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.
Well, yeah. We knew that. But this time it's coming from someone inside the record industry - Canada's Nettwerk Music Group, that country's largest record label. Nettwerk are defending (and taking the financial risk of a loss for) one of the victims of the RIAA's jihad on its customers on the principle that the ongoing legal campaign is not helpful to the artists it represents. No kidding, eh?
Another announcement landed in my inbox, this one for "holiday shopping" in case you want to give the gift of music without supporting the Cartel. Freeculture.org has put together a sextet of lists, each with ten suggestions for CDs you can buy while staying outside the grips of the major labels and the RIAA in general.
Brennan Center for Justice Report on Free Expression
Marjorie Heins of the Brennan Center for Justice's Free Expression Policy Project sent me a blurb touting their new report "Will Fair Use Survive? Free Expression in the Age of Copyright Control." The report (PDF) is available online. I have not read the report yet myself, but it's touted as covering threats to both fair use and free expression, at least as these things are understood in US law.
How the Sony DRM Debacle Can Benefit the Digital Music Market
Derek Slaterobserves that DRM proponents, who like to argue that "the market" stops DRM from going too far, don't much like it when the market stops DRM from going too far: "If you think current music DRM restrictions are not so bad, I challenge you: start the 'say yes to DRM!' campaign. And if consumers don't buyyour message, take that as a signal from the market."
Alex Halderman @ Freedom to Tinker: "It turns out that the web-based uninstaller SunnComm provides opens up a major security hole very similar to the one created by the web-based uninstaller for Sony’s other DRM, XCP, that we announced a few days ago."
Cory Doctorow, describing the kind of business models DRM enables: "They take the media that today lets you do everything copyright permits -- timeshifting and quotation, format-shifting and backup -- and they take away all those things. Then they painfully dribble each of those rights back as a 'feature' that you pay extra for. Drip, drip, drip -- each drop of functionality painfully and expensively squeezed into your living room, every time you want to do something you used to do for free. That's not a business-model. That's a urinary tract infection."
I am not a lawyer and so can't hazard much more than a guess, but wouldn't Sony be liable if someone's machine got cracked using the exploit that Sony/BMG installed? They might claim that the flaw lay in the original OS and not in their code, but I can't imagine Microsoft would let that claim stand. Certainly they'd be liable for contributory damages, even if not criminal penalties?
Because the street finds its uses [hyperlink, mine]: "Blizzard Entertainment, the maker of World of Warcraft, has created a controversial program that detects cheaters by scanning the processes that are running at the time the game is played. Called the Warden, the anti-cheating program cannot detect any files that are hidden with Sony BMG's content protection, which only requires that the hacker add the prefix '$sys$' to file names. "
Tim Lee in Reason, criticizing the misleading arguments IP maximalists use to discredit people who support traditional limits to copyright: "By lumping together the very real threat of the government taking people's land with an imaginary threat of IP anarchists abolishing intellectual property, the copyright industry and its allies hope to portray themselves as defenders of traditional property rights. The problem is that their own copyright agenda is a radical departure from America's copyright traditions." Lee has more about framing copyright debates here.
Mark Russinovich has discovered a rootkit on his computer that he believes is part of a DRM scheme for a Sony CD. Like your average malware, it's hidden, poorly written, difficult to get rid of. And according to Russinovich, the EULA says not a peep about it, meaning Sony didn't even bother with the usual pretense of giving people fair warning: "While I believe in the media industry’s right to use copy protection mechanisms to prevent illegal copying, I don’t think that we’ve found the right balance of fair use and copy protection, yet. This is a clear case of Sony taking DRM too far."
Laura Quilter: "The point of people’s support for Google Print is not that we support Google, love Google, or want Google to control our access to information. The point is that Google, and any other entity who wants to do it, should be able to add value to information. Google should not be THE ONE; Google should be ONE OF MANY."
Continuing my long string of flat-wrong predictions, I was apparently wrong again in the RIM/NTP case. SCOTUS has denied RIM's request for a stay while the appeal is considered. Since the appellate court has already denied RIM's request it's entirely possible that an injunction against RIM sales could be enforced in the near future. I've no idea what effect this would have on continuation of service to existing customers. An injunction against that would have tremendous impact and would probably be tantamount to forcing RIM to settle.
Mark Gibbs has a nice piece in Network World discussing the proposal for ID3 tags for music files. The gist is that ID3 tags could be added to any digital encoding format (ogg, MP3, etc) and that these tags could contain information such as table-of-contents. Thus, you could rip a whole album to one file and yet retain the ability to skip around to various tracks within the larger file, using a player that read the ID3 information. In theory, Version 2 of the ID3 tag proposal permits any sort of tag, including very long ones. Given that freedom, it's easy to see that DRMistas and others will have many uses for them, including encrypted watermarks, hidden alternative encodings, and I'm sure you can all think of other amusing nastiness.
