2P Software that Enables Fair Use [PDF]. A download of the application is "coming soon."
I liked what I read in a brief skim of the paper. Whether the system actually provides full legal protection is subject to debate (I, of course, think it should be legal when used as intended). Of course, there would be ways to subvert the intention of the project, but why bother since much more open P2P systems are already out there?
Frankly, I'm glad that Lessig hasn't seen the argument put that way before. The image features a copyright logo that is clearly reminscent of the Nazi flag. If that was too subtle to make the point, the image also features a photo of a Nazi book burning. I assume that Lessig accidentally overlooked these aspects of the image and focused on the text.
I don't like currrent copyright law. I think current copyright law does a great disservice to culture. However, I don't think that the people on the other side of the argument are the cultural equivalent of Nazis. I also don't think the copyright debate needs to sink into another iteration of Godwin's Law.
Today premieres the new Mary Kate and Ashley movie about the Manhattan misadventures of a pair of twins with dissimilar characters, New York Minute. According to the marketing campaign, hilarity ensues.
Every formulaic comedy needs an incompetent antagonist and New York Minute has two. There is the excellent Eugene Levy as a truant officer obsessed with catching one of the twins. Of interest to Copyfight readers, however, is the other adversary, a Chinese gangster. Why is this criminal after the twins? According to the review in the Hollywood Reporter, the gangster seeks a microchip the girls accidentally acquired (Review: New York Minute):
It's interesting to track what constitutes villainy in Hollywood movies today. Whereas once villains were bank robbers, drug dealers, white-slave traders, psychotic losers and abusive husbands, this movie's villains are intellectual property thieves as the microchip contains pirated music and movies.
What, then, is the motivation for the movie companies? Why are they expending their political capital on a measure which would not benefit them? If they don't think the BF is going to reduce the quantity or quality of piracy, then I don't see why they would be pushing it so hard.
These are pretty good questions. I don't believe that DRM can be successful in keeping widely distributed content off the filesharing networks. If I'm right, and content owners aren't simply dumb (they're not, or at least not entirely), then why do content owners continue to push DRM? Take Apple's iTunes ... please (ba-dump-bump). Everybody knows that every single song on iTunes is available for free via P2P. Every single one. Why then have DRM at all? It certainly isn't adding value. There has to be a good reason ... and there is. Read on for my answer ...
Then there's the situation with digital rights management, or DRM, these are the protections built into legally sold digital tunes to prevent infringement. But one problem of DRM has nothing to do with piracy. Because different online stores use different DRM schemes, sometimes legally downloaded songs won't work on all playback devices. For instance, the songs you buy from the iTunes store work on only one music player, the iPod, because Jobs refuses to license Apple's protection schemes to others. Can you imagine if the CD you bought from Tower Records only worked on your living-room stereo but not in your car? You'd think that the music labels would want to fix this, but according to Jobs, during the renegotiation the issue of compatibility never came up. Who's looking out for the consumer?
The free exchange of knowledge and information enabled by the public domain is being threatened by proposals in many international forums, including the World Intellectual Property Organization (WIPO). One of the major difficulties of protecting the public domain against these threats is that the positions of national representatives in these international forums are unknown, even to citizens of the country they represent. We want to change that.
This questionnaire is being used by volunteers to collect information about national positions on the proposed WIPO Broadcasting Treaty. The results you collect will be posted on the Web so that citizens in your country and around the world can act appropriately to protect the public domain.
The questionnaire makes it quite easy for volunteers to send mail or email queries to their governments, or even conduct an interview over the phone. Go to it!
Last week, I advocated that the RIAA go on the offensive against commercial filesharing networks, such as Sharman Networks, in innovative ways that don't include more lawsuits, such as reverse engineering Sharman's interface and networking protocols and publishing them on the web. Additionally, I argued that the RIAA should provide legal support to projects that were being legally threatened by Sharman Networks for interfacing with Sharman's networks (One Way for the RIAA to Go on the Offensive).
The problem with this strategy is that the RIAA is threatened both by commercial and non-commercial file sharing activities. The RIAA's problem is not Sharman, it is file sharing in general.
For the RIAA to give money and support to non-commercial file sharing would be cutting their own throat. Even if they succeeded in driving Sharman and other commercial operations out of business, they would have done so by making it even easier for people to engage in illegal file sharing than it is now.
Ed Felten continues his series on the recent Speed Bump conference at the Berkman Center with a discussion of some guidelines for designing efficient government regulations to support stopgap security measures (Regulating Stopgap Security). After pointing out a series of suggestions for making such regulations as effective as possible without unduly burdening technological progress, Felten concludes:
By this point, alert readers will be thinking "This sounds like an argument against the broadcast flag." Indeed, the FCCs broadcast flag violates most of these rules: it mandates one technical approach (providing flexibility only within that approach), it creates compatibility barriers between compliant and non-compliant devices, and it shifts the long-term cost of compliance onto technology makers. How can the FCC have made this mistake? My guess is that they didn't, and still don't, realize that the broadcast flag is only a short-term stopgap.
Felten is certainly right that the broadcast flag violates all of his useful suggestions for regulators. He is mistaken, however, in believing that the FCC doesn't realize this "error." Read on...
In the last paragraph of the C&D, the governor's lawyer claims that:
This is a confidential legal notice and may not be published, in whole or in part. Any republishing or dissemination of same, including but not limited to the posting of the contents hereof on the Internet, shall constitute a copyright infringement and will subject the re-publisher(s) to civil liability for such actions.
Yeah, right. I dare them to take me to court for publishing that. Lawyers really tork me off sometimes. Thank god for websites like Chilling Effects.
As I noted in an earlier post (The Best Defense is a Good Offense), if the RIAA really wanted to put filesharing networks like KaZaA out of business, they should hit them where they are vulnerable.
The threat against KCeasy is an obvious example of where the RIAA can strike at KaZaA. The RIAA should be leading the way in reverse engineering KaZaA's interfaces and Sharman's FastTrack protocols and publishing them widely. The RIAA should also be providing legal support to the KCeasy's of the world.
Maybe the RIAA will win the Grokster lawsuit (hopefully not), but even if they do, the decision will only direct the next generation of filesharing software developers in how to program around the law. If the RIAA loses the Grokster lawsuit, then what?
They still go after Sharman by doing what Sharman doesn't like. For example, the RIAA could provide legal and technical assistance in developing KaZaA Lite (adware-free alternative KaZaA software). How many lawsuits can Sharman afford? How much competition can they really handle?
MasterCard sued perennial presidential candidate Ralph Nader for trademark violations when Nader's campaign parodied MasterCard's famous "priceless" advertising campaign. Rightly, the case was dismissed at summary judgement. Of course, the MasterCard decision was a trademark case. In "Trump Fires Bush" actual footage from "The Apprentice" is used, raising a number of copyright issues.
Although I think there is a clear fair use defense of parody ... I can imagine a judge declaring that the use of NBC's footage is actually satire, which doesn't get a fair use defense.
In any case, Felten has three suggestions for stopgap designers:
[Y]ou should look carefully at the lifetime cost of each stopgap measure, compared to the value it will provide you.
[R]ecognize that when the adversary adapts to one stopgap, he may thereby render a whole family of potential stopgaps useless. So don't plan on rolling out an endless sequence of small variations on the same method.
[R]emember that the adversary will rarely attack a stopgap head-on. Instead, he will probably work around it, by finding a tactic that makes it irrelevant.
Well, my first thought based on these guidelines was that the RIAA was hosed. In the long run, attempting stopgap measure after stopgap measure is inevitably doomed. As Felten says, "there is no good solution" in the copyright owners' war on P2P infringement.
This article suggests that the main challenge for 21st century copyright are not challenges of authorship policy, but rather new and harder problems for copyright's communications policy: copyright's poorly understood role in regulating competition among rival disseminators. [emphasis in original]
Read the whole thing. It is a rich look at an extremely valuable way of considering copyright law.
Wu calls them disseminators, I call them distributors, but we both recognize their importance to copyright law. If, as I argue, copyright is about distribution, then it really makes sense to view copyright as communications policy (which is also about distribution) (It's All About the Distribution, Stupid).
Ed Felten has the first report (unfortunately, I wasn't invited) that I've seen on the Berkman Center's Speed-Bumps conference (What is a Speedbump?). Apparently there was legitimate disagreement over what, exactly, a speed bump for digital distribution is. Felten rightly faults one vision of speed bumps, but I believe his alternative definition is also too broad. The faulty concept:
One vision of speedbump DRM tries to delay the leakage of DRM'ed content onto the darknet (i.e., onto open peer-to-peer systems where they're available to anybody). By delaying this leakage for long enough, say for three months, this vision tries to protect a time window in which a copyrighted work can sold at a premium price.
As Felten explains, this vision (usually associated with DRM) is unworkable. I've written more on why it makes little sense here (Speed Bumps on Your Car)
"Vendors such as Creative, Archos, Dell and Apple have all created hard drive music players that can hold up to and beyond 5,000 songs," the report states. "Hard drive players with such large capacity for content go above and beyond not only the music that most consumers want on their portable music player, but also beyond the digital music that they own."
In other news, Jupiter will apparently come out with reports concluding that, for computers, "640K of memory should be enough for anybody" and that, for transportation, "the human body was never meant to exceed travel at more than 30 miles an hour."
WAVE-TV paid the Kentucky Derby Festival $50,000 for exclusive broadcast rights to Thunder in a bidding process that three of the four major Louisville stations participated in.
But WHAS-TV, which had been the "official" Thunder station for several years, was outbid. It later announced it would broadcast the event without a contract, contending that Thunder is a news event on public property open for anyone to see, including its cameras.
The copyright issue raises many interesting questions, especially in an era where cameras are almost universal accessories. Of course, the case that seems most on point is not exactly a copyright case, but involved the right of publicity for a human cannonball perfomer. Zacchini v. Scripps-Howard, 433 U.S. 562 (1977).
The whole point of DRM technology is to prevent people from moving music usefully from point A to point B, at least sometimes. To make DRM work, you have to ensure that not just anybody can build a music player -- otherwise people will build players that don't obey the DRM restrictions you want to connect to the content. DRM, in other words, strives to create incompatibility between the approved devices and uses, and the unapproved ones. Incompatibility isn't an unfortunate side-effect of deficient DRM systems -- it's the goal of DRM.
A perfectly compatible, perfectly transparent DRM system is a logical impossibility. [emphasis in original]
The RIAA, MPAA and other copyright organizations frequently talk about how there needs to be more education about copyright in the schools. Unsurprisingly, their idea of "education" doesn't really include much about fair use and other limitations on copyright. Creative Commons shows how copyright education at schools should be done (School of Rock).
However, while Felten's generational distinction is an important one, I'm not sure his theory fully explains what is going on. The main problem I see is that Eric Boorstin's thesis (Music Sales in the Age of File Sharing), which found that internet access correlates with increased music purchases for older people but decreased music purchases by younger people, isn't really about file sharing per se. The disconnect here is that there is no data for the correlation between filesharing and internet access.
To experience it, viewers need to get a copy of the first Harry Potter movie and watch it with the sound off, replacing Neely's narration with the original soundtrack.
Sounds easy, but you have to download (straight-up, no .torrent) about 140 MB of data, burn two standard CDs and then carefully start them to synch with the video. Why can't DVD players make such annotations easier? Oh, that's right, Hollywood doesn't like creative innovation they can't control.
Of more interest here, though, is the copyright history they've dug up on Hammett and his early works (Jailed in '51):
Anyway, in '51, Dash came up on the wrong side of the House Un-American Activities Committee, went to jail for refusing to name names, and because of some IRS difficulties, couldn't collect on royalties for previous or new works.
1951 was roughly 28 years after Dash's stories first began publishing. Prior to passage of the '76 Copyright Act, 28 years was the standard renewal period. Guess who was too busy to renew? (And no, Ms. Hellman doesn't get involved until after Dash's death, nor Mr. Cowan... nor anybody else for the stories I'll be adding. Prior to his death, Dash took care of his own renewals on such works as Poisonville, The Maltese Falcon, Thin Man, etc.) [Links in original.]
Increasingly, cable companies are getting into the business of Personal Video Recorders (PVR), integrating them into the cable set-top box. While in many ways convenient for the consumer (one less electronic component, potentially less expensive, never have to worry about recording the right channel), a worrisome potential for control over the viewing experience remains. If the cable company gives you the PVR, they will likely retain the ability to modify how you are permitted to use it. EE Times reports on one possible example of this with regard to integrated DVD recorders (Set-top boxes may put a lid on rewritable DVDs):
The current scheme under discussion is preventing disks made on a set-top burner from being played on any other system by linking the content to the serial number of the set-top using triple DES encryption.
Yesterday, Prof. Susan Crawford gave a talk to the Copyright Office (part of a program called The Copyright Office Comes To New York [PDF]), in which she critically discussed the broadcast flag, the DMCA, and state encroachments on copyright (Copyright Office talk). Read the whole thing. Being that yesterday was April Fools, let's hope the Copyright Office doesn't take her talk as a joke, as the Office has so often seemed to take other criticisms of copyright maximalism.
... a group weblog featuring pointers to news articles and weblog posts that spark the interest of EFF staff members. We aim to provide a bit of on-the-fly commentary to help contextualize issues, as well as links to useful background resources.
The topics we'll be exploring include intellectual property, privacy, free speech on the Net, technology and Internet architecture. The central questions driving these explorations: How does a particular development affect our rights? And how will it impact our future?
Mini Links is "a byte-sized companion to Deep Links."
Both have RSS feeds, of course, and there is already some quite good content on the sites, including this bit of history from Fred von Lohmann, The Wicked Player Piano, pointing out John Philip Sousa's misguided support for a copyright bill that would have given copyright owners monopoly power over player pianos and anything that reproduced sound.
This certainly looks real, and even if it isn't, the growing inexpense of storage means that it will be true eventually, probably sooner rather than later. I could say all sorts of things about what this means for the market and communications, but this is Copyfight, so let's talk about IP.
Bonus: Many such uses [of remixed culture] in a campaign would be classic examples of fair use both as political commentary and parody. Copyright law would have a hard time stopping such uses.
Apparently, former White House counterterrorism chief Richard Clarke doesn't read Copyfight, as this AP wirestory published an SFGate.com demonstrates (Clarke asks anti-Bush group to pull TV ads with his criticisms). Clarke isn't sure of his legal ground, but he wants everyone to know he is unhappy how his words are being used. Of course, CBS isn't too happy with Moveon.org "using CBS News copyrighted material without permission and to advocate a point of view." Too bad. Get used to it. Welcome to the world of Rip, Remix and Vote.
Expect to see agenda-laden Flash games, spoofed websites and commercials, George Bush verbal blooper tapes, videos of John Kerry debating himself, and nasty-funny creations of all types, from supporters of both sides (or all three, if you count Nader).
The Korea Herald has a rather disturbing story to report with regard to innovation in Korea (Music industry emits static on MP3 phones). Apparently, developers of cellphones in Korea have begun adding MP3 capability to the small, ubiquitous, portable devices. An obvious enhancement for cellphones, I would think. However, the Korean equivalents of the RIAA were upset by this and have essentially forced Korean cellphone manufacturers to reduce the quality of playback for non-DRM'd music:
After fierce debate over the new mp3 phone, the two parties have found some common ground by agreeing that MP3 phones can play illegal music files, but only at low sound quality.
....However, the controversy is still raging with Samsung Electronics insisting that record producers should eventually let them have at least 96kbps.
Hopefully, the RIAA won't try something like this in the States.
The Scotsman, "Scotland's National Newspaper," is all shook up about the sad tale of a backwater Scottish town that believes it is the birthplace of Elvis Presley's forefathers (When Copyright is King). The town thought to attempt to promote itself as a place of pilgrimage for the King's fans. Unfortunately,
Within 24 hours of the discovery, Elvis Presley Enterprises had issued a reminder that it owns all the intellectual property (IP) rights in his name, his image and his songs, including the trademark of the very words Heartbreak Hotel.
The article goes on to detail how tightly EPE controls the King's copyrights, trademarks and right of publicity (for someone 26 years dead).
Infringements of our copyright does not include where bloggers quote from and link back to our original story, or where sites display a headline and link back to reuters.com. We are very comfortable with these practices.
Jeff Jarvis has an excellent idea for another use of Larry's work - the annotated version (Free debate). Those familiar with my writings know that I am a huge fan of annotations, which I also call recipe files or client-side remixes. Jeff asks,
But wouldn't it be great to take a book and break it open at the spine for some back-and-forth?
Why not turn a book into a conversation?
Why not, indeed? Lessig would certainly favor such a concept, I believe. And if he didn't, too bad, the book is already licensed for such a thing. Poor arguments can be pointed out, but so can additional evidence on behalf of particular arguments. In a way, Solum's work is a step in this direction. Who will be the first to add Solum's book club to an edition of Lessig's book? (I don't see a license on your blog, Solum, is that okay with you?) Wouldn't it be great, also, to append all the reviews, negative and positive, as well as Lessig's promotional interviews to the book for easy future reference?
Jeff also notes that many other books would benefit from such annotations. Of course, some of the authors Jeff cites as being chief beneficiaries, such as Ann Coulter or Michael Moore, probably wouldn't like to have their books torn apart like that.
I want to clarify that my analysis had very little to do with bloggers who copy headlines. Frankly, I'm one of the few bloggers who almost always uses the titles of stories and posts when I link to them. Look at the above paragraph, through my archive here, Ernest Miller at Copyfight, or my personal blog The Importance Of .... To the extent that I implied bloggers would not get a different analysis, "perhaps," I was expressing my cynicism about the courts and copyright.
As I note in comments to Wendy's post, bloggers are almost certainly situated differently than the case that was apparently decided in Japan. A fair use analysis of a blogger copying newspaper headlines would almost certainly be found to be a fair use. Without going into all possible details, for example,
1) What is the character of the use?
Goes for the defense. Blogging is almost always an example of a core fair use, such as criticism, comment, news reporting, or teaching, and is frequently part of scholarship and research. For most bloggers, the use is also non-commercial.
2) What is the nature of the work?
Goes for the defense. First, there is a question as to what the work is. Generally, bloggers are commenting on the article of which the headline is a title, not simply the headline itself (though sometimes that happens too - see, Wonkette Gay Marriage: Way to Drive the Point Home). This is unlike the case in Japan in which one could argue that it was the headlines themselves which were being used as the content. In the case of the headline as title, the copyright is virtually nonexistent.
3) How much of the work is used?
Goes for the defense. Again, generally the work will be the article, not the headline. The headline is a very small part of the article. Unlike the case in Japan where the headlines were being used as content and the entire headline (numerous headlines) were being copied.
4) What will be the effect of the use upon the potential market for or value of the copyrighted work?
Goes for the defense. Generally, the market effect of commentary and criticism is not really relevant.
Also, as Wendy points out, if a blogger is posting an RSS feed of headlines on their webpage, the fact of the RSS feed indicates an implied license to use them. I'm working on a longer posting about RSS and copyright, but bloggers shouldn't feel chilled to copy headlines for their blog. On the other hand, I still wouldn't feel confident advising a commercial portal to feel entirely free of liability in stripping headlines from a newspaper that told them to knock it off.
The answer, according to tunA is an enthusiastic "yes"! I apparently missed the news of this fascinating new software application when it first became public late last year, but I really think this is an innovative and cool idea. According to the project's home, Media Lab Europe, tunA,
is a mobile wireless application that allows users to share their music locally through handheld devices. Users can "tune in" to other nearby tunA music players and listen to what someone else is listening to. Developed on iPaqs and connected via 802.11b in ad-hoc mode, the application displays a list of people using tunA that are in range, gives access to their profile and playlist information, and enables synchronized peer-to-peer audio streaming.
Social sharing of music with strangers without disturbing people around you. How cool is that? It could certainly make the morning commute more interesting or add some spice to cubicle life. People complain that walkmans isolate people from their environment. Now walkmans can help people connect to others.
The next step: using e-ink digital readers to virtually read over other commuter's shoulders.
Dan Gillmor, a fellow I generally agree with, has written a pean to the decades-long president of and lobbyist for the MPAA, Jack Valenti, who is soon to retire (Valenti, Right and Wrong, Is a Man to Respect). Gillmor's article finds much to admire in the man, finding him a fervent defender of the First Amendment and personally charming. That I grant, but much of the characterization is over the top.
Apex Digital, makers of famously inexpensive DVD players ($30!), has just announced the final specs for its soon-to-come, potentially revolutionary new PC Game Console/DVD player/PVR (Apex Digital Finalizes Spec for DVD Player/PC Game Console). This will be the first major consumer device that really pushes convergence to the current, practical limits and, at a suggested retail price of $499, it seems pretty well-priced. It may not get everything right (first generation devices usually don't), but who knows? See the product home page (which hasn't been updated with PVR information): ApeXtreme - PC Game Unit / DVD Player.
What might make this device especially cool for copyfighters is that APEX devices have also been famously hackable (Apex/Hiteker DVD Hacking Pages). How hard will it be and how long will it take for hackers to figure out a way to do all sorts of cool things with the capabilities this device has? How long til someone gets the device running Linux or ports MythTV? I know I'll be eagerly waiting.
Jeff Jarvis had a very interesting announcement on his blog yesterday, he is hoping to start a "Center for Citizens' Media" at a university, possibly NYU (The Center for Citizens' Media). The basic idea is to create an institution where bloggers and traditional journalists can share ideas and educate each other:
Citizen journalists can benefit from education in some of the tricks of the trade (e.g., how to avoid libel, how to file freedom of information requests, how to write a killer lede). I'm not saying that bloggers need to be like big-media journalists but I am saying that media must to embrace this new wave of journalists.
Journalism students can, for the first time in history, think and act like entrepreneurs (see Gawker, Gizmodo, Engadget). They can use weblogs to create a body of work that will get them hired. They must learn how to interact with their publics in new ways.
Big media needs to learn how to interact with and serve and, most importantly, listen to the citizens formerly known as their audience.
News sources -- in politics, government, business -- need to learn how to relate to citizens who can now, finally, speak to them.
This is a great idea ... and I'm not just saying that because I hope the Center keeps me in mind when they start hiring (IP/Free Speech Knight Foundation Blogger-in-Residence, yeah, that's the ticket). Seriously, the four constituencies Jeff identifies are important ones and would certainly benefit from institutional support. For many reasons I think the last two may require more formalized, academic-style support than the first two. All those institutions concerned about the future of US media should seriously consider Jeff's proposal.
Apparently there has been some grousing that the free, downloadable version of Larry Lessig's new book, Free Culture is in a proprietary format, namely PDF. Larry responds to the criticism here: Free Culture Followups. He makes the obvious point that the book has been released in one of the most free of the Creative Commons licenses, attribution, non-commercial, which means that anyone can port the PDF to another format as long as they leave Larry's name on it and aren't selling it.
Well, someone has already taken advantage of the license. Blackmask, an excellent source of free, online books (I dig their pulp fiction collection - the genre, not the movie), has ported Free Culture into other formats.
The agenda for Thursday's U.N. meeting includes a discussion titled "Accumulated Concerns, Perspectives, and Exploring How We Can Cooperate." Domain names, technical standards, network security, intellectual property, privacy, e-commerce, free speech, taxation, and "cultural and linguistic diversity" also are listed as topics for discussion.
I try not to be paranoid, but the concept of the UN deciding issues related to free speech sends shivers down my spine. And I'm not too confident about giving the UN more purview over the other issues either.
One could argue that the copying was "de minimis." This is a copyright doctrine which is based on the adage, "the law does not concern itself with trifles," meaning that very small or insignificant amounts of copying don't really count. The law here isn't very clear, but I don't think this defense would fly in this case. It might fly for a headline here or a headline there, but routinely copying every headline is probably not de minimis.
This leaves that old standby, the fair use defense. Without going into an exhaustive discussion, the four factors:
1) What is the character of the use?
Not a good one for the defense. This is pretty obviously a commercial use by the internet service firm. Might be different for a blogger, perhaps.
2) What is the nature of the work?
Probably goes for the defense. Generally, copyright infringement for phrases is pretty thin. The shorter the phrase, the more difficult it will be to distinguish the idea from the expression, especially as the headlines will be tied to some factual circumstances. Unless the headlines are routinely highly imaginative, they most likely tend much more towards the factual.
3) How much of the work is used?
The amount taken and the length of the headlines will be a major, though likely not a decisive factor. It will probably go in favor of the defense.
4) What will be the effect of the use upon the potential market for or value of the copyrighted work?
This will be the critical factor, as usual, I think. I could see it going either way. Even though the headlines would be more likely to spark interest in the full articles and send traffic to the newspaper, there is probably a market for a headline syndication service.
"Apple's (market) share will go down if they continue to do this. The only way to presently put songs on an iPod is to (buy) them from iTunes," Glaser said, referring to downloads purchased from online music stores.
Of course, Real fails to note that iPod supports non-DRM'd MP3s. How about that?
Doesn't anyone get that the ongoing DRM Babel is only slowing market adoption and doing very little to inhibit piracy? And, oh yeah, even if one proprietary DRM scheme does manage to dominate the market, are copyright owners really going to be better off with some technology company that has a stranglehold on one layer of the distribution stack?
Larry Lessig's new book, Free Culture, is going to be released next week and the reviews are starting to come out. Unfortunately, Larry didn't see fit to send me a review copy (hint, hint) so you won't get my take on it until I have a chance to read the free online version when it is released (and reading books online is a pain). Ah, well. The first review was an extremely negative (and clueless one) from Forbes (reg. req.) (The Trouble With Larry). Larry responded here: Talkback: Manes. Now, the Washington Post (reg. req.) has a professional reviewer take on Larry's latest (Copyrights and Wrongs: Damming the Flow of 'Free' Information). This is a real book review and will help the decision-making process for those who, for budgetary or other reasons, aren't sure they want to buy it.
via JD Lasica, who promises his review within a week
All the original research articles in journals published by BioMed Central are immediately and permanently available online without charge or any other barriers to access. This commitment is based on the view that open access to research is central to rapid and efficient progress in science and that subscription-based access to research is hindering rather than helping scientific communication.
The more important news is that Creative Commons is launching what may eventually be a sister organization that will focus on the sciences (Science Commons). Work will not be limited to copyright, but "will delve into both legal areas (patents, data) and subject matter (biomedicine) outside the scope of our current organization." All I can say is, "wicked cool." If you have talent and experience in these areas ... they're hiring: Job Announcement: Science Commons Executive Director.
The change would make it legal for someone who owns a legitimately obtained CD to make one copy for their own private use. Under the widely flouted current law, all copying, even for personal listening, is banned.
There are some interesting quotes from major members of the recording industry in NZ:
Sony NZ managing director Michael Glading said he was totally opposed to the move, which he believed would "open the floodgates" to unrestricted piracy.
No reference to serial killers here, but alarmist nonetheless. And what planet has Glading been living on? Hello ... P2P filesharing ... gates already open ...
"At the end of the day, you're sending a message that it's okay to copy, and that is going to kill our business. It's taking away people's rights to earn a living, and that's horrendous."
They just don't get it. By trying to prevent all copying, copyright maximalists undermine copyright law as a whole. Personal-use copying causes no harm, but is extremely convenient for the consumer. By making regular consumers into copyright criminals for personal-use copying, overall respect for copyright is substantially diminished. The same thing is happening with file sharing. By claiming that all file sharing is bad, even with close friends and family, copyright maximalists are hurting their own cause (Share with Friends, Not Strangers).
He [Glading] said the proposal was inconsistent. "They're not saying it's okay to copy Lord of the Rings from one DVD to another, but it's okay to copy Brooke Fraser from one CD to another. It's farcical."
Well, you know, he does have a point. Of course, I can't imagine this argument being made by a US recording industry leader except ironically. Still, this argument would only seem to point the way towards a general right of personal use copying. After all, NZ law already provides for backup copies of computer programs.
One of the interesting aspects of copyright law is that you cannot be guilty of copyright infringement if you independently create the exact same work. This doctrine of "independent creation" means that if I write a song autonomously that is the same as a song someone else wrote, I can make as many copies of my independently created song as I want without infringing the copyright of the other person's song. Of course, in practice, things aren't that easy for those who want to raise a copyright infringement defense of "independent creation." The fact that one work is very much alike, or even identical to another, would likely give rise to an argument of "probative similarity" or "striking similarity." Either of these would have a tendency to shift the burden of proof to the defendant to show that they could not possibly have copied the allegedly infringed work.
I recently came across an example of what seems to be a case of "independent creation" in which it would likely be possible to find experts who would see "striking similarities" between the two works (The Strange Synchronicity of "The Last Breakfast"). The two works are both parodies of Leonardo Da Vinci's famous fresco The Last Supper. Instead of the last "supper" the parodies depict the last "breakfast." Each uses common breakfast trademarks:
The similarities are incredible. Both pictures have Captain Crunch as Judas, both have Snap, Crackle and Pop, The Trix Rabbit, Tony The Tiger, Lucky The Leprachaun and the Quaker Oats Man. Both have Aunt Jemimah, although Aubrey's painting has her as the Christ figure while Detzner's has Mrs. Butterworth in that role. Still, it is amazing both have a female advertising icon in the center.
Coincidence? According to the artist of the temporally second work, yes.
It's only a certain desire for euphony in the suggestiveness of our otherwise arbitrary marks that makes us think we need certain names for our services. I look at language and I see something adaptable and fluid. I'd rather ask our natural talent for creative wordplay to carry a little more water and cause a little less disruption by evicting incumbent registrants from their domains.
C|Net News' Declan McCullagh reports on a potential ".XXX" top level domain (The battle over triple 'x'). Though such a domain would probably be a good thing (the more TLDs the better, I say) the real problem is that governments (including the US) might require adult websites to use the ".XXX" domain, which has obvious implications for freedom of expression.
And be ready for Sony to move to the domestic market soon enough, bringing more incompatability fun with it. I thought Sony was working with Phillips on DRM that anyone could license - a Phillips executive even said: "The electronics industry recognizes that Microsoft is a formidable player, but consumer electronics makers do not want to become dependent on Microsoft. They need an interoperable and independent system, DRM is an accelerator which will boost digital sales of media, because it will convince media companies their content is protected. It should not be a competitive weapon." Sony doesn't seem to actually buy that. They're trying to set the standard, and they want control over the devices.
So here I am, downloading through various torrent apps, various music torrents, all probably illegal. My first day, so I've learned the ropes, a little, and already blocked Sony North America, The Australian Broadcasting Corporation, RIAA and some others, I didn't recognise late last night. They were scanning my torrents, looking down my ports, or trying to.
Of course, I'm still sort of wondering why we haven't seen many DMCA notice-and-takedowns for BitTorrent seeding sites yet.