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.
Mr. Attaway begins: ...
The answer to the question, "Is digital rights management being implemented in a positive way?" is a resounding yes. Positive, but not perfect. Let me explain.
Digital rights management is the key to consumer choice. The better the DRM, the more choices consumers will have in what they view, when they view it and how much they pay for it. The only valid criticism of DRM is that some of the DRM technology currently in use is not sophisticated enough. But it is getting better. Users of next-generation DVD technology will have more choices than they do today because the DRM technology will be more sophisticated.
Ms. Seltzer responds: ...
You raise the example of DVD as a success story, but DVD players have hardly changed in the last decade. True they've gotten cheaper, but I still can't buy one (lawfully) that lets me take clips to create my own movie reviews or "Daily Show"-style send-ups of my favorite films. I still can't play movies on my GNU/Linux computer. When Kaleidescape tried to build a DVD jukebox to allow people to burn movies to an enclosed hard drive rather than shuffle jewel cases and discs, the company earned high reviews -- and a pricey lawsuit.
I'm working on a paper [hence the blog silence] in the same vein, examining the impact of DRM+DMCA on open source software development and technology innovation. The question isn't only whether DRM can accommodate fair use, as many scholars are now asking and answering equivocally, but whether it permits independent technology development. Many of the current DRM systems and proposed technology mandates could not be implemented in open-source software or open hardware; the DRM restrictions are incompatible with user-modification. I argue that's too high a price to pay to enable a few more pay-per-use business models.
Searching with Google yesterday, I smiled at its logo, playfully reworked to look like a Joan Miró painting in honor of the Spanish artist's birthday. His family and Artist's Rights Society weren't smiling, the Mercury News reported, asking Google to remove the tribute mid-day. Google honored the request while saying that the logo did not infringe.
[President of Artists Rights Society Theodore] Feder said the society receives hundreds of requests each day from media organizations who are interested in reproducing a copyrighted work in some form. He said the authorization process is simple: all Google needed to do was send an e-mail asking permission to use the images.
"We would have asked the estate or the family, and they would have said yes or no," he said.
But fair use, as U.S. courts recognize it, eliminates the need to ask permission. Fair use saves us from the sanitized world where only authorized tributes or commentary are permitted. Moral rights, applied in many European countries but not the U.S., protect the "integrity" of artists' works -- but even that was hardly under threat.
No one would think from this logo, which linked to a Google search for "Joan Miró," that the artist (who died in 1983) endorsed Google; instead, many more might have been inspired, as I was, to click through to some of the originals artworks whose elements were re-mixed here. Copyright prevents someone from making Miró lithographs without permission, it doesn't and shouldn't prevent Google from honoring artists before they're dead 70 years.
Boing Boing links the clever short film [ airport ], made entirely from the common airport direction and instruction symbols.
Also cool is the AIGA page where the design association makes all the symbols available in EPS and GIF formats:
This system of 50 symbol signs was designed for use at the crossroads of modern life: in airports and other transportation hubs and at large international events. Produced through a collaboration between the AIGA and the U.S. Department of Transportation, they are an example of how public-minded designers can address a universal communication need.
These copyright-free symbols have become the standard for off-the-shelf symbols in the catalogues of U.S. sign companies.
Indeed, I'd suggest that the symbols' freedom from trademark and copyright claims has directly spurred their widespread adoption, which in turn has helped to make them more universally understood. Score one more for the commons.
At a book talk last night, Benkler outlined an economic history of information production. We're moving from the age of industrial information production to one of social information production. Ever-faster computers on our desks let us individually produce what would have taken a firm to organize just a decade ago. Ever-further networks let us share that with the world as cheaply as storing it for ourselves. This "social production" is distributed and motivated by social relationships rather than market signals.
As Benkler contextualizes this activity, it's not outside or in opposition to economics, but part of the economy. Commons production can be used by market-driven actors and by ideologically motivated purists. As it spreads, though, it enhances not only bottom lines but political freedom.
In an example near to my heart, Benkler showed the pressures e-voting vendor Diebold faced from the circulation of source code and internal emails. But in Benkler's story, the chief heroes weren't the lawyers wyho stepped up to defend against claims of copyright infringement -- after all, it took a year before the court ordered Diebold to pay our costs and fees -- but the distributed participants who published and kept the memos and code online in the face of legal threats. Even without the legal muscle of a New York Times, activists kept the story alive through social propagation.
Benkler's slide set ended at a moment of conflict. The new modes of social information production threaten established industries and so industral infogiants fight back with old weapons: legislation such as DMCA, monopoly power in non-neutral networks, patent thickets. Yet Benkler is an optimist. He's leaving future slides to be completed by the socially organized forces he celebrates. Here's the wiki!
The Libertarian Cato Institute has released a terrific report (PDF link) documenting ways the Digital Millennium Copyright Act hinders innovation.
Why won't iTunes play on Rio MP3 players? Why are viewers forced to sit through previews on some DVDs when they could have fast-forwarded through them on video? Why is it impossible to cut and paste text on Adobe eBook? In a just released study for the Cato Institute, Tim Lee, a policy analyst at the Show-Me Institute, answers these questions and more.
The new legislation’s most profound
effects will be on the evolution of digital media
technologies. We have grown accustomed to,
and benefit from, a high-tech world that is
freewheeling, open-ended, and fiercely competitive.
Silicon Valley is a place where upstarts
like Apple, Netscape, and Google have gone
from two-man operations to billion-dollar
trendsetters seemingly overnight. The DMCA
threatens to undermine that competitive spirit
by giving industry incumbents a powerful
legal weapon against new entrants.
Sound copyright policy has obvious attractions for advocates of small-government and deregulation. Copyright has become more regulatory, and more market-crippling, as it expands, and the DMCA is a case in point. As Lee describes, the DMCA has been (ab)used to prevent competitive development of audio and video players, cable boxes, and even, for a time, printer cartridges. Instead of a free-market rush toward the best technology to meet public demand, we get a trickle of major-label "approved" devices that must be bug-compatible: region-coded DVD players and can't-record cable boxes.
I don't agree with Cato on everything, but this report is spot-on. Let's hope it inspires more in Congress to join Reps. Boucher, Doolittle, and Barton in support of the DMCRA.
The University of Michigan Press is looking for a few good tech-bytes -- to include in a book of the year's best technology writing. They've launched an open call for nominations, inviting suggestions for the best articles, essays, and blog posts of 2005. These are clueful publishers -- instead of suing Google, they're working to enhance the visibility of their authors on-line and off-.
Here's a chance to pull together the explanations of technology and its celebrations and criticisms; pieces that sparked an "Aha!" or a good laugh. Since it's planned for both print and online publication, it's also a chance to bring the blog-world to those who read only dead trees. I'll be helping to read the nominated pieces, so I hope you'll help by suggesting some good ones.
Taking a cue from the open-source movement, we're asking readers to nominate their favorite tech-oriented articles, essays, and blog posts from the previous year. The competition is open to any and every technology topic--biotech, information technology, gadgetry, tech policy, Silicon Valley, and software engineering are all fair game. But the pieces that have the best chances of inclusion in the anthology will conform to these three simple guidelines:
They'll be engagingly written for a mass audience; if the article requires a doctorate to appreciate, it's probably not up our alley. Preference will be given to narrative features and profiles, "Big Think" op-eds that make sense, investigative journalism, sharp art and design criticism, intelligent policy analysis, and heartfelt personal essays.