Noted tech pundit Walter Mossberg lays it on the line for the intelligentsia, in a column titled "Media Companies Go Too Far in Curbing Consumers' Activities." Mossberg is no copyfighter, but he is very tech savvy and understands just how much DRM can damage existing and emerging technologies. Let's hope that the right people read this column and "get it," too.
Spoke too soon; can't resist pointing you to Cory's new 3-minute elevator speech on what the broadcast flag is and why it matters -- because you know as well as I do that despite recent setbacks, the prospect of unprecedented veto power over new technologies is far too attractive for the entertainment mega-corporations to stop pushing for it. So plans A, B, and C didn't work. Get ready for plan D.
Sad, sad, sad: "The Association of American Publishers filed suit against Google Wednesday, charging the search giant with copyright infringement for its plan to scan and digitize books for its Google Print online library program." Courtesy of Xeni Jardin and Jason Schultz, the actual complaint (PDF). Update: A post containing links to previous Copyfight coverage on the library project is here.
According to WIRED, he's moving to go to work for a start-up in San Diego. No idea what on, though it purportedly involves reverse-engineering. Which, in turn, leads me to note that San Diego is within both US and California legal jurisdictions. And, really, not all that far from Cupertino, either.
Jason Schultz @ LawGeek, in a post explaining why IP maximalists can't plausibly claim to be champions of a "free market" approach to copyright issues: "If they want to mandate and veto the pace of innovation in the tech market for the next 20 years, they should just come out and say that and own up to its criticisms. But to accuse others of being anti-market is cowardly and most importantly, wrong."
William Patry, in a post tracking the evolution of the legal definition of a "copy": "We may be at the end of the road conceptually and semantically when 'copy' can be impressed into banning all sampling and imposing liability for buffering and caching no matter the end purpose."
And as an individual property owner, you might want more control over how your property appears on a map, and whether it appears at all, as well as the right to demand payment.
But the law would be stupid to give property owners that right. Imagine how terrible maps would be if you had to negotiate with every landowner in the United States to publish the Rand McNally Road Atlas. Maps might still exist, but they'd be expensive and incomplete. Property owners might think they'd individually benefit, but collectively they would lose out—a classic collective action problem. There just wouldn't really be maps in the sense we think of today.
Bradley Rhodes, a.k.a. "DocBug," bemoaning the fact that Hymn can't strip the DRM from iTunes 6.0 purchases :"If I'm going to give my hard-earned money for music, it'll be a form where I can play it where I want, loan it to a friend or sell it to a used record store when I'm tired of it." Amen.
Anthropologie Sues Wal-Mart for Stealing Boho Chic
David Bollier on the news that Anthropologie and its parent company, Urban Outfitters, are suing Wal-Mart over allegedly copying the design of two skirts: "In its complaint, Anthropologie claims that Wal-Mart 'has embarked upon a conscious strategy of copying the designs of others as part of its effort to build its "cheap chic" line.' It cites the fact that Wal-Mart opened a 'trend office' in New York’s garment district to track of the latest fashion trends. Pretty alarming, eh?"
Wal-Mart, selling cheap knock-offs of trendy, high-end clothing. The nerve.
Via Cory, NTK's description of the pestilence that is Europe's coming Broadcast Flag: "[This] variant seems a lot nastier: tweaked by Hollywood lawyers to determine at a much finer grain what Europeans get to record off their TVs, where you get to save it, what constitutes a 'family,' and who exactly in open source will be buggered this time."
Alex Macgillivray Andrew McLaughlin has the scoop in a post that explains why Alan Davidson, the former associate director of CDT, joined Google: "Our mission in Washington boils down to this: Defend the Internet as a free and open platform for information, communication and innovation."
Michael Geist has an excellent post on the "take-away" lessons for Canada from the Australian High Court's decision in Stevens v. Sony. Among them: Like Australia, Canada doesn't have to set up a legal regime identical to the one in the US in order to carry out its obligations under WIPO agreements. It can refuse to let copyright holders turn a limited monopoly over copyrighted works into an unlimited right to control what technologists and consumers do with legitimately purchased products -- preserving innovation, free competition, consumer rights, and traditional balance in copyright law.
Jamie Love of the Consumer Project on Technology, in the group's statement on this year's WIPO General Assembly: "The United States government and the European Commission should abandon efforts to use WIPO as an instrument of uncritically expanding intellectual property protection and the protection of their export industries."
