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.
Jennifer Urban of USC's Intellectual Property Legal Clinic and Laura Quilter of UC Berkeley's Boalt Hall have released a summary report examining over 900 DMCA take-down notices collected from the Chilling Effects project. The report finds that nearly 1/3rd of all notices are improper and potentially illegal. The full report will be out in March 2006.
Want to time-shift your satellite radio? Forget about it, according to the RIAA -- they want to make such practices illegal. As I previously suggested, the real agenda of the RIAA is not just P2P, but Me2Me technologies that allow you to move music from one format to another. Check out the Reuters article (Record labels, satellite radio seen in showdown):
The record industry may next aim its legal guns at satellite radio due to a dispute involving new portable players which let listeners record and store songs, an analyst and industry sources said on Wednesday.
The record industry, led by major labels, such as Vivendi Universal' (EAUG.PA),> Warner Music Group Corp (NYSE:WMG - news), EMI Group Plc (EMI.L) and Sony BMG, believe the recording capability is a clear copyright violation and could take revenue away from paid download music services.
...
JP Morgan analyst Barton Crockett in a report suggested there might be more conflict in store.
"Based on recent talks with execs at record labels and the
Recording Industry Association of America (RIAA), we see potential spats ahead. RIAA may file a lawsuit this fall to stop a new feature for upcoming wearable satellite radios," he wrote.
Yet one more freedom we currently enjoy that the RIAA wants to take away as technology evolves.
Want to kick legal butt for the open source/free software community? Check out this new position at the Software Freedom Law Center, run by FSF's Eben Moglan and PubPat's Dan Ravicher:
STAFF ATTORNEY - SOFTWARE AND CORPORATE LAW
The Software Freedom Law Center, a newly formed not-for-profit legal
services organization that provides legal representation and other law
related services to protect and advance Free and Open Source Software,
seeks an experienced and entrepreneurial Staff Attorney with a strong
background in software for its New York headquarters. For more
information about SFLC visit www.softwarefreedom.org.
Hurray! Justice delayed ends up being justice rendered. Over a year ago, StorageTek managed to convince a district court in Boston to misuse standard copyright law and the DMCA anticompetitively and shut down an independent service vendor who offered repair and maintenance on StorageTek machines. (By doing so, StorageTek was able to leverage the vast majority of service contracts on its library units for itself.)
Today, the Federal Circuit Court of Appeals reversed [PDF] the trial court's order, holding that third parties can lawfully repair and maintain another company's software under Section 117 of the Copyright Act and, more importantly, that the DMCA cannot be used to sue such vendors when the repair and maintanence itself doesn't violate any rights under copyright law. The decision follows up on the Court's previous vindication of Skylink in its DMCA case against Chamberlain over garage door openers.
Here are some of the choice quotes from the opinion:
Brookings Institute Scholar Ben Klemens has a nice little OpEd over on BI's site about patent reform and why there is an important difference between software patents and other kinds of patents:
However, the key distinction between a drug and a method for using a computer is that few of us own the equipment or have the desire to manufacture drugs. Meanwhile, computers are ubiquitous--and as a result, so is software authorship. If you are reading this at work, there is probably someone in your building writing software right now: perhaps in the form of a company web page, or a script to make the accounting database work better. Thus, a patent on a drug creates potential liability for those companies in the pharmaceutical business, while a software patent creates potential liability for any company with its own website or software customizations, regardless of its business.
Excited to blog your click moment but can't get to it by Tuesday? Never fear, fair copyfighter, EFF has decided to extend the deadline for its Blog-a-thon by a week until August 2.
Big news. As reported by the BBC, the European Parliament has voted down the Computer-Implemented Inventions Directive, a law that would have given broad authority to the European Patent Office to start issuing US-style software patents in the EU. Rejection of this law is a huge, huge victory for innovation.
In particular, it's great to see the European Parliament realize that while software patents can spur some incremental innovation amongst coders, they often also inhibit wide adoption of new technologies, entry of start-ups into new markets, and the essential lifeblood of any network -- interoperability of programs and data. Kudos to the MEPs for standing strong on this issue in the wake of intense pressure to maximize patent protection at the expense of competition and universal access to knowledge. Kudos also to FFII, FSF, and all the other organizations that worked so hard to shed light on the true effects this misguided law could have.
A caveat: This vote doesn't outlaw software patents in the EU; it just doesn't officially sanction them. The European Patent Office will now have to decide on its own how to handle these issues, which should be interesting. Over the years, the EPO has granted some but not all software patents applied for, and has tended to do so on a haphazard basis. Hopefully, with such a resounding vote, it will curtail most if not all such grants. We'll see.