They'll be no longer than 5,000 words.
They'll explore how technological progress is reshaping our world.
Newswires and other media were buzzing yesterday over the Justice Department's subpoena to Google for search terms and URLs. The buzz got louder when Judge Ware indicated in court that he was likely to order Google to respond, at least in part. (Londoners might have seen me interviewed on the BBC news.)
The story converged the public's interest in everything Google with concern about government spying and the erosion of privacy online -- even if little of that privacy was ever directly at issue here. The government asked for search terms and a selection of URLs, not the IP addresses that could most directly link terms to the users who searched for them; its stated purpose was not to investigate individuals but to gather pieces that would help DOJ defend the Child Online Protection Act, a prohibition on showing material "harmful to minors" that has been on constitutional hold since its enactment in 1998. Google opposed the request, saying it called for trade secrets, was unduly burdensome, and further, that it might chill some of the search engine's users.
Even more than an actual privacy violation, the subpoena raised the preception of a privacy breach. News of the subpoena started many people thinking about how much of their personal lives they turn over to search engines -- and how little they know about what happens with that information next. With a government intent on listening to communications without warrants, could this subpoena be the first step toward a broader sweep of search engine records for other purposes? Our current privacy laws don't do a great job of protecting the information we turn over to third parties, such as search engines. Google could help protect privacy by keeping less data, but its business interests won't always align with its users' privacy wishes. The interest in the DOJ-Google subpoena shows we need to do better.
When a newspaper obtained records of then-Judge Bork's video rentals duringn 1987 hearings on his nomination for the Supreme Court, the public and members of Congress were similarly shocked that these records were so easily available. In response, Congress passed the Video Privacy Protection Act, prohibiting disclosure of video tape rental records without a warrant or court order. Though limited to sale or rental of "prerecorded video cassette tapes or similar audio visual materials," the VPPA stands out as one of our strongest privacy protection laws.
The DOJ's subpoenas for search records should be web searches' "Bork moment." Search engines, and our comfort in using them unobserved, are a key part of the Internet's vitality. If no current law protects us against government Googling our Google records, it's time to draft a law that does.
Apple's DMCA takedowns to web sites discussing the new Intel operating system -- and ways to get it running on non-Mac hardware -- have been in thenews lately. Now, Chilling Effects has the notices sent to two of the sites' ISP, and what they don't say is as interesting as what they do. (Notices sent regarding the OSx86 Project and Win2osx.)
Both letters claim that "Apple uses encryption and other technological measures in Mac OS X ver. 10.4.4 to effectively control access to its copyrighted operating system code and to effectively protect its rights as a copyright owner in that code." Apple says hacks to enable OS X to run on non-Apple hardware "are primarily designed and produced for the purpose of circumventing those technological measures," in violation of the anticircumvention provisions of the DMCA.
Apple claims further that the Win2osx site posted pieces of Apple's copyrighted code -- but it does not make the same claim against OSx86. The most it can claim is that the OSx86 site linked to a third-party site (Maxxuss, hosted in Russia, down as of this posting) offering circumvention code and copied code. The ISP gets a notice as host to a linker, at best a tertiary connection to the claimed infringement or circumvention (but one in the United States and easy to find).
The OSx86 Project is back, minus links to the Maxxuss site. But at bottom, was Maxxuss infringing or circumventing? Clearly it was doing something Apple would prefer not be done, offering users a way to unbundle OS X software from Mac hardware. But isn't that the kind of reverse engineering for interoperability that is fair use under copyright law and was supposed to be preserved in the DMCA? Provided users of the Maxxuss patches had validly licensed copies of the OS, their use should be a matter of their own choice and the terms of their OS X licenses, but not a circumvention. Once again, anticircumvention offers a big hammer for those who want to break interoperability.
The NYT updates the story of the "Lazy Sunday" sketch: after finding new life for Saturday Night Live in a mock rap segment that spread "virally" far beyond the television sets, NBC sent out the copyright squads. They sent cease-and-desist letters to hosting sites such as YouTube, whose copy of the video had risen to the top of a Google search.
Julie Summersgill, a spokeswoman for NBC Universal, said the company meant no ill will toward fan sites but wanted to protect its copyrights. "We're taking a long and careful look at how to protect our content," she said.
Several online commentators noted that NBC's response to YouTube, while legally justified, may have been short-sighted. The online popularity of "Lazy Sunday" has been credited with reviving interest in "Saturday Night Live" at a time when it is in need of some buzz.
I'm sure NBC lawyers need no reminding that unlike trademarks, copyrights do not need to be policed to retain their validity. Instead, NBC seems to be shutting down its own best advertising.
The NYT reports that Headline publishers (an outfit nearly impossible to Google) will be re-issuing Jane Austen classics as "Classic Romances."
Don't look for her anytime soon on Oprah, but Jane Austen, dead since 1817, is about to get a jolt of 21st-century image-making. When it is finished, Austen, the clergyman's daughter whose novels include "Sense and Sensibility," "Pride and Prejudice" and "Emma," will reemerge among the royalty of romance. In May, Headline publishers will issue her six novels as "Classic Romances," with glossy pastel covers depicting dashing dandies and bonneted Regency beauties, Reuters reported yesterday from London.
Yup, even though Austen's books are all in the public domain, so Headline gets no copyright exclusivity in their publication, the publisher still thinks it can make them profitable with clever packaging and marketing. That's probably right. Just as filmmakers could attract audiences to the remakes of Pride and Prejudice or the update to Emma in Clueless, so book publishers can find new audiences who wouldn't want to (or think to) retrieve the dry ascii from Project Gutenberg.
As Headline's search page describes:
All six of Jane Austen's novels are being packaged so they appeal to the fiction-buying public, rather than as either dusty academic texts or film tie-ins. A HUGE untapped market \n
More power to them. It is a truth universally acknowledged, that a publisher in possession of a good audience, must be in want of a text. (with apologies to Jane Austen)
How many trademark infringements can you spot in the The Million Dollar Homepage? Among all the ads for free porn, free domain names, and free gambling (only the first click is free), I spot least eBay and Yahoo! logos that don't go to those companies' websites. I can't tell whether they're associated listing services, click-through affiliate links, or phishing expeditions, but I imagine the companies would have a decent trademark claim against someone who used the logos for unrelated commercial gain. Even those offering companion services, such as eBay listing facilitators, might not win with a TM fair use defense.
Consumers can buy and sell almost anything on eBay, the giant online auctioneer -- including a used tube designed to be inserted into a patient's jugular. ...
EBay Inc. says it is not its role to oversee the buying and selling of such devices on its service. "We don't take responsibility for items sold on the site," said company spokesman Hani Durzy. "We're a marketplace."
That means buyers and sellers of reprocessed single-use medical devices on eBay operate largely under the radar. In many cases, there is no certain way of knowing where sellers obtained such used medical devices and no sure way of knowing who bought them, interviews and records show.
Those of you who have been watching this space will recognize the divergence from eBay's intellectual property practice, where participants in a "Verified Rights Owner" program can get expeditious removal of listings merely by registering and reporting claimed infringements of their trademarks or copyrights. So Mars Candy can stop the sale of M&M-patterned pillows with a letter, but eBay is just "a marketplace" when it comes to percutaneous lead introducers and biopsy instruments.