Siva Vaidhyanathan's Culture As Open Source; Open Source As Culture is available for download from the "Open Source Jahrbuch 2005" (that's "Open Source Yearbook 2005" for English speakers). According to Siva, the open-source "revolution" isn't really revolutionary, but, rather, about "recapturing and revalorizing the basic human communicative and cultural processes that have generated many good things."
Yahoo has announced that it's working with the Internet Archive, the University of California, the University of Toronto, the National Archive in England, and others on a project to scan books in archives around the world and make them searchable via the Web (NYT coverage). The difference between this new "Open Content Alliance" and the Google Print library project: the Alliance will scan only public domain and freely licensed works, so that the entire collection can not only be searched but also downloaded for free. In addition, you'll be able to search for the books using any search engine -- including Google's.
Peter Suber: Does Google Library Violate Copyright?
The indefatigable Peter Suberprovides what your newspaper can't and won't: in-depth coverage of the debate so far among the experts who usually only get a sentence or two in the Google article du jour, plus links to additional materials and original sources so you can see what's happening sans spin. The bonus: Peter's personal assessment of the situation, which includes the following gem: "On the merits, it's an important question to settle. But I admit that I'm not very comfortable having any important copyright question settled in today's legal climate of piracy hysteria and maximalist protection -- a new world order getting old fast."
Intellectual Property Watch: "After a week of meetings at the World Intellectual Property Organisation General Assembly, the United States is possibly alone in firmly objecting to the continuation of a high-level meeting on a proposal for a WIPO development agenda." Quelle suprise.
Gary Shapiro, head of the Consumer Electronics Association (CEA), speaking before a congressional committee on "Protecting Copyright and Innovation in the Post-Grokster World": "Right now the recording industry is approaching another Senate committee with a proposal to give the FCC broad power to impose design requirements on new digital radios. Unlike the TV 'broadcast flag,' the proposal from the Recording Industry Association of America (RIAA) is not aimed at mass, indiscriminate, anonymous distribution of content over the Internet. The RIAA digital radio proposal is aimed squarely at limiting noncommercial recording entirely within private homes and automobiles."
Microsoft Desperately Searching for Stake and Holy Water
According to Dennis Crouch's Patent Law Blog, the USPTO has once again decided that the Eolas patent is valid. If you've blissfully managed to put this thing out of your brain, let me refresh: this patent won Eolas a half-billion dollars at trial against Microsoft, prompting cries of doom from many corners because it covers a technique that could be considered core to the current Web expereince. The case is presently before SCOTUS but the Patent Office's ruling is definitely a blow to Microsoft.
Drew Clarkcalls attention to a little-reported aspect of the Verizon/Disney deal: "[A] careful reading of the press release put out by Disney and Verizon shows how Verizon is agreeing to do copyright tracking that it refused to countenance on behalf of the RIAA."
Update: Says Fred von Lohmann (via email): "The press release says that Verizon retains the option to either terminate OR wait for a subpoena. So I think, fairly read, Verizon has NOT retreated from its earlier practices. But the mistake is understandable; I thought the same thing until someone pointed out the 'or.'"
The San Diego band Switchfoot, explaining why it has decided to help fans circumvent industry-mandated DRM: "It is heartbreaking to see our blood, sweat and tears over the past two years blurred by the confusion and frustration surrounding this new technology...We refuse to allow corporate policy to taint the family we've developed together." Update: Out-law.com notes that Switchfoot is a Christian band, and "is not encouraging people to steal" but aims to "improve the accessibility of CDs that have been purchased legitimately by fans who then encounter limitations on how they listen to the music."
The UK copyfighters who are creating an EFF-style digital rights group now have a blog, helmed by none other than Corante's own Suw. Check out the BBC article on the group, with photos of a filmmaker, a podcaster, a blogger, and an activist (yep -- it's Cory), plus the question, "Are you a digital citizen?"
In light of a possible likely Chief Justice John G. Roberts Jr., Jeffrey Rosen's excellent NYT Magazine piece on the kind of constitutional battles we'll see in the future is an even more valuable read. Of special interest to copyfighters: Section VI -- Property, Free Expression and the Right to Tinker.
A member of the Pho list, commenting on the news that Singapore's Creative Technology has secured a patent that it claims covers the way music tracks are selected on a device (like, say, the iPod) where the user navigates through a hierarchy of three or more successive screens on the display of the player: "It is my honest belief that the idea of filing things into categories can be tracked as far back as ancient Sumeria."
Brad Hill @ The Digital Music Weblog, responding to the John Borland piece on the DRM Microsoft is building into Windows Vista: "[Borland writes,] 'In short, the company is bending over backward -- and investing considerable technological resources -- to make sure Hollywood studios are happy with the next version of Windows.' Bending over forward seems more like it, but I can understand Microsoft's position."