Richard Stallman has a great piece in the Guardian this week talking about the effects that software patents will have on the EU software industry, and in particular, Free/Open Source Software.
Especially effective are some examples he gives comparing software to other copyrighted works, such as a novel:
A novel and a modern complex programme have certain points in common: each is large and implements many ideas. Suppose patent law had been applied to novels in the 1800s; suppose states such as France had permitted the patenting of literary ideas. How would this have affected Hugo's writing? How would the effects of literary patents compare with the effects of literary copyright?
Consider the novel Les Misérables, written by Hugo. Because he wrote it, the copyright belonged only to him. He did not have to fear that some stranger could sue him for copyright infringement and win. That was impossible, because copyright covers only the details of a work of authorship, and only restricts copying. Hugo had not copied Les Misérables, so he was not in danger.
Patents work differently. They cover ideas - each patent is a monopoly on practising some idea, which is described in the patent itself.
Here's one example of a hypothetical literary patent:
Claim 1: a communication process that represents, in the mind of a reader, the concept of a character who has been in jail for a long time and becomes bitter towards society and humankind.
Claim 2: a communication process according to claim 1, wherein said character subsequently finds moral redemption through the kindness of another.
Claim 3: a communication process according to claims 1 and 2, wherein said character changes his name during the story.
If such a patent had existed in 1862 when Les Misérables was published, the novel would have infringed all three claims - all these things happened to Jean Valjean in the novel. Hugo could have been sued, and would have lost. The novel could have been prohibited - in effect, censored - by the patent holder.
Looks like Rush Limbaugh is a copyfighter at heart. Check out his rant yesterday about the restrictions on podcasting and CD copying:
RUSH: There are some things that we can't influence yet [in podcasting] like music because of copyright problems. I continue to hear from people. I guess this is just a testament you have to explain things a number of times. I continue to hear from people, "Well, other shows..."
I read that and I say, "Pfft. What other shows?"
"Other shows have music."
Uh, I don't know what to tell you, folks. We have a battery of attorneys here, and the battery of attorneys has dug deep, and they've given us their opinion on this and it's pretty deadlocked solid. There's nothing we can do about it because of the fact that if we included music, even snippets, that we would be effectively be distributing other people's property, copyrighted property without compensation. It's just that simple. Now some of you have said, "Well, now, if we download stream every day if we listen to the program live on the Internet we get the music there."
...
So here's what I did because I continue to get so much e-mail about music and the podcasts. I went to some of my partners and I said, "I want you to shoot me straight. Is this really a legal opinion or are you just telling me this because it's cheaper?" You know, I don't care. If it offends them it offends them. "I want to know the truth. Is this really the truth or are you just doing this because it's cheaper to do it this way?"
They were righteously indignant and offended and they said, "No, it has nothing to do with that. The cost is prohibitive." I mean there's no system set up for this kind of thing yet. We're away ahead of the curve to do this legally. I can't explain the people that are doing it in a way that we have been told is illegal, and I can't explain why they're doing it, and the fact that they are doing it does not give us the confidence that we could do it ourselves. We have a big legal team that's looked into this.
But I just want to tell you we're continually working on it, which at this point simply means monitoring developments in this whole copyright and piracy law. I know the Millennium Copyright Act is what this is all about, and until that's changed, none of this is going to change. In fact I just saw a story in my RSS reader today that Sony is coming out with a new system to copy-protect their CDs. There's software on their CDs that will allow a maximum of three dubs, three copies, and then it shuts down. So if somebody goes and buy a CD, they can copy it three times, but that's it and it's not on all their CDs. It's a new technology that they are embedding in the CDs, and of course the DVD industry has gotten even much tougher than the music industry has, but it's a huge deal and we have looked at it in every which way and that's what we have been told by the legal eagles. Whatever anybody else is doing out there is of no consequence to us. Based on what we have learned anybody else doing this is doing so at risk, and that's as much as I will say about it.
Michael Schreiber, head tech over at the United Way of America, has published a scathing editorial about the nasty impact that business method patents could have on the future of non-profit/community service organizations:
Consider what the future looks like for nonprofits operating in a landscape where activities as important and efficient as online fundraising are patented by one company or even a few companies. Nonprofits face a few scenarios, and none of them are good:
Divert a greater percentage of every dollar raised to cover license fees just to operate — money that previously was earmarked for and still needs to go to programs and services making a positive difference in the lives of constituents.
Settle for other, less effective and efficient technology solutions to avoid the higher cost of patented solutions as well as the threat of being sued.
This certainly is not how donors envision their contributions being used. Donors do care how their money is leveraged to achieve sustainable societal change.