Now I'm not saying there's anything wrong with the sale of refurbished medical equipment, provided it's properly checked and sterilized by its purchaser, nor that there's anything right about the sale of pirated movies. There's just something strange about a system that gives a market more incentive to police pictures than pacemakers.
Michael Geist points to a new decision from Canada's Supreme Court ruling that Lego couldn't use a claimed trademark on the interlocking shape of its blocks to insulate them from competition after its patent expired. The ruling echoes a recent U.S. Supreme Court decision, TrafFix Devices Inc. v. Marketing Displays Inc. (2001), that an expired patent couldn't be extended by a claim that the design had acquired trade dress distinctiveness.
Lego (Kirkbi) had patented the Lego system of interlocking blocks and now claimed that even after the patent expired, the "distinctive orthogonal pattern of raised studs distributed on the top of each toy-building brick" had become "LEGO indicia" due protection as an unregistered trademark. Without this protection, Kirkbi protested, Mega Blok would be able to free-ride on the popularity established by Lego's hard work and reputation for quality.
One must start from the problem the appellant faced when its patents expired. ...[T]he very cleverness and flexibility of LEGO technology, of the combination of studs on top of the brick and tubes under it, had almost turned "LEGO" into a household word. Source and product became identified. LEGO bricks, for many, came to designate these small colourful building blocks, with their clever locking system. But when the patents expired, the LEGO technology fell into the public domain. The LEGO name, whether on the product, on its packaging or in its advertising, remained protected, but the monopoly on the wares themselves was over. The monopoly had been the key to the building up and preservation of LEGO’s market share, and so Kirkbi employed a number of different means to protect it, one of which was the assertion of a trade-mark.
The court properly recognized that the patent confers a limited monopoly. In Canada, as in the United States, patent protection is temporary: "Patent protection rests on a concept of a bargain between the inventor and the public. In return for disclosure of the invention to the public, the inventor acquires for a limited time the exclusive right to exploit it." Entry into the public domain after the patent's expiration is a core part of the public-private bargain -- a bargain that can't be abrogated by trademark claims.
True, Kirkbi had built a Lego empire, but as an empire founded on the functional properties of Lego's interlocking bricks, its moats came with an expiration date. "Free riding" after that date benefits society by giving more companies the chance to build interlocking bricks, giving more kids (and non-kids) access to reasonably priced building kits.
The fact is, though, that the monopoly on the bricks is over, and MEGA BLOKS and LEGO bricks may be interchangeable in the bins of the playrooms of the nation – dragons, castles and knights may be designed with them, without any distinction. The marketing operations of Ritvik are legitimate and may not be challenged under s. 7(b) [of the Trade-marks Act].
This reasoning, like the similar U.S. TrafFix decision, reflects a general feature of Anglo-American intellectual property law: Intellectual creations generate value that is shared between the creator and the public. We do not say, "if value then right to exclude," but rather that creators accept the bargain of limited-scope rights when they create.
Let us not forget these principles in the copyfight. Though the term of copyright may never expire in our lifetimes, its scope is cabined by fair use, first sale, and limits on the activities copyright reaches. The copyright bargain authors accept when they write and publish does not include the right to charge for every search index or to break your computer in the name of "securing" music.
For years, the entertainment industry's DRM strategy has seemed to follow the old story about how to boil a frog: Start it going in a pan of cold water and gradually turn up the heat.
So it is with digital rights management: Start consumers off with restrictions only the techiest edge-cases among them will notice, then quietly increase control. Apple's iTunes, for example, has downgraded the behavior of already-purchased music files. One day you could burn a playlist 10 times, the next day only seven.
Once you've accepted that "your" music comes with only a set of pre-defined uses -- and not any personal use you can invent -- you might not notice as you lose the ability to do your own format-shifting. Just as fans once re-purchased music as it moved from 45 to LP to CD, perhaps they could be conditioned not to complain if they were made to re-license when they replaced computers and stereo components. Instead of selling CDs, then, marketers will then be able to slice up the "music experience" and license pieces back to the fans whose rights they've taken, ideally for more than the one-time profit on a CD.
Given that Sony has taken to installing spyware to protect their music, you may be wondering why this episode in the DRM struggle has been good for the consumer. Simple: consumer awareness. For the past several years, much has been made of viruses and spyware and their adverse effects on our computers. The industry designed to stop these threats brings in tens of millions of dollars every year to stop these vicious pieces of software. The average consumer understands what a virus or spyware is. However, stop most consumers and ask them to explain DRM and you'll probably get a blank stare. Up until now, the consumer has been uneducated on what DRM is and how it will affect their daily lives. The major music and movie studios have been fine with this; and now that awareness is changing.
The average fan, who may never have been blocked from playing music from the (new) Napster music store on an iPod; who may never have tried to create her own version of the Daily Show from a TiVo-to-Go'd evening news program but been stymied by copy controls; suddenly has a vivid example of how DRM takes your music -- and your computer -- away from you. CERT, the US Computer Emergency Response Team, is advising
users, "Do not install software from sources that you do not expect to contain software, such as an audio CD."
This is a picture of interoperability. It was on the nightstand when I checked into a hotel recently: a clock-radio with a headphone plug and a button on top labeled "MP3." Simple, but clever. Travelers can plug into their own music players or computers and hear music through the radio's speakers; they can set the clock to wake to tunes from their iPods.
Open standards mean they can do this without telling the hotel in advance all the brands of music devices they might be bringing. Standardization and uncontrolled outputs let any music player interoperate with any pair of headphones -- including a clock-radio plug shaped like a pair of headphones -- with only an adapter to make them fit.
This is one face of what technology mandates like the broadcast flag will kill.
While I can bring my music collection to any pair of headphones or speakers, a broadcast flag would prevent me from doing the same with my collection of recorded television. Why shouldn't the hotel's HDTV have a similar universally interoperable plug on the front? Because instead of one open standard, there will be multiple proprietary and non-interoperable standards for HDTV under a broadcast flag. It won't stop the pirates, but it's bound to frustrate lawful users.
Welcome to the Hotel FCC, home to the latest in HDTV. Of course you'd like to watch your recorded programs.
Did your digital video recorder produce WMV files? I'm sorry, our only TV capable of displaying that is in room 1201, which is already occupied.
TiVo-to-go? Sorry again, the gentleman last staying in room 512 reported that TV broken but we haven't been able to get a certified technician in to repair it.
Yes, you're welcome to down-rez your videos, room 230, but I'm afraid guests have reported that the pixellation just doesn't meet their quality expectations. We do have some old movies on pay-per-view...
Two leading science organizations have denied the Kansas board of education permission to use their copyrighted materials in the state's proposed new science standards because of the standards' critical approach to evolution.
The National Academy of Sciences and the National Science Teachers Association said the much-disputed new standards "will put the students of Kansas at a competitive disadvantage as they take their place in the world."
Apparently, the Kansas standards document quoted extensively from NAS and NSTA reports in the process of singling out evolution as a controversial theory. The organizations denied permission, but (and I haven't seen the Kansas report myself) unless the use was so extensive as to misappropriate the organizations' reports, it could still have been a fair use. (To be fair, the fault lies as much with the Kansas board of education for thinking it needed permission, if its uses were fair.)
Even though my politics are more flying spaghetti monster than "intelligent design," I don't think this is a proper use for copyright. Copyright is not about endorsement or agreement, and it's not a right to stop criticism, even ill-considered criticism. Quotation can be fair use even in a context the original author abhors -- that's precisely when we need fair use most, we on all sides of a political debate.
The organizations are free to broadcast their loud disapproval of the uses to which their publications are being put, and free to sue for misrepresentation if false statements or positions are put into their mouths, but asserting copyright rights seems a heavy-handed way to win a battle of ideas.
The Delaware Supreme Court last week gave strong protection to online anonymity in Cahill v. Doe. The court protected "Proud Citizen's" anonymity against a City Councilman's attempt to identify the poster in a defamation suit. The decision, the first of its type from a state supreme court, required the plaintiff to meet a summary judgment standard before obtaining anonymous speakers' identities, not just provide the perfunctory complaint of notice pleading.
The court further decided, as a matter of law, that Cahill's complaint failed the summary judgment standard. Its analysis, based in part on the context of the posting, is one that may annoy some bloggers:
[C]ertain factual and contextual issues relevant to chat rooms and blogs are particularly important in analyzing the defamation claim itself... chat rooms and blogs are generally not as reliable as the Wall Street Journal Online. Blogs and chat rooms tend to be vehicles for the expression of opinions; by their nature, they are not a source of facts or data upon which a reasonable person would rely.
Based on the context of "Proud Citizen"s post, in a chatroom filled with invective and personal opinion, the court found that "a reasonable person would not interpret Doe's statements as stating facts about Cahill. The statements are, therefore, incapable of a defamatory meaning."
I anticipate some bloggers will object to this characterization: Blogs can be just as important for the dissemination of facts as newspaper sites; newspapers can be wrong. This is of course true. The Cahill decision is not denigrating blogs and chatrooms -- they are entitled to First Amendment protections as strong as those of a newspaper -- but rather recognizing the discernment ability of their readers.
The standard empowers a wide range of bloggers' speech. Because readers can use context to help them differentiate opinions from statements of fact, bloggers are freer to publish their choice of opinionated gossip or citizen journalism. And thanks to courts like Cahill and Dendrite, they can do so using pseudonyms or their real names.
PVRblog found a service that sounds like something out of a law school copyright exam: Rent My DVR.
Never miss your Favorite TV Show again!
Now you don't have to remember to program your DVR or VHS to record you favorite TV show. With the Rent My DVR site you can simple hire someone that will do the recording for you.
Simply file a request on our site to have someone record for you and as soon as a new episode of your favorite show has been broadcasted, it is downloaded automatically to your computer and you can watch it whenever you want.
The site appears to be a "matchmaker," facilitating digital transfer of shows from someone who has recorded them to another who wants to watch it. (It also says it's based in Sweden, but since I know U.S. copyright law better, I'll stick to that.)
The site analogizes its users' activity to the time-honored practice of giving or lending a videotape to a friend -- without the videotape. So would judges extend fair use protection to this transposition of an offline use, or would they trip over the fact that multiple "copies" are being made? If there's infringement, is RentMyDVR a contributor, vicarious assister, inducer?
What's up here? The letter from New York's MTA is light on the detail, not much more than "if right, then infringement." It's not clear how helping people find their way through the labyrinthine NY subway system hurts the transit authority, but that didn't seem to enter the equation. As a copyright matter, this transformative posting (re-sized and formatted for mobile devices) has a good claim to fair use.
The letter from San Francisco's BART spells things out further, invoking both copyright and trademark. BART doesn't want people to think out-of-date maps reflect the current subway system -- a valid concern of the sort that trademark law is well-suited to address. Of course they can address this concern short of prohibiting distribution of any maps, by asking the site to indicate clearly the date of its information and its independence from BART, or even by helping to keep it up-to-date.
As reported, the maps' poster has been working to create his own maps to replace the earlier images. Since copyright protects only "original expression," not facts or ideas, it offers thin protection to maps. The transit agencies can't copyright the locations of stations, their names, or the colors and symbols by which the public identifies them. A new map may look very much like the old ones without copying any copyrightable expression. So long as it's clear these are unofficial maps, the trademark "confusion" dissipates as well. I'll look forward to seeing the new maps posted soon -- and then porting them to the Treo!
Cory picked up on PVRblog's coverage of what was eventually determined to be a bug: Users found their TiVos unexpectedly expiring recorded shows.
It might well have been a bug in this instance, but bugs like that don't just come from nowhere, with fully formed error messages alerting viewers that "Due to policy set by the copyright holder, 'Keep until I delete' is not permitted." Maybe it wasn't meant to show up here and now, on broadcast TV, but someplace in TiVo's corporate innards, someone decided that unrequested expiration was a feature.
Nothing in copyright law mandates this "feature." To the contrary, once you have a lawful copy of a copyrighted work, the first sale doctrine says you have the choice whether to save, lend, or discard it, while Betamax says timeshifting creates a lawful copy. If not copyright law, then copyright-holder muscle probably sits behind TiVo's design. Copyright holders work with Macrovision to implement extra-copyright controls, then jointly lean on TiVo to respond to them. Together, they restrict user rights beyond copyright.
The bug also illustrates the fallibility of proprietary technologies (particularly those with automatic update). "Update" doesn't always mean "improve" -- an update can take away functions you've come to enjoy, just because someone else objects. This misfeature of any DRM that implements "revocability" gives "planned obsolescence" a whole new meaning.
Like Cory, I've gone the MythTV route instead. With hundreds of people hacking on its open-source code, MythTV updates really are improvements. Its features are truly features, like commercial skip, time-stretch, transcoding and transfer to other media, plus an open-format music server on the side, giving full access to all the rights copyright reserves to the public. Sorry TiVo, you've been out-evolved.
Robyn alerts me to the USPTO's kids' pages, where they've posted a colorful -- but sharply slanted -- "Put a stop to piracy" campaign. We thought it needed a bit of annotation to help kids understand (red from the USPTO page, black mine):
CAN YOU TELL WHAT'S WRONG?
You hook up a VCR to your DVD player and make copies of your movie collections as gifts for your pals.
Sorry. You try to hook the two together but Macrovision prevents you from getting a clear picture, even when the movies you want to copy are no longer in print or you're trying to extract scenes to add to commentaries. You probably won't be able to find a macrovision-less VCR, because Macrovision has been suing their makers for patent infringement.
You capture pictures from TV shows and post them on your website along with soundbytes that make you laugh.
Great, you've got a pre-broadcast-flag TV setup that lets you make fair use of media. Hold onto it, because if Hollywood and the FCC have their way, you'll be technologically prevented from grabbing these captures in the future. A "soundbyte" sounds ok, just remember that a sound-gigabyte probably exceeds fair use.
You buy a fake pair of designer shoes from a street vendor - they look like the real thing and cost only a few dollars.
Cool, so long as they weren't made by sweatshop labor and you weren't deceived into thinking you'd bought real designer merchandise. You've just saved yourself a bundle and helped the free market. Fashion designs aren't copyrightable, and trademark protects only against consumer confusion.
...Will the phone have a hard drive that can hold thousands of songs? Will you be able to download songs straight from the Internet? Will it have a FireWire or U.S.B. 2.0 connector for superfast music transfer? Will you be able to use your songs as ring tones, so that the phone bursts out in "You Make Me Feel Like a Natural Woman" when your husband calls? ...the answer to all of [those questions] is no.
No, the phone doesn't contain a hard drive. It comes with a tiny, 512-megabyte TransFlash memory card. Incredibly, though, you can only store 100 songs on the phone, tops, no matter how much room is left on the card.
No, you can't use songs as ring tones, at least not the songs you've bought from Apple's music store. (You can use ordinary MP3 files as ring tones, but loading them onto the phone isn't trivial.) This, too, is almost certainly a limitation driven by corporate interests. Cellphone carriers charge $1.50 to $3 apiece for ring tones; Cingular certainly wouldn't want to hand that lucrative business over to Apple's music store.
If you'd rather listen to music on your phone than grouse about these engineered limitations, there's always the open-source TCPMP for Treo or WinCE, which not only plays MP3 and OGG files, but videos too.
More probably, they've found alternatives to the legal protections copyright gives. Like artists everywhere, they copy from the masters. They also have other ways of protecting their authorship interests: Architecture clients need full buildings designed, not just pictures of facades; architects can complain publicly about others who fail to give credit for inspiration, lowering the reputation of someone who copyright law might say has only used an unprotectible idea [see Ellickson]; and the great designers aren't just re-selling their last-years' designs in any event.
As Elizabeth Diller of Diller, Scofidio & Renfro put it, "The only way to avert the problem of plagiarism is to be a moving target. If your work is copied and that upsets you, it means you waited too long to move on." That's a motto more industries should heed.
the past 15 years, EFF has been fighting to preserve the constitutional
right to freedom of expression on the Internet. Founded to protect publisher Steve Jackson Games when its servers were seized, EFF has grown as new technologies -- such as weblogs -- gave citizens their own First Amendment machines.
To celebrate its 15th anniversary this month, EFF is putting these distributed Gutenbergs front and center, holding a
weeklong EFF15 Blog-a-thon
where you're invited to blog about your personal experiences fighting
for freedom online a project that will celebrate new publishing
tools, attract new EFF members, and mark the 15th all at once.
From EFF's Announcement: We want to hear about your "click moment" the very first step you
to took to stand up for your digital rights -- whether it was blogging
about an issue you care about, participating in a demonstration,
writing your representatives, or getting involved with EFF. As a thank
you, we've enlisted anindependentpanelofjudges
to choose from among your posts for "Most Inspirational," "Most
Humorous," and "Best Overall." At the end of the Blog-a-thon, we'll
announce the names of the three bloggers with the best posts on our
website and in our weekly newsletter, EFFector. We'll also publish the
three best posts on our site and send the authors a blogging "kit" as
an extra thank you: an EFF bloggers' rights T-shirt, special
EFF-branded blogger pajama pants, a pound of coffee, and a pair of
Tell us why you became a copyfighter! Visit EFF's blogathon for more
info about participating in and following the posts.
This week the BBC will announce there have been more than a million downloads of the symphonies during the month-long scheme. But the initiative has infuriated the bosses of leading classical record companies who argue the offer undermines the value of music and that any further offers would be unfair competition.
The BBC made all nine of the Beethoven symphonies available for free download, with commentary, as part of their Beethoven Experience.
You'd think that arts leaders struggling to expand their market to younger generations would welcome evidence that downloaders want to give classical a try. Any classical afficionado knows that one performance of Beethoven's Ninth isn't a direct substitute for another, just as baseball fans don't stop watching just because they've now seen the Red Sox win the Series. Instead, hearing and appreciating an intial performance is the first step toward wanting to hear the other greats, in concert or on CD. Those pop fans who realize Gianandrea Noseda's Pastorale fits on their iPods may well be moved to try more.
But instead of welcoming this new audience with offerings of their own, the labels complain that downloads are "devaluing the perceived value of music." They make the same error intellectual property maximalists do -- thinking that "exclusion" equals "value." If few people want to pay for your product, it doesn't have much market value, no matter how much you want to charge. The RIAA's 2003 Consumer Profile indicates just 3% of U.S. music purchases were classical, while BPI reports that in the U.K., classical CD sales totaled under 14 million for that year. Against that small market, a million downloads in two weeks is huge. Labels should focus not on the hypothetical hordes who might buy high-priced CDs, but on the real likelihood that free downloads introduce a wider audience of potential purchasers of a wide range of classical music.
I for one, hope the BBC extends this experiment. Listening to the BBC Symphony's Beethoven First now.
Copyright Prof William Patry addresses derivative works today on The Patry Copyright Blog. He gets to the thorny intersection of the Section 115 compulsory license and newer multimedia discs, such as Super Audio and DualDisc, that contain multiple versions of the same recording.
Issues for compulsory licensing are presented because there is more than one layer on a single Super Audio disc. Two principal questions are: (1) whether some of these layers are merely "transfers" that do not represent new authorship, or, whether some, such as remixes for 5.1 channel surround sound, are derivative works for which a separate compulsory license fee is required unless (2) even though there are as many as three layers on a given disc (all perhaps with different derivative versions), the disc is considered to be one "phonorecord" within the meaning of Section 115, and thus one payment only is required notwithstanding that if the layers were separately released they would require three payments.
These aren't just law exam hypotheticals. About the only thing I've heard make record execs steam nearly as much as "peer-to-peer" is the music publishers' claim that they're entitled to double royalties for "copy protected but computer playable" CDs. The music publishers argue that they're entitled to royalties for each copy of the tracks on disc: one set of CD-audio tracks, often poorly hidden from the computer, and one set of WMA or other DRM'd files "meant" for computer playback. It's arguable that end-users have the music publishers, as well as incompatibility problems, to thank for the market failure of copy-protected CDs.
A friend of mine has a new baby and, with family spread across the globe, likes to use online photo-printing services to share snapshots of the growing baby. She can create an online album, load up photos from the digital camera, and invite relatives to browse and print their favorites. Except when they can't.
It seems one picture, of baby seated against the background of their blue sofa, looked too "professional" for Ofoto (Kodak). Though she was permitted to upload the photo and copy it to her browser (view it online), when she tried to print a copy to hang in the office, my friend was confronted with a copyright-based denial: "Your order has been cancelled because it appears your order contains one of the following... 1. Professional images." She could proceed to print only if she signed an affidavit warranting that she was the photographer or had permission from the copyright owner.
Ofoto's form had no place for my friend to indicate, among other possibilities, that she owned the copyright as work-made-for-hire, or that printing would be fair use. She's now looking for a new online printing service.
[Amateur photographer Zee Helmick had taken photos of her son for a audition, and sent them to Wal-Mart for printing. When she went to pick them up, a Wal-Mart clerk told her] "We can't release the pictures to you without a copyright release form signed by the photographer."
The clerk said the photos looked like a professional had taken them, Helmick said. And no matter how much Helmick protested that she, an amateur, had snapped the shots of her son, she said the clerk wouldn't budge.
Helmick didn't have a copyright release with her, so she offered to write a note stating that she had taken the photos. She said Wal-Mart refused even that.
Copyright can be enough of a problem when copyright claimants make unreasonable demands, but sometimes, it's even worse when you can't find the copyright holder at all. Documentaries dont get broadcast; books don't get published; films don't get restored; digital materials don't get archived, all because they use or incorporate works whose owners cant be traced, so there's no one from whom to seek permission. In many cases, orphan works are lost because no one can authorize their use.
Theyve invited us to highlight comments from round 1 to get your creative juices flowing, so here's one from Daniel Callahan, discussing the problems orphanhood poses for those who want to enjoy or study comic book culture:
The comic book industry is usually perceived as composed of two
publishing entities: Marvel and DC Comics. However, there have been many
smaller companies over the last six decades who have entered the market
and later gone out of business.
As such, surviving copies of the titles they published are rare, and
their preservation as works of commercial art is dubious because of
existing copyright laws. Marvel and DC may easily publish a 'reprint'
volume, but a fan or entrepreneur who would like to scan in or republish
comics whose copyright holders cannot be located remains stymied.
A comprehensive preservation project of these works cannot be done
unless and until the status of orphan works is determined by your
office. Since many of these comics books were not printed on paper
designed to survive for decades, there a window of time in which this
preservation can be done. If the status quo remains, we will most likely
lose many books to decay or neglect.
If this sets you to thinking about ways you or others you know have been affected by the "orphan works" problem, head over to OrphanWorks.org, where we've made it easy to submit a reply comment.
Today, I'll be at Harvard's Signal or Noise?, joined, I expect, by a cohort of bloggers. The first installment helped kick off the study of music and the law five years ago. Join us to see what we've learned (and not yet learned) since.
Switch coasts in a few weeks for the Stanford Center for Internet & Society's Cyberlaw in the Supreme Court, to hear how the Supreme Court might change the debate with its ruling in MGM v. Grokster.
As a copyfighting lawyer, I loved the spirit of tinkering in the air. The whole event was brimming with the spirit of exploration, interoperation, and user-driven innovation. The more people who catch that excitement, the more people we'll have fighting laws that restrict our ability to open boxes and re-use the contents.
The new Treo arrived, and apart from some SIM and Cingular issues, seems to work well. It seems that software patents have stopped it from being even better, though.
The Treo keyboard is very good, for something with chiclet keys, but there are times when Graffiti, Palm's early written-character-entry system, is easier. The Treo 650 doesn't provide out-of-the box access to Graffiti, but it turns out the device still has the character recognition buried inside. Installing the free Graffiti Anywhere enables you to invoke that capability by writing anywhere on the screen.
Great! but here's where patents get in the way. When I first learned Graffiti on the "Palm Pilot" (a name killed off by trademark demands), it used a set of single-stroke characters, with the exception of the standard "X". A pain to learn, perhaps, but quick to enter ever after. I start up Graffiti Anywhere, start writing this is a test, and wind up with 'hls. Hmm.
Then I remember Xerox's patent infringement suit against 3Com. Xerox claimed ownership of a system for recognizing "unistrokes" -- characters written in a single stroke -- and sued. 3Com defended by arguing, among other things, that Graffiti did not infringe because the "X" took two strokes. A bit of Googling and Westlawing turns up a 1997 complaint against U.S. Robotics, a trip to the Federal Circuit, and finally, a 2004 judgment from the Western District of New York finding the patent invalid.
Good news, but (there's always a but), in the meantime, 3Com Palm (now split from 3Com) decided to dot its I's and cross its T's (literally) to hedge its bets against potential damages or injunction: In 2003 it licensed from Jot the more cumbersome two-stroke Graffiti 2.
Or, as PalmOne explained in its 2004 Form 10K
We cannot assure that palmOne will be successful in the litigation. If we are not successful, we may be required to pay Xerox significant damages or license fees and pay
significant amounts with respect to Palm OS licensees for their losses. It may also result in other indirect costs and expenses, such as significant diversion of management
resources, loss of reputation and goodwill, damage to our customer relationships and declines in our stock price. In addition, Xerox unsuccessfully sought and might again
seek an injunction preventing us or Palm OS licensees from offering products with Palm OS with Graffiti handwriting recognition software, even though we have largely
transitioned our products to a handwriting recognition software that does not use Graffiti as well as to physical keyboards. Accordingly, if Xerox is successful, our results
of operations and financial condition could be significantly harmed and we may be rendered insolvent.
Even now that the Xerox patent has been ruled invalid, no one seems to be rushing the original Graffiti back into production. Once again, end-users lose out. A seven-year patent fight leaves even big companies exhausted. So that's why I can't write an undotted "i" on the shiny new Treo. Yet another reason to be glad not everyone's rushing into the software patent game.
As reported by Gizmodo, PalmOne has added $100 to the price of its unlocked Treo 650 GSM only a few days after releasing the product. Most likely, it did so under pressure from the cell phone carriers. I was lucky (or obsessive) enough to get my order in at the original price, but I'm less certain now that I'll want the device when it arrives.
I was willing to pay a premium over the Cingular-locked-subsidized version, because I'm tired of the petty tyranny of cell-phone providers who want to control what users can do with devices they've bought. After dealing with the TMobile-constrained Sidekick, I wanted a device that was open and customizable. Once I've paid for the service, I should be able to choose what data to send and receive, and how to use it.
What PalmOne doesn't seem to understand is that its customers are buying a platform, not just a phone. Those who buy the $400-600 Treo instead of a $100 phone (free with cell servitude) buy it for the rich set of applications available -- many of them developed by other users.
I don't develop for the PalmOS and probably never will, but I benefit from the "virtual network" around an open platform because I can add any of its array of third-party applications. Since every application written makes the platform (marginally) more functional, every developer who joins the network adds potential value. That value redounds to Palm -- without any extra work on Palm's part -- because customers still need Palm hardware to take advantage of this "network."
Raising the price of the full-functioned unlocked Treo turns away those user-developers. By making it more expensive for users to develop for the platform, Palm makes the device less attractive even to the non-developers. By alienating the "alpha-geeks," in Tim O'Reilly's term, Palm has hurt many more than the few hundred people who might have bought the unlocked Treo. It hurts every user of the platform, and its own bottom line. I hope I haven't just bought a $600 paperweight.
We're using MythTV, a remarkably full-featured platform that can manage not only live and recorded television, but also music, movies, photos, weather, even VoIP phone calls. Because it's all Free Software, if you don't see a feature you want, you can code it yourself or find a friend who will.
While the broadcast flag mandate threatens to make TV back into a one-way, watch-only medium, open PVRs like MythTV give control back to us. Cut the commercials and watch only the show; or cut out the game and watch only the commercials, as some I know do for the Super Bowl. Re-mix television to make a point. Build your own Google video.
Watch for photos from throughout the day, and let us know the unexpected ways you use your PVR.
The NYT reports on the current state of the dispute between Project Gutenberg .au and the estate of Margaret Mitchell over posting of Gone With the Wind. Post CTEA, that work is still under copyright in the U.S. but public domain in Australia.
The NYT gets comment from a lawyer for the Mitchell estate -- who's surprised that his cease-and-desist demands had the effect of taking the work offline in Australia. It's not clear what else he expected:
On behalf of the Trusts, we hereby demand that Project Gutenberg and/or PGA confirm to us within five (5) days of receipt of this letter that you have removed GWTW from the Web Site entirely or that you have taken all necessary steps to prevent the downloading of GWTW in all places in which it is protected by copyright.
Given that geolocation doesn't work and legal advice isn't instantaneous or free, for the most part, what did he expect? If it was just to give a scare, that's the kind of chill we don't need more of.
In a victory for free speech and transparency in electronic voting debates, Judge Jeremy Fogel has ruled that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions. Decision here.
copyright holder could have believed that the portions of
the email archive discussing possible technical problems
with Diebold's voting machines were proteced by copyright.
The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCAs safe harbor provisionswhich were designed to protect ISPs, not copyright holdersas a sword to suppress publication of embarrassing content rather
than as a shield to protect its intellectual property.
Last October, Diebold threatened dozens of ISPs with lawsuits if they allowed users to post or link to a Diebold email archive documenting flaws in the company's e-voting technology. Online Policy Group, IndyMedia, and two Swarthmore students, Nelson Pavlosky and Luke Smith, didn't want to cave in, so EFF and the Stanford Cyberlaw Clinic sued Diebold on their behalf instead.
Today, that action was vindicated. Judge Fogel ruled that "there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection." He further held that sending claims of copyright infringement to ISPs when their users are not infringing violates the DMCA's Section 512(f) prohibition on "knowingly materially misrepresent[ing]" infringement. Because Diebold "actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations," it was liable to the OPG and Swarthmore student plaintiffs under 512(f).
Along with opening up the e-voting archives, I hope this decision will give new strength and new weapons to other online speakers and ISPs against the chill of aggressive, improper copyright claims.
Even as the FCC and consumer electronic companies try desperately to push Americans toward HDTV, one Washington Post reviewer joins the crowd throwing up hands at the complexity of it all. Parts don't interoperate well, even once you've upgraded for high-res, and worst of all, that's on purpose:
[T]he link from cable box to D-VHS remains troublesome -- by design. Thanks to an industry agreement, a high-def program can be copied from Comcast box to D-VHS only once. If you stop halfway and try again from the start, a "copy flag" prevents it.
In other words, consumer electronics manufacturers have so far capitulated to the demands of greedy copyright owners that they've built extra failure modes into their devices. It's not enough that the picture might pixellate due to weak signal or bad connections, the industry must punish its best customers (those who have just spent thousands on HD-capable equipment) by breaking perfectly reasonable personal use patterns. Of course, if you're sick of being treated like a thief, you might try an open-source MythTV-based HD-PVR.
a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesnt always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, hell want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.
The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyrights breadth.
We at EFF and Chilling Effects have seen these copyright overreachings frequently too. Sometimes, though, we find a little guy who doesn't want to cave in the face of threats, doesn't want to remove the web posting or excise the portion claimed to "infringe," but wants to fight for his fair use and First Amendment rights.
In the case of OPG v. Diebold, when Diebold claimed that copyright in internal emails entitled it to demand that ISPs remove criticism of Diebold e-voting machines, we took OPG's case and sued Diebold for copyright misuse and DMCA misuse. The way misuse works, if you assert more copyright than the law gives you, you're barred from enforcing any copyright in the work until you stop overreaching. Like the owner of the golden-egg-laying goose, if you ask for too much, you get nothing at all.
Judge Posner recommends the doctrine of copyright misuse too -- and as a judge, he doesn't just blog about solutions, but suggested this one in his WIREdata opinion. Let's hope that more courts, and more lawyers for the little guys, can use this doctrine to keep copyright overreaching in check.
I can speak for myself and my immediate family including my Dad, that we all love it! We've all seen it and passed it along to our friends and family. It's incredibly clever, funny and a nice break from the heavy tones of politics going on right now.... That parody was made for you and me.
Copyright being what it is, however, what Arlo and Cathy think doesn't matter. Nor even what Woody would think were he still alive. Once an author has transferred copyright, barring a termination of transfer, the author's wishes are irrelevant. Woody Guthrie, like many authors publishing commercially, had probably transferred what rights he had to his publisher for contractual royalites, but leaving his heirs no say in the uses allowed of his works.
The alienability of rights may be better than the European droit d'auteur, from which an author can't escape even if he or she wants to, but it probably wasn't foremost in the minds of the Congress that passed the Sonny Bono Copyright Term Extension Act 'for the children.' It's worth remembering, again, that artists and copyright holders aren't always the same people.
"The 9/11 Commission Report," the final report of the National Commission on Terrorist Attacks Upon the United States, has remained at the top of the best-seller lists at online bookstores since its release last Thursday.
The report is topping the Amazon charts despite being uncopyrightable and freelyavailableon the web. It's one of the of the few types of works left -- works of government authorship -- that enters the modern public domain.
According to the typical copyright story playing in Washington, this publication and its profits for the publisher shouldn't have happened. What would be the incentive to publish a book that anyone else could freely read and even republish? Yet it seems that some people still want to read on bound paper, and a publisher can still make money by being first to market at a reasonable price. Of course the newsworthiness of the event and subject had plenty to do with this story, but it helps show, as do and
Lawrence Lessig's experience with it, that total control isn't the only workable business model for publishers.
I'm at PFIR's "Preventing the Internet Meltdown", where today kicked off with a discussion of intellectual property (the other IP). It was a happy surprise to share the stage with Thane Tierney, of Universal Music Group, who shared our horror at the Induce Act and joined a genuine dialogue about the collision between the Internet and the recording industry. He was willing to think about a world in which the record industry shifts its role from controller and distributor to that of filter. I hope we'll be able to continue that conversation with Thane and others in his business, to move toward a solution that leaves the Internet open to innovation and pays artists and copyright holders.
Also on the panel, Ed Felten commented on the one-way ratchet of copyright legislation; Michael Froomkin called on technologists to spec and build speech-enabling technologies (like Tor); and Carrie Lowe of the ALA called our attention to the copyright-driven inaccessibility of material to libraries and the public they serve. I talked about reclaiming the Internet from amid the copyright-dominated debate in Washington.
Whether you like Microsoft or not, you've got to recognize that they haven't gotten to be the richest company in the world through stupidity. DRM is long-term stupid. It's technology designed to make technological products less useful ("Where do you want to frustrate your customers from doing today?"), and it doesn't work as long as there's one determined attacker in the audience.
The DRM moment has been left behind by science. Publishers were looking for pay-per-use and perfect price discrimination; DRM promised it to them. But DRM was backed by bad science. As long as we live in a world where we can still talk to our friends and still tinker with our tools, DRM is doomed to failure. And when it fails at its primary purpose, it succeeds only at driving potential customers to other sources.
In the short term, DRM may help facilitate lock-in to a particular manufacturer's products. Once you buy a few Microsoft media player tracks, it's easier to keep buying Microsoft. But as the format gets less useful, and the media player's requirements become more restrictive, OGG looks more attractive. Sure, it'll take some effort to get your existing tracks back (you might have to convert, re-purchase, or most likely, find clear versions on the Darket), but once you see the gains in flexibility, you're unlikely to look back. Customers jump ship from DRM, with best customers first over the edge. If Microsoft as technology company doesn't see that, it's just ceding its leadership to someone who does.
We put a huge amount of resources into punishing and excluding free riders in many parts of society. But is it because they are actually problem, or is it because they piss us off so bad?
My local CSA's trade box was just another good idea: at the pickup site there is a cardboard box you can drop things you don't want (and would most likely waste) and pick out other people's goodies that they didn't want. It had to be a net positive. Then they decided to make it fair and try to exclude the free riders. There's a sign on the box now that says you can only take something out if you put something in. You know, to keep something in the trade box, i guess.
When you think about it, the problem becomes apparent. If you want everything you got that week you either have to exclude yourself from the tradebox, giving up something that possibly no one else want, or give up something which it may turn out no one wanted, and you would have happily eaten. Most painfully, if no one defects from the system, it guarantees that at least one item will go to waste every week. So the tradebox was a great way to reduce waste, until they decided to kick out the free riders, and it became the vector for waste. But at least it's "fair" now.
Food that rots in the box is the co-op's deadweight loss. At some point, guarding the commons to exclude free riders saps more value than it protects. What's more, today's free rider might be tomorrow's donor or innovator, though those who bridle at "free riders" might be more comfortable with "beneficiaries of consumer surplus." In their determination to stop copyright free riders, copyright holders are causing great social harm.
These problems aren't new to copyright. They just show up here more often because technology has driven the marginal cost of the next copy of a copyrighted work near zero, and peer-to-peer lets independent re-distributors shoulder those costs that remain. As a matter of hard costs, the free rider costs the copyright holder and publisher nothing. So long as we can get over the startup hump -- giving creators enough incentive to get the first copy of a work produced -- we should be able to give everybody access to it.
We may not have all the answers to a perfectly functioning copyright commons yet, but it can't be to assume, as the MPAA's copyright "education" does, that "If you haven't paid for it, you've stolen it."
Only a broken system leaves orphan films to rot because the only ones willing to restore them don't hold (and can't find holders of) the necessary bundle of rights.
The Japanese tend to get cool tech far before it reaches the U.S. This time, though, they're previewing un-cool regulation. The Japan Times Online reports on confusion caused by the Japanese version of the broadcast flag, "a special transmission signal that allows only a single copy of the program to be made."
Measures implemented by NHK and private TV broadcasting companies to control the copying of digital television programs have drawn a flood of complaints from TV users, with some saying they have been deprived of certain editing freedoms. ...
Because programs that have been copied once cannot be duplicated or edited digitally, editing the programs via a personal computer has become impossible.
Broadcasters and copyright holders claim they're concerned about copyright violation, but this "remedy" sweeps much too broadly. The elderly people confused by why their expensive equipment no longer works as expected weren't likely trying to infringe copyright. Neither would a child who wanted to edit a news clip in which she appeared to a size to send to her parents, or a parent recording a cartoon to save for his kids.
Japan's apparently voluntary system offers us a preview of what the U.S. is in for in July 2005, when the FCC's "broadcast flag" mandate takes effect here. Buy now to get your fully user-configurable technology, or prepare to be surprised by what you can no longer do.
The New York Times reviews Jon Rouston's movie theater videos, shots of the screen, audience, and ambience at various opening-day movie showings. Critic's Notebook: When One Man's Video Art Is Another's Copyright Crime. The problem is that this art has been outlawed in many states. That's a side effect of the broad anti-camcorder statutes the MPAA has been pushing on many states, including California, despite the fact that its own insiders leak most movies to the public pre-release (study PDF).
It used to be the critics who'd tell us whether art was good or bad, original or imitative. Now it's the lawyers. As the reviewer comments on art's impoverished field:
It does not matter whether you think that Mr. Routson's work is good or bad art; it is quite good enough, in my view. It does matter that the no-camcorder laws may not do much to stem pirating while making it increasingly difficult for artists to do one of the things they do best: comment on the world around them.
Counsel to Arnold Schwarzenegger sent a cease-and-desist letter threatening a lawsuit against the makers of a Schwarzenegger bobblehead doll. Seemingly oblivious to the fact that the Governor of California is a political public figure, the lawyers demand millions of dollars in compensatory and punitive damages for the "egregious and malicious" "use of Mr. Schwarzenegger's publicity rights."
Best of all, though is the letter's conclusion:
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 copyright infringement and will subject the re-publisher(s) to civil liability for such actions.
You say infringement, I say fair use. Sorry, but I'm not chilled. Thanks Jim!
When Brewster Kahle sees a problem -- preferably a big, hairy, audacious problem -- he's likely to ask, without blinking, "Where do we start?" That's the approach he's taken to his (and our) current task, providing "universal access to all human knowledge."
Where most of us would be overwhelmed by the sheer size of the task, Brewster sees a challenge to be categorized and attacked systematically: Why can't we as a society share with all of our members the learning we've produced? What does that mean? Well, let's say there are 26 million books in the Library of Congress; 2-3 million sound recordings; maybe 100,000-200,000 theatrical releases and as many more video ephemera; 50 million websites; 1000 channels of television. For each chunk, the Internet Archive has a project: The Internet Bookmobile and million book project; live music archive; moving image collections; and, of course, the Wayback machine.
In his closing keynote for CFP, Brewster asked three questions about this universal access to all human knowledge: "can we?" "may we?" and "will we?" He expressed little doubt on the first -- technology can get us there if we have the will. As for the "may we?", to Brewster's credit, he's not willing to let the law block his vision. So he starts with public domain and permission-granted works, and builds. Perhaps that takes us to the point where the archives speak for themselves, begging to be filled first with orphan works, then classics, then ... the sky's the limit.
The New York Times runs a creative piece on Disney's aging mascot, Building a Better Mouse. As its writer tells Mickey's history, the Times has eight artists update the mouse's image for 2004: supermouse, hipster, and aging smoker among them. The article mentions the Sonny Bono copyright extension that keeps Mickey locked up beyond his 75th birthday, but doesn't discuss the copyright status of the illustrations -- fair use transformations or infringing/licensed derivatives? I'd go with the fair use, but would an independent artist or publisher without the backing of NYT-legal have similar confidence?
Ernie does a fair use analysis of the copying of headlines (below) -- an issue of more than passing interest to bloggers and blog search tools that routinely copy headlines or extract them from RSS feeds (as the Trademark Blog picks up). Defenses of implied license for some uses aside, I think the headline republishers have a stronger case than Ernie credits, because copyright does not protect titles, short words, and phrases (see Copyright Office Circular 34). Thanks to that exclusion, librarians don't have to rely on fair use to list books in card catalogues or their online equivalents, and others than copyright holders can prepare indexes directing readers where to find more information. If the subject matter is unprotectable or only slightly protected in the first place, or if the use is "transformative" -- indexing rather than publishing articles, the "effect on the market" is less important.
Elsewhere, and even in pre-Internet trademark law, we've solved these problems by distinguishing among namespaces -- different realms in which the same name can have different meanings. Computer programmers recognize that identically named variables can have different values in different scopes; trademark lawyers of 50 years ago recognized that a "Dawn Donut" in New York didn't interfere with "Dawn Donut" in Michigan. The advent of the Internet should make us more careful in scoping our references, not throw sense out the window by giving contested domain names to the highest bidder.
Says Gleick: To cope with the dynamic, entangled, variegated nature of our information-governed world, perhaps the law just needs to relax -- loosen the cords, instead of tightening them.... The law needs to prevent miscreants from pretending to be people they're not or from passing off spurious products -- but that is all. BODACIOUS-TATAS.COM may be unsavory, but it was not fooling anyone; it was not trying to impersonate the House of Tata; its wares were exactly as advertised.