Next, MPAA Will Pass Stamp Act, Establish Discriminatory Levy on Tea
Derek Slater @ Deep Links, commenting on the news that the international arm of the MPAA is using general search warrants to tackle piracy in Delhi, India: "These kinds of warrants are ripe for abuse. That's why they're prohibited in this country under the Fourth Amendment, which was prompted by British abuses of power during colonial times. The MPA has the right to go after those suspected of infringment all around the globe, but it should be ashamed of using tactics that ignore basic civil liberties."
Via Siva Vaidhyanathan, a new website to help you keep up with copyright scholarship. Check out the latest law review articles by some very familiar folks -- including Sivacracy's Ann Bartow and Copyfight's own Jason Schultz and Ernie Miller.
Jon Stewart, responding to a reporter's suggestion that the producers of "The Daily Show" would take steps to stop people from downloading the program from P2P networks: "We're not going to shut it down -- we don't even know what it is. I'm having enough trouble just getting porn. ...The Internet is just a world passing around notes in a classroom." (Via Derivative Work.)
Here is where you can weigh in on the (de)merits of the Broadcast Flag, which not only threatens to return but has actually garnered new support [PDF] by the Center for Democracy and Technology. Public Knowledge responds here.
Given the ongoing conversation on libraries I couldn't resist blinking this piece from Ananova: Library Lends Out People. The idea is that you can "borrow" a person for an hour to chat about their lives.
William Patry, recalling the legislative process that brought us the Audio Home Recording Act of 1992: "[Our] subjective intention and that of the Committee, expressed in the Committee report, was to exempt all noncommercial private copying. ...[Because] I thought I was just fussing about drafting styles ..., I let it go. That was a big mistake. I missed that the phrasing was the way it was because it masked, in plain view, the real point, the severe limitation of the exemption to copying from a digital audio recording device. Shame on me."
David Warsh's latest piece over at Economic Principals explains why his column isn't a blog (I think he should get over himself, but whatever) and has some interesting remarks on the profession of journalism from a long-time insider. He's also about to try going with a subscription-supported model, at which I wish him luck.
If you're interested in tracking how the major media report stories (or fail to report, see this entry, for example) you might want to add Media Matters for America to your blogroll. In my limited experience they seem to be pretty left-liberal oriented and coverage is pretty scattered. But there are enough gems to be worthwhile, I think.
With nearly six years at Harvard's Berkman Center for Internet & Society under my belt, I can offer a ringing endorsement of it as a place to work and learn. John Palfrey in particular is a fair, kind, and inspired-yet-practical leader; he knows how to guide creative people without stifling their creativity. The faculty members are each one-of-a-kind, once-in-a-lifetime characters with complementary skills for keeping the Berkman Center on the cutting edge of intellectual and technological exploration. The center is hiring right now; if you read this weblog, you probably want to work there, but (perhaps) don't know it yet. Check it out.
Siva Vaidhyanathan recommends a First Monday piece by John Willinsky that looks at the "unacknowledged convergence of open source, open access, and open science" -- developments that share "a commitment to economic principles based on (1) the efficacy of free software and research; (2) the reputationbuilding afforded by public access and patronage; and, (3) the emergence of a freeorsubscribe access model." Looks fascinating.
Berkman Fellow Urs Gasser channels Fred von Lohmann in this Wired piece last week on an inducement-like clause in the proposed EU Directive [PDF] that would criminalize indirect copyright infringement: "Just within Europe you would have to care about many different standards and about what they exactly mean, and what 'inducing' and 'inciting' exactly mean...You may have intended for the software to share files within a company, but later (copyright) movies are exchanged...Would you want to put money in such a firm?"
Update (August 8): For more in this vein, check out Irish pioneer pilloried for file-swap software, in which a tough-talking Conor Flynn, the technical director of an Irish information security company, criticizes Ian Clarke's Freenet because it can be used for "malevolent and malicious purposes." Adds Flynn, "The ability to remain anonymous while surfing the web is dangerous."
Update #2 (3:13 p.m.): Techdirt has a post picking up on the anonymity angle: "The worries are that such systems will be used by terrorists -- but then ignores the idea that in taking away anonymity it opens up the very real possibility that the lack of privacy will be abused, allowing the government to take away free speech from those they disagree with."
Entertainment Industry Pretending to Have Won Grokster Case
Edward Felten, unpacking the entertainment industry's spin on Grokster: "It's a simple message. Investing in technologies that have been blessed by the entertainment industry: right; investing in other technologies: wrong.
But it's not what the Court said. The Court rejected the proposition that P2P or other communication technologies can exist only at the pleasure of the entertainment industry."
Starting to gain some traction in Europe; completely unknown in the US: IPTV. It's pretty much what you'd think from the acronym, an IP-based way to multicast television over the 'net. IPTV News seems to keep pretty good track of what's going on with it.
Mac-tatooedCory Doctorow on reports that Apple's new kernel will make use of Intel's Trusted Computing hardware (Slashdot: Mac OS X Intel Kernel Uses DRM): "Trusted Computing in the kernel is like a rifle on the mantelpiece: if it's present in act one, it'll go off by act three."
Patry on the Senate Commerce Committee on Grokster
William Patry on yesterday's Senate Commerce Committee hearing on Grokster: "Press reports, including this one from Wired, uncritically put out the message committee members wanted: 'P2P pirates We're watching U.' It was, however, a sound and fury signifying nothing."
Coordinator of International Intellectual Property Enforcement
An AP story (here on SiliconValley.com) indicates that Pres. Bush has created a new post of coordinator of international intellectual property enforcement. The first appointee is Christian Israel, formerly of the US Commerce Department. They're using words like "aggressive" which I take to be code language for dealing with countries like China that can't be intimidated by the kind of bilateral trade treaties that the Bush administration has used to pressure smaller countries into accepting US intellectual property regimes.
Copyright guru Ann Bartow has the scoop on the Orphan Works hearings, recommending a number of comments for those of us who just can't read them all: "[If] you want a variety of viewpoints, I'd recommend those by: Allan Adler, Sarah Andrews, Jonathan Band, June Besek, James Boyle, Carol Fleishauer, James Fruchterman, Jane Ginsburg and Paul Goldstein, Peter Jaszi, Michael Keller, Lawrence Lessig, Doris Estelle Long, Annette Melville, Mary Minow, Miriam Nisbet, and Jennifer Urban."
Schneier's CRYPTO-GRAM pointed me at the Hear Your Music aNywhere (HYMN) project, which exists for the purposes of breaking or subverting the DRM in iTunes. This is similar to the "street in real time" posting I made last month but is a much more frontal (and DMCA-violating) attack on a technology. HYMN is also an overtly political project, noting that DRM+DMCA means no room left for fair use, which in their minds includes listening to music you bought from iTunes where, when, and how you like.
Tony Smith writes for The Reg on the latest numbers for digital music sales out of Nielsen SoundScan and the UK's BPI. Year-over-year sales for the first half show a near-3x increase in sales of downloaded singles and full albums. Album sales are down 7% on their own; if you assume that downloading is replacing album sales then the decline is 2.5%.
Bob Cringely writes about his upcoming podcasts for his column and his long-shelved NerdTV project. Props to him for diving in with both feet - he's creating his own distribution network, a "mini Akamai," since PBS won't/can't. It'll be distributed under Creative Commons license to encourage reuse and will come with pre-made clips intended for repurposing.
Edward Felten, who earlier took the Honorable Richard A. Posner to task for embracing a technological "non-starter" for stopping copyright infringment on P2P networks (tagging content + filtering), enters the fray once more -- countering Judge Posner's suggestion that encryption stops copying: "Why do copyright owners keep building encryption-based systems? The answer is not technical but legal and economic. Encryption does not prevent infringement, but it does provide a basis for legal strategems. ...If you make the decryption key a trade secret, you can control entry to the market for players, by giving the key only to acceptable parties who will agree to your licensing terms. This ought to raise antitrust concerns in some cases, but the antitrust authorities have not shown much interest in scrutinizing such arrangements."
Reuters reports (here on CNET) that Sony-BMG have reached some kind of deal (terms unspecified) with iMesh - no surprise there since they hired an ex-Sony-ite as chairman. iMesh is trying to rebirth itself along the lines of Napster - a legit serverless P2P network. Completely unclear to me why I (or anyone else) would want to use this thing.
Movie execs are hopeful that the bigger-than-expected opening weekend for the Fantastic Four movie may have ended a 19-consecutive week slump in which this year's box office sales have been below last year. As noted, there are a number of plausible reasons for the slump, one of which is clearly 'people didn't want to buy what was being produced.' CD executives, please take note.
Over at Deep Links, Fred von Lohmann has more on the entertainment industry's warning shots across the bow for companies that make "Me2Me" technologies like the Slingbox: First Post-Grokster Cold Front?: "Prior to the MGM v. Grokster ruling, these companies needed only to prove that any substantial use of their product is noninfringing. Today, they may be called upon to prove that every use that they ever promoted or advertised is noninfringing."
I don't always agree with Ron Coleman, but he's a great writer and well worth reading & disagreeing with. Likelihood of Confusion has moved; if you're a fan, it's time to adjust the blogroll or aggregator.
After listening to oral arguments in Blizzard v. BnetD, Seth Finkelstein riffs on the elements that bode well for a smart ruling in a technology-related case -- including the judge refraining from using the h-word: "hacker."
The Reg carries a piece by Faultline that gives a few good paragraphs on the actual operation of the DRM systems that EMI and Sony-BMG have announced their intention to use. Pay attention to the bits about what the customer has to do. The user experience for these things matters a lot and it's a good question whether people will voluntarily install an overt copy manager and whether they'll put up with something interfering with their iTunes.
One might think that open access to high resolution 3D scans of Michelangelo's David and other cultural heritage works would be a goal of the works' trustees. Nope. They're busy figuring out how to keep people from "pirating" the data.
Cringely's latest column is a mishmash of observations and speculations on the Apple-Intel news, including setting the record straight on the much-maligned "Osborne effect," discussions of various chip architectures, and an interesting speculation that Intel has more to gain from Apple signing onto their hardware-locked platform than Apple does. Theory being that since Microsoft backed Longhorn off of some of those promises, Intel needs a partner capable of leveraging the hardware.
Michael Geist's weekly Law Bytes column tackles the recent Canadian license granted to three pay radio networks, calling it "the best of a bad hand" and approving of regulators' rejection of anti-copying requirements that the Cartel asked for.
SCOTUS Blog: "The Supreme Court, on a day on which it issued six decisions, released none of the major controversies still to be decided -- the Ten Commandments displays cases, music and movie downloading and copyright, government seizures of private property for private re-development, and access to cable companies' broadband lines for high-speed Internet connections."
Axiomatizing Software Patent/Copyright Terms and Statutes
PATNEWS firebrand Greg Aharonian has offered up for comments his first attempt to connect the myriad of terms and standards used in patent and copyright laws and cases, as they apply to software. The diagram is a mess, which is not surprising considering the forest of conflict it's intended to summarize and formalize. Whether you agree with Aharonian's specific formulation or not, it's interesting to consider an axiomatic (and therefore more formalizable) approach to relating these terms and concepts. An agreed-upon formalization could make for much less confusion in practicing the art and (one hopes) make for more reasonable evolution of intellectual property law into new technologies.
Booga-booga, spyware is coming to BitTorrent. Joris Evers has an overwrought alarmist piece on CNET warning us that if we download self-extracting files and install their contents blindly then we'll get spyware, adware, and cripple our PCs. Woo. Is it just me, or does anyone else feel like this is a kind of "no duh" moment? If you're smart enough to install and run a BitTorrent client, are you stupid enough to install everything you download without checking it out first?
The Reg points to a new research paper out of Microsoft's Cambridge (UK) lab describing a P2P sharing system, called Avalanche, that is designed to overcome some of the limitations of BitTorrent's architecture. The key trick seems to be that, instead of simply chunking the file into blocks, each client performs a re-encoding of all the pieces. Some assembly required on the receiving end, of course. Another nice use of this kind of system is to bollux on-the-wire filtering systems. If your packets are a hash of something unknown it's going to be very difficult to tell if you're downloading naughty pictures, anti-Chinese agitprop, or the latest Hollywood hit.
Rick Lambers @ CoCo blog provides links to MPAA head Dan Glickman's "P2P = = communism" speech (webcast; Word doc) plus a snippet: "[I]f you peruse the Internet, you can find advocates for a radical new movement that believes that all intellectual property should be commonly owned. These people think that copyright laws are too constraining and that the Internet should be seen as a 'global commons' with little regulation and no enforcement of intellectual property laws." Asks Rik, "Who is he talking about?"
Via Ernie Miller via BoingBoing, the latest bit of agitprop from Downhill Battle, which says that for each iPod sold, only 21 tunes it contains were purchased at the iTunes music store. Which of course begs a few questions: 1.) Where do the rest of the tunes come from? and 2.) Why not make it easier for artists to be paid for them? Remind me again why the Induce Act proponents scoffed when EFF suggested the law would target devices like the iPod?
Following in the footsteps of the Academy, which has taken steps to limit screener copies of award-nominated movies, Neil Gaiman reports that his publisher, HarperCollins, has only done 450 individually numbered copies of his latest novel, Anansi Boys. This is cheesing off the small booksellers. Gaiman notes that this is an attempt to combat the "instant secondary market in proofs." Meaning that HC wants the (miniscule) money from this? How likely is it that someone would pay an eBay price for a beloved author's work and not buy/promote the novel itself? Would someone who understands this better than me (or Gaiman) care to take a stab at explaining it?
Via Ernie Miller, an NYT piece on Make magazine that interacts nicely with Denise Howell's observations on the need to rethink copyright law in light of restrictions on the next generation's freedom to tinker: "Beneath all the home-brewed gadgets and cool software tricks lies a sly and subversive agenda. Make, its makers will tell you, is part of a grass-roots rebellion against consumer technology that they say stifles ingenuity by discouraging end-user modification."
Ben Adida @ Benlog, using a parable to explain why it's silly to believe that the European Union is seeking to extend may consider extending the term of some copyrights simply to achieve harmony with the US: "There is a classic French tale about a man eating his bread and cheese, and finding that he finishes the bread before the cheese. 'Un peu de pain pour finir mon fromage,' he asks. And later, 'un peu de fromage pour finir mon pain.' And later again 'un peu de pain pour finir mon fromage' ...It is ludicrous to discuss this issue as if these large media companies wanted anything less than 'forever copyright.' Just because they're asking for it in chunks doesn't make their end goal any different."
Walt Crawford in the June 2005 issue of Cites & Insights, at the end of a feature chronicling the history of the debate over the broadcast flag: "You can support copyright protection and still find the broadcast flag extreme, even reprehensible. You can support strong copyright protection and understand that the flag goes way too far. I do not believe that you can support the broadcast flag, or any variation of the concept, and claim that you believe in balanced copyright or in citizen rights."
Denise Howell @ Between Lawyers, on why copyright needs a collaborative remodel: "The cornerstones of 'thievery' and 'piracy' have been eroded by technology and utility, and by the old fair use standbys of news, commentary, art, education, and science. When your child takes something from a store, you explain why that was wrong and take her back to apologize and return it. When she mods her Xbox so she can back up her games to its hard drive and improve its performance, a similar trip to Redmond is the last thing on your mind. You're too busy considering her prospects and potential."
Fred von Lohmann @ Deep Links, pointing to Warning and Promises, a "letter" to the music industry from a deeply passionate, deeply alienated music fan: "Unauthorized filesharing will only taper off, and things for the music industry will only improve, if and when it starts making music fans happy again. More punishment (whether in the form of 'consumer-friendly DRM' or lawsuits aimed at college kids) is not the answer."
Most conference websites are useful only for the life of the event, withering away on the vine once everyone has packed up their laptops and headed home. David Bollier takes a look at an exception to the rule and provides fresh insight on the conference subject: the role of copying and collage in creativity.
LIS News has a report of increasing shrinkwrap licenses being included with reference books (Books with Licensing Contract on Shrink Wrap). The publisher probably figures some court is likely to uphold the license at some point in the future and then things will be golden.
Not sure who is behind it, but someone is promoting "Fair Use Day" on July 11th.
We think fair use should have it's own "Day", a day to celebrate Fair Use in any lawful way you wish. Exercise your fair use rights or contact a corporation or government of your choosing and let them know you want fair use rights and you want them protected - demand your fair use rights! Use what ever means you have available: phone, email, smoke signals, snail-mail, etc.
There really isn't that much information on the site and they've adopted the unfortunate acronym "FUD." via BoingBoing
Eisenhower warned of the need to guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. More than a few DemocratsIm onecould appreciate the Eisenhowers principles and perspicacity here. Ike saw a need for the military but did not want it to dominate American life. Eisenhower was seeking a middle ground by the standards of the time, and I wonder how he would have felt today about a different complexthe Entertainment-Copyright Complex.
A little hometown interest for me: Mark Jurkowitz is rejoining the Boston Phoenix. In what I can only interpret as a burst of experienced optimism, Jurkowitz is opining that the Internet "levels the playing field" between independent small outlets like the Phoenix and his home for the last ten years, the big-media corporate Boston Globe. We'll see if he's still singing this tune a year from now.
Pioneering creators Kraftwerk talk to Richard Harrington of the Washington Post about the lightness and flexibility brought to their style by shrinking technology. The group now travel with four laptops and a big screen. Props to Harrington for noting how widely sampled Kraftwerk are, going all the way back to 1982 rap & DJ tracks.
Prolific copyfighter Michael Geist blogs that "The Literary Review of Canada's June issue includes my essay on copyright reform in Canada. The essay focuses on the value of the Canadian public domain and the danger associated with potential copyright term extension." (Note PDF format)
Hatch Subcommittee Meeting on "Piracy" Today @ 2:30 p.m.
Via Ernie Miller via Frank Field, a link to the announcement for "Piracy of Intellectual Property," an Orrin Hatch-led meeting of the Intellectual Property Subcommitee of the Senate Judiciary Committee, to be held today at 2:30pm ET. Observes Ernie, "The panel seems stocked with copyright maximalists. For those who are masochists, it will be webcast."
Open Registration for Webcast Conference: "Pirates, Thieves and Innocents"
On June 16-17, the Center for Intellectual Property at the University of Maryland University College is holding "Pirates, Thieves and Innocents: Perceptions of Copyright Infringement in the Digital Age," a symposium on emerging copynorms. It's already sold out, but the Center has just opened its virtual doors: you can check out the live webcast for free. UPDATE: As a Copyfight reader kindly points out, the webcast isn't free, after all; the announcement is simply to alert people that registration for the webcast is open. My apologies for failing to read the fine print.
BitTorrent is previewing a search feature, created in conjunction with Ask Jeeves, that will rate results in terms of relevance and availability on the network. I predict the MPAA will be the heaviest user of this feature. As Poulsen notes in the WIRED story, the likeliest outcome is that the company will find itself at the receiving end of a blizzard of takedown notices.
But never mind that. Pesce says the things we want to hear: BitTorrent will take over the world. New day dawning. Audiences asserting control. It's all stuff I'd like to be true, but I don't see it. Mass markets and social changes are not wrought by will and geekitude alone. He also makes some interesting economic assertions but without even a skeleton of numbers to back them up.
Mark Pesce, another of those people I think is smart even though I don't always agree with them, has started what promises to be a long and thoughtful look at piracy on his blog, Mindjack. I'll likely have more to say after I've read the first entry, which went up at the start of this week. My first thought is just "why did he have to call it 'piracy?'"
Also props to NTK for pointing to Negativland's upcoming project No Business. Their site is offering two free download tracks at the moment and promises a release date near the end of this month for the project that will be focused on "file-sharing, downloading, appropriation, and the supposed collapse of the music business, circa 2005."
Neil Gaiman blogged about a new distribution experiment being carried out by Peter S. Beagle (of The Last Unicorn): "[Beagle has] written a sequel novella, Two Hearts. This is cool. What's just as cool, for those of us fascinated by alternate methods of distribution, is how it's for sale. There are 3,000 of them, signed and autographed. And they aren't for sale. Instead, they come free if you buy (as CD, MP3 or download) the audiobook of Peter Beagle reading The Last Unicorn."
Derek Slater follows up on his argument for a common platform for copyfighters, reiterating a central point: "Encouraging and excusing widespread infringing file-sharing is not only an untenable position, but also greatly harmful to advancing other positions in the copyfight. Again, I don't expect everyone will take this position. However, I think it would be better if more did."
Last Friday's Cringely column has some interesting speculation on the near future of iTunes, noting that there are (currently unused) icons embedded for new formats such as .ogg and .wma as well as video formats, though Apple remains officially mum on plans for "iMovie" and a video iPod.
Kaleidescape Loses Round One; DVD Group Continues Assault on Video Servers
CEPro's Julie Jacobson provides an update on the Kaleidescape case, along with her incisive commentary: "The DVD CCA claims that Kaleidescape's video server 'facilitates and encourages users to make permanent unauthorized copies of copyright protected DVD motion pictures.'
I won't rehash the argument that people who buy $27,000 servers are probably not seeking to screw Hollywood by lending their ripped DVDs to friends who also have $27,000 servers."
It would be ironic to see a Republican Administration and a Republican-dominated Congress turn the FCC into a massive tool of industrial policy, but that's precisely what will happen if any version of the broadcast flag scheme is approved by Congress and sent back to the FCC."
Unsurprisingly, SCOTUS has turned down an appeal by Internetmovies.com against the "good faith belief" provision of the DMCA. The site, which was briefly shut down in response to an MPAA complaint in 2001, had argued that the language of the DMCA statute was unconstitutionally vague. The issue is likely to come around again, one hopes with a stronger case behind it.
More on the "Edelman effect" from Declan McCullagh @ CNET: "The 25-year-old researcher has spent years analyzing how spyware and adware programs work and publicizing his findings. That often results in red faces and, occasionally, lawsuit threats from companies like WhenU and Claria, formerly known as Gator."
Copyfight's own Wendy Seltzer will square off against the MPAA's Dean Garfield in a debate about filesharing this Friday at Princeton University; Ed Felten, who will moderate, has the scoop. Bonus link: Kembrew McLeod's debate with Mr. Garfield on the NPR favorite "Justice Talking" program.
Are Filesharing Penalties Unconstitutionally Excessive?
Via Xeni @ BoingBoing, University of Texas law student Cam Barker's paper arguing that the aggregated punitive