Nonprofit organizations exist to address complex social, environmental, and educational challenges. The last thing we need is another structural impediment like business method patents that could seriously distract us from the creation of tangible and sustainable change in our communities.
Via Roll Call, an interview with Rep. Joe Barton, Chair of the House Energy and Commerce Committe:
ROLL CALL: And copyright infringement?
BARTON: Are you talking about fair use?
ROLL CALL: Yes, I'm taking about the ability of people to steal movies,
music, all that stuff. Do you think you've done as much as you can do?
BARTON: Pure copyright infringement is Judiciary and some Energy and
Commerce. I want to protect our creators, the creative talent in this
country, the movie producers and the television producers, and the
musicians. I have great respect. ... I wish I had that talent. I don't, so I
respect those that do. And anything we can do to go against piracy I'm for.
Where I'm a little bit different, I believe that [Rep.] Rick Boucher
[D-Va.]; you buy a video, you buy a CD, you do have the right to make one or
two copies for your own personal use. That's called fair use. And we've
always allowed people, under the older technologies, to make one or two
copies. The problem when you get to the digital technology is that you can
make a thousand perfect copies. So, the Judiciary Committee ... their
solution has been to outlaw the act of copying. So you just can't make any
copies. That's the Motion Picture Association ... that's their position. No
copies. And so Boucher and I's position is, let's find a way to make a few
copies and then that's it - not for commercial purposes, not for resale -
just for your own personal use. And the technology is debatable. Some people
think the technology is there to do that. The CD people are putting that
technology in their CDs. The video people have not yet agreed that they can
do it, although I think they can. So that's an in flux issue.
While supposedly backed by "[t]he research and development arm of a major automaker," it will be interesting to see how such innovations are received. Our current copyright system has nothing to accommodate such personal retransmission capabilities. Are these reproductions, distributions, or public performances? Are they fair use? Is this essentially the same as turning up your car stereo super-loud with the windows down, or is it like running your own radio station?
Interestingly, the system is currently limited to streaming, which makes it almost identical to Apple iTunes' "sharing" feature. It will be interesting to see the RIAA's reaction. Monitoring P2P networks is one thing; spying on us in our cars and on our daily commutes would be something quite different.
IT SOUNDS too bad to be true; but, then, it might not be true. Up to 35% of all PC software installed in 2004 was pirated, resulting in a staggering $33 billion loss to the industry, according to an annual study released this week by the Business Software Alliance (BSA), a trade association and lobby group.
Such jaw-dropping figures are regularly cited in government documents and used to justify new laws and tough penalties for pirates-this month in Britain, for example, two people convicted of piracy got lengthy prison sentences, even though they had not sought to earn money. The BSA provided its data. The judge chose to describe the effects of piracy as nothing less than "catastrophic".
But while the losses due to software copyright violations are large and serious, the crime is certainly not as costly as the BSA portrays. The association's figures rely on sample data that may not be representative, assumptions about the average amount of software on PCs and, for some countries, guesses rather than hard data. Moreover, the figures are presented in an exaggerated way by the BSA and International Data Corporation (IDC), a research firm that conducts the study. They dubiously presume that each piece of software pirated equals a direct loss of revenue to software firms.
To derive its piracy rate, IDC estimates the average amount of software that is installed on a PC per country, using data from surveys, interviews and other studies. That figure is then reduced by the known quantity of software sold per country-a calculation in which IDC specialises. The result: a (supposed) amount of piracy per country. Multiplying that figure by the revenue from legitimate sales thus yields the retail value of the unpaid-for software. This, IDC and BSA claim, equals the amount of lost revenue.
Selling music is like selling drugs. If you want your clientele to keep coming back, you need to consistently supply a quality product. People know what they want. People talk about how the music industry is struggling, but there's no strain on Eminem records. There's no strain on the Game. There's no strain on 50 Cent records. My first album was downloaded 300,000 times before it went on sale, but we still sold 872,000 copies the first week and 822,000 copies the second week. I don't believe in the oversaturation of a quality product.
According to Canadian cyberlaw prof Michael Geist, the Canadian Federal Court of Appeals has affirmed a lower decision denying the Canadian Recording Industry Association the right to subpoena the identities of 29 alleged filesharers:
The court focused much of its discussion on the privacy concerns associated with disclosing the identities of the file sharers. Although it noted the importance of intellectual property protection, it emphasized that in the Internet age "the potential for unwarranted intrusion into personal lives is now unparalleled." The court was clearly sympathetic to the privacy issues raised by the case and sought to map out some significant privacy protections. For example, it concluded that data associating users with an IP addresses goes stale very quickly and therefore evidence that is not current may be sufficient reason to dismiss a motion to disclose user identities. The court also noted that there must be care taken to ensure that personal information beyond the copyright allegations are not disclosed and that the identities of the individuals may be protected through confidentiality orders or by using initials.
While these protections are important, the court has certainly opened the door to new file sharing lawsuits. The court says that a "bona fide" standard is sufficient for disclosure, a different standard from the higher prima facie standard used by the trial judge. The court also left open many of the copyright issues, concluding that the trial judge should not have delved into the copyright analysis. While it raised some potential concerns with that analysis, the appellate court did not reach any definitive conclusions on the copyright issues.
As Ernie has noted, copyright scholar Bill Patry has started a blog. So far, it's a hit for copyright geeks like myself, presenting interesting issues, depth, knowledge, and fine writing. Patry has a particularly interesting discussion going on right now about the constitutionality of the federal anti-bootlegging statutes vis-a-vis the dormant Copyright Clause, with comments from two Boalt Hall law students and EFF's own Fred von Lohmann in the mix.
The American Library Association, Public Knowledge, EFF, et al. just won our joint challenge to the FCC's ability to regulate consumer electronic devices that receive digital television signals, 3-0 at the D.C. Circuit Court of Appeals.
It's a lengthy administrative opinion, but it basically says the FCC can't regulate home use of digital content without explicit authority from Congress and that educators, librarians, and consumers have a legitimate interest in fair use of those materials.
According to the website of Bob Goodlatte (sounds like a James Bond villain, doesn't it?), the Republican High Tech Working Group will focus on the following issues:
Ensuring Employee Stock Ownership Remains Viable – We will vigilantly promote and protect the stock ownership and retirement security of high-tech’s rank and file employees.
Research & Development (R&D) Tax Credit – We will seek to extend the R&D tax credit and ensure that basic federal R&D spending is sufficient to maintain U.S. technological edge.
Skilled Workforce – We will continue to prepare and develop workers for an information economy by supporting education reforms and funding that improve American’s math and science programs in order to fill high-tech jobs.
Reduce Trade Barriers – We will continue to promote free and fair trade by lowering barriers and supporting trade agreements like CAFTA (Central American Free Trade Agreement).
Ensuring Fairness in Government IT Acquisitions – We will continue to promote the commercialization of the Federal marketplace to ensure an open and competitive landscape for all technology companies.
Patent Reform – We will work to modernize the patent system so that companies have incentives to produce new and high-quality patents, and that the United States Patent and Trademark Office (USPTO) provides effective turnaround especially for an industry that has rapidly changing technology and innovations.
Protect Intellectual Property from Digital Piracy - We will promote and enforce strong copyright and patent protection laws to prevent and combat the growing trend of digital piracy.
Spectrum Enhancement – We will continue to work to update the Telecommunications Act to reflect the changes in technology and competition that may have been driven by the Internet.
Spyware and Phishing – We will work to ensure that innovation is not stifled and consumer confidence is not threatened by bad actors, but that the Internet remains a safe and secure place for electronic commerce to take place.
Promote Health IT – We will work with the Administration to enact the federal electronic health initiative to move more medical records on-line to save costs, reduce errors, and provide higher-quality care.
Promote Broadband – We will work to fulfill the President’s goal of access to broadband by working to create economic incentives, to remove regulatory barriers, and to promote new technologies to help make broadband affordable for all Americans.
In his first trip to California as the nation's attorney general, Alberto R. Gonzales told a group of high school students to just say no to online piracy.
But, for many of the students, the response was to just say "why not?"
During a daylong UCLA seminar featuring Gonzales, students peppered speakers with tough questions about the real effect of piracy. Some even suggested that government should focus more on tackling poverty and improving education than on jailing kids who download movies, music and software.
And the kicker:
Unfazed by the students' skepticism, Gonzales said this was only the beginning of an intensive educational outreach effort. He wanted to let the students know that intellectual property theft was illegal, carried consequences and could permanently stain their records.
"Sitting through a one-hour, two-hour session may not be enough…. It takes awhile to educate people," he told reporters later.
Yes, I'm sure a few weeks of "reorientation" in GTMO will do the trick quite nicely...
David Dixon, the Webmaster of Puppets for the parody band Beatallica at the Signal or Noise II: Creative Revolution? symposium gives a fabulous presentation (9MB MP3) on the band's legal run-in with Sony over the composition rights to the Beatles songs they parodied and how Lars Ulrich redeemed himself from the dark days of fighting Napster by defending the band's fair use. Check it out.
p.s. Includes a great shout-out to BitTorrent and an afterward by my co-worker Wendy Seltzer.
A French court has blocked the use of DVD copy-protection in
a suit launched by a consumer group. The court ruled that the protection ran counter to consumer private copying rights.
Decision is in French, so I have no idea how far it goes. If anyone wants to translate, please do!
The Herald Tribune has an interesting bit about President Bush's new iPod and where its music comes from:
The president also has an eclectic mix of songs downloaded into his iPod from Mark McKinnon, a biking buddy and his chief media strategist in the 2004 campaign. Among them are "Circle Back" by John Hiatt, "(You're So Square) Baby, I Don't Care" by Joni Mitchell and "My Sharona," the 1970s song by The Knack that Joe Levy, a deputy managing editor in charge of music coverage at Rolling Stone, cheerfully branded "suggestive if not outright filthy" in an interview last week.
As Joe Hall points out, the RIAA has conceded that ripping your own CDs to your iPod isn't illegal, but what about the music of others? Is President Bush "stealing" from artists like The Knack? Maybe the White House Press Corps should ask. Inquiring Minds want to know!
Hal Varian, kick-ass economist from UC Berkeley, lays out the case in the New York Times for why keeping Grokster legal could be a win-win for both tech and content companies:
So what should the policy be for new technologies like Grokster? I advocate the Pizza Principle: If you want everybody to get as big a slice as possible, you first have to figure out how to bake as big a pie as possible. Once you have a nice big pie, you can let people fight over how they slice it up.
With respect to technology, the Sony decision got it right: encourage technologies that create more total value. Then, let companies fight to find business models that deliver that value to consumers. They can be awfully creative when they are forced to be.
Mark Cuban is fast approaching alpha-geek status. Check out his recent post on why he can't and won't buy CDs anymore:
MP3 players are changing peoples listening habits. We don’t carry folders filled with CDs anymore. We carry our library in our MP3 players. We don’t listen to CDs. We listen to playlists that we adjust all the time. We don’t burn CDs anymore, it’s too time consuming. We copy all our music to our MP3 players so it’s all available at our fingertips.
To help gear up for the MGM v. Grokster oral argument happening on March 29 in D.C., EFF is throwing a "send off" party for the legal team involved in the case, along with many of our friends who filed in support of our arguments or helped out in other ways. It's a public party and a time to celebrate, so if you'll be in the SF area on March 24th, please come and celebrate with us.
Charlie Angus, a Canadian Member of Parliament and musician, has broken ranks from a parliamentary committee that recommended reforms to Canada's copyright legislation. Angus expressed concern over proposals that could be detrimental to the Internet, noting that "placing handcuffs on students will not resolve the inability of Canadian artists to earn a decent living."
Here's your chance. EFF has an opening for an intellectual property attorney on our legal team. You'd get to work on cutting-edge cases dealing with public-interest technology issues and help shape national and international IP policy. We're looking for someone mid-level or higher, who can take a good idea and turn it into a lawsuit or an educational campaign and then run with it. The person will need to either live in the San Francisco Bay Area or be willing to relocate. For more details, check out the formal announcement below:
--------
Staff Intellectual Property Attorney
EFF is seeking an intellectual property staff attorney for its legal team. Responsibilities will include litigation, public speaking, media outreach, plus legislative and regulatory advocacy, all in connection with a variety of intellectual property and high technology matters.
Qualified candidates should have roughly three years of experience with litigation in at least one substantive area of IP law (patent, copyright, trademark, or trade secret) and a solid knowledge of the litigation process. Candidates should also have significant experience managing cases, both in terms of overall case strategy as well as day-to-day projects and deadlines. Candidates should have good communication skills and interest in working with a team of highly motivated lawyers and activists in a hard-working nonprofit environment. Strong writing and analytical skills as well as the ability to be self-motivated and focused are essential. Tech savviness and familiarity with Internet civil liberties and high tech public interest issues preferred.
Interested applicants should submit a resume, writing sample, and references to ipjob--at--eff(dot)org.
Those crazy kids from Downhill Battle are at it agin. They've just announced a nationwide campaign to screen the award-winning documentary Eyes on the Prize in major cities all over the country on February 8 as an act of copyfight civil disobediance:
At 8pm on February 8th we will celebrate the struggle and triumph of the civil rights movement with screenings of Eyes on the Prize Part 1: Awakenings. Eyes on the Prize is the most renowned civil rights documentary of all time; for many people, it is how they first learned about the Civil Rights Movement (more about the film). But this film has not been available on video or television for the past 10 years simply because of expired copyright licenses. We cannot allow copyright red tape to keep this film from the public any longer. So today we are making digital versions of the film available for download. Join us in building a new mass audience for this film: organize or attend a screening in your city, town, school or home on February 8th.
When he bought his 10-year-old a computer, Antonio Morrell was just trying to help the boy get ahead in school. Now the Miami construction worker is being sued by the music industry, which has brought its battle against Internet piracy to South Florida for the first time.
More than a dozen record companies have sued 30 South Florida residents, accusing them of illegally downloading music and making it available for others to copy.
Some of those named in the lawsuits told The Herald the record companies have offered to settle for about $4,000 each.
Morrell said he never downloaded any songs. Yet he's named in a lawsuit, he said, because his son, Alessandro -- who was 10 when his father bought him a computer two years ago -- downloaded about 1,000 songs and opened the door for others to copy them.
''I don't see how I could be paying somebody $4,000 for something I didn't do,'' Morrell said. ``I bought the computer for schoolwork. I'm sure he didn't know he was doing anything illegal.''
Morrell said he separated from his wife over a year ago and wasn't around to monitor his son's computer activity.
Ice cream cone? Yes. That's what Krispy Kream Drive In on Route 422 in Cambria County sells. The current owners have been in Belsano since 1968.
Christina Hoover owns the Ice Cream shop with her husband. She tells Channel 6 News, "We're an ice cream fast food stand. It's a drive in."
And business is good. Then in the past month two letters from Krispy Kreme donuts. The corporation is not happy with them. But it's not about donuts and ice cream. The problem has to do with the name. Krispy Kreme donuts wants Krispy Kream Drive In to change theirs.
Amy Hughes is the Communications Director for Krispy Kreme. She tells Channel 6 News, "Unfortunately this business is violating a federal regulation trademark that we've had since 1951. And we've respectfully requested that they cease doing so within a reasonable amount of time."
Krispy Kreme couldn't be more wrong. Sure, it may have been using the name in connection with donuts since 1951, but ice cream and donuts are two different kinds of products. No one thinks the KK donut chain sells ice cream cones.
What Krispy Kreme is really arguing is dilution of their "famous" brand. Since going IPO a few years ago, Krispy Kremes have popped up everywhere across the county, from SBC Park in SF to the Excaliber in Las Vegas. So yes, within the last few years, one could argue that they are a "famous" tradermark like McDonalds or Kodak and should be protected from dilution (e.g. someone selling McDonalds backpacks or Kodak bicycles). The problem with this argument is that you can only sue someone for diluting a famous mark after its become famous. Since the Hoovers' ice cream stand has had the name "Krispy Kream" since 1968, they are quite safe from a dilution attack.
Who knew the Copyright Clause of the US Constitution was under attack?
Well, according to Robert Wright, Chair of NBC Universal, its in critical condition and needs help STAT!:
In Washington to accept a First Amendment award from the Media Institute, Wright, the dean of network chiefs, sent a message to legislators, regulators and whoever else was listening that his company is ready to lead the fight for copyright protection, saying the Copyright Clause is under "enormous pressure and requires our vigilant attention."
...
Wright said that technology, not legislation, is the best solution to intellectual property theft, but he also said that government needed to create "new rules of the road for the digital world...that encourage technological progress yet at the same time uphold the values that make commerce possible."
His suggestions:
1. Support a house Judiciary Committee package of antipiracy bills "currently in limbo".
2. Find some compromise in the Senate Judiciary Committee on the so-called induce legislation targeted at peer-to-peer file sharing.
3. Support Attorney General John Ashcroft's proposed intellectual property protection recommendations.
Wow.. a First Amendment advocate supporting Ashcroft? Where can I get some of that Kool-aid?
"Nowhere in its deliberations over the DMCA did Congress express an interest in creating liability for the circumvention of technological measures designed to prevent consumers from using consumer goods while leaving the copyrightable content of a work unprotected."
"We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case[.]"
"Congress gives authors and programmers exclusive rights to their expressive works (for a limited time) so that they will have an incentive to create works that promote progress. Lexmark’s reading of the extent of these rights, however, would clearly stifle rather than promote progress. It would allow authors exclusive control over not only their own expression, but also over whatever functional use they can make of that expression in manufactured goods. Giving authors monopolies over manufactured goods as well as over their creative expressions will clearly not “promote the Progress of Science and the useful Arts,” but rather would stifle progress by stamping out competition from manufacturers who may be able to design better or less expensive replacement parts like toner cartridges."
Wow.. Talk about a mother lode. I've just finished reading through the Lexmark Opinion from the Sixth Circuit. There's a whole lot of good stuff in it about copyright, fair use, and limitations on the DMCA. Here's my current favorite from one of the concurrences (note the shout out to Larry L's new book!):
I write separately to emphasize that our holding should not be limited to the narrow facts surrounding either the Toner Loading Program or the Printer Engine Program. We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case: by, for example, creating a Toner Loading Program that is more complex and “creative” than the one here, or by cutting off other access to the Printer Engine Program.
The crucial point is that the DMCA forbids anyone from trafficking in any technology that “is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [protected] work.” 17 U.S.C. § 1201(2)(A) (emphasis added). The key question is the “purpose” of the circumvention technology. The microchip in SCC’s toner cartridges is intended not to reap any benefit from the Toner Loading Program – SCC’s microchip is not designed to measure toner levels – but only for the purpose of making SCC’s competing toner cartridges work with printers manufactured by Lexmark.
By contrast, Lexmark would have us read this statute in such a way that any time a manufacturer intentionally circumvents any technological measure and accesses a protected work it necessarily violates the statute regardless of its “purpose.” Such a reading would ignore the precise language – “for the purpose of” – as well as the main point of the DMCA – to prohibit the pirating of copyright-protected works such as movies, music, and computer programs. If we were to adopt Lexmark’s reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures “for the purpose” of pirating works protected by the copyright statute. Unless a plaintiff can show that a defendant circumvented protective measures for such a purpose, its claim should not be allowed to go forward. If Lexmark wishes to utilize DMCA protections for (allegedly) copyrightable works, it should not use such works to prevent competing cartridges from working with its printer. Reading the DMCA in pari materia with the rest of the copyright code supports this interpretation.
The DMCA should be used as part of the copyright code as it applies to computer software codes and other digital media. To this extent, the specific “purpose” language of the DMCA modifies the more abstract language of the previous copyright law. As the Court explains, the fair use exception in copyright law explicitly looks to the purpose of the one making the copy in determining whether or not such copying violates the statute, and the DMCA itself contains a reverse engineering exception that also demonstrates Congress’s aim merely to prevent piracy. I agree with the Court that both exceptions apply to SCC’s actions in this case. But we should be wary of shifting the burden to a rival manufacturer to demonstrate that its conduct falls under such an exception in cases where there is no indication that it has any intention of No. 03-5400 Lexmark Int’l v. Static Control Components Page 22 pirating a protected work. See, e.g., Lawrence Lessig, Free Culture 187 (2004) (noting the danger that “in America fair use simply means the right to hire a lawyer to defend your right to create”). A monopolist could enforce its will against a smaller rival simply because the potential cost of extended litigation and discovery where the burden of proof shifts to the defendant is itself a deterrent to innovation and competition. Misreading the statute to shift the burden in this way could allow powerful manufacturers in practice to create monopolies where they are not in principle supported by law. Instead, a better reading of the statute is that it requires plaintiffs as part of their burden of pleading and persuasion to show a purpose to pirate on the part of defendants.
This just in --- Static Control Corp. has won its appeal against Lexmark over the right to produce after-market replacement cartridges for Lexmark printers.
During the CATO Institute panel on INDUCE last week Markham Erickson of NetCoalition made an interesting point. While discussing the various flaws in the INDUCE drafts, he noted that several versions attempted to outlaw P2P appliations based on language prohibitng specific technological architectures. For example, some of the drafts from the Copyright Office specifically targeted technologies that were "capable of widespread distribution of copyrighted materials."
Markham noted that when he talked to engineers in tech companies about this particular aspect of INDUCE, their main concern was that the direction that P2P architecture is headed (decentralized services vs. central server intermediaries) is the same direction that all network technologies are headed. Today's cutting edge markets -- Wifi, WiMax, Camera Phones, MP3 players, etc. -- are all trending toward flexible decentralized distribution mechanisms, just as P2P does. Therefore, any approach to INDUCE that targets a specific or general architecture threatens not only legitimate innovation in principle but also legitimate innovation in practice, at least according to the engineers on the ground.
This got me to thinking. Why were the RIAA and MPAA so insistent during the negotiations on a broad technological definition? Why not just write a bill that narrowly targets P2P companies by name and be done with it? (For example, one could simply make it illegal to write a software program that utilizes the GiFT, FastTrack, Gnutella, Bittorrent, or OpenFt protocols and that would effectively ban most current P2P apps).
The reason, of course, is that INDUCE is not really just about P2P apps. It's about the future of all distribution technologies and in particular, about what I like to call "Me2Me" apps. As network and distribution technologies evolve, they offer consumers and computer users more and more control over their own media. P2P technology broke into the mainstream as a mechanism for distributing files amongst different people, but the same architecture is becoming popular among technologies designed to distribute one person's content amongst his or her various platforms.
For example, consider iTunes and the iPod. iTunes allows one to stream music to any computer on your local area network. It also allows you to transfer files to any number of iPods. It also allows you to rip, mix, and burn CDs. In essence, it allows massive distribution of content, albeit primarily to one's self, family, and friends.
Or consider the Media Package on Tivo via Wifi. I use my Tivo Media package to listen to music streamed from my computer over my home wireless network. I also use it to view photos. Both of these mechanisms are "Me2Me" distribution technologies which allow me to shuffle my content from one platform to another. Technologies like the Airport Express and SlingBox further extend this capability by allowing you to shift content from your computer to stereo or from your Tivo to your laptop or PDA. And finally, don't forget cell phones. More and more, they are becoming dissemination technologies for audio, video, photos, and music.
The next generation will go even further. Imagine a wireless iPod that can synch with any iTunes application within 75 feet. Or a MP3 player for your car that automatically syncs with your home computer when you pull into the driveway. Or a media player on your laptop that automatically syncs with your TiVo to download the latest episode of your favorite Prime Time addiction.
This is, of course, the RIAA and MPAA's worst nightmare. Both industries have based their business models on controlling each and every permutation of playback for their content. The RIAA wants to make you pay when you buy the CD, when you download the iTune, when you listen to an Internet webcast, etc. The MPAA wants to charge you at the theater, for every copy of a DVD you buy, and (via advertising) for every show you watch on TV. Yet the more and more we as users and consumers are allowed to control and choose our own form of playback, the less Hollywood can justify charging us for each one. The more utility we get out of Me2Me apps, the less we're willing to pay someone for an extra copy or delivery mechanism. In the end, Me2Me technology may pose a larger threat to Big Cotent's bottom line than P2P ever did.
So how does this play into the politics of INDUCE? Well, P2P has been an easy political target for the RIAA and MPAA. Its an easy case of massive unauthorized distribution. In the Grokster case, they were able to show that over 90% of P2P is used for infringement of copyright. Its transfers take place outside the privacy of one's home and often include socially-stigmatized content like pornography, spam, spyware, and viruses.
Me2Me technology, however, would be much much harder to outlaw. Many Me2Me uses would arguably be fair or non-infringing uses. For instance, they tend to be private uses involving only family or friends. Many would involve use of media legitimately purchased by both the sender and recipient of the content (i.e. oneself). Thus, under current copyright law, it would very difficult to outlaw any of them. It would also be difficult to chastize them politically in front of Congress.
This is why the battle over DRM, the Broadcast flag, and now INDUCE has become so important for them. If the RIAA/MPAA wait too long, more and more platform distribution technologies with primarily legal uses will come to market and undermine their case for outlawing specific architectures. As these technologies take hold, public and political sentiment will continue to grow against harsher restrictions and enforcement and more toward allowing and embracing such technologies. Thus, the window of opportunity for the content industry to pass a restrictive law like INDUCE is very short. They must act now (dare I say pre-emptively strike?) while they can to frame the targets as a bunch of "bad" actors (i.e. the P2P companies) before too many "good" actors (i.e. Me2Me products and services) infiltrate the market and obfuscate the ability to outlaw one architecture without threatening the others.
Terrence Maxwell has a new article in First Monday (Is Copyright Necessary?) attempting to model the effects of different copyright policies historically and into the future (e.g. authors wanting high-protection copyright vs. the public wanting low-protection copyright). His models are fairly abstract and complex (see image below), but his results are interesting:
As indicated in the table, the desired policies of authors, publishers and public domain advocates produce very different outcomes in a 100–year simulation, some of which run counter to the protagonists’ stated goals. For instance, while the authors’ position led to the largest number of authors, it also generated the lowest sales figures, and the fewest number of volumes published. This indicates that the demand for new volumes from authors was the lowest among the three options, and points to a greater level of competition among authors seeking publication. Similarly, while the reader position generated the highest level of sales, the greatest number of different volumes, and the lowest cost for books, it also severely constrained the number of authors. This means that while a greater number of volumes would be available, diversity in authorship would be curtailed. This, in turn, would tend to diminish the likelihood of variety in information products.
Dutch civil rights organization Bits of Freedom has run an interesting experiment: They put up a text by a famous Dutch author, written in 1871 to accounts with 10 different ISPs. Then they made up an imaginary society that is supposed to be the copyright holder of the author in question, and sent copyright infringement takedown notices to those 10 ISP via email (using a Hotmail account). 7 out of 10 ISPs took down the material, sometimes within hours and without even informing the account holder. One ISP doubted the legitimacy of the claim and asked for some proof that the alleged plaintiff was in fact the copyright holder. Yet another ISP actually realized that copyright had long since run out on the work. That's real scary, don't you think? Made up society, Hotmail addresses and a website is gone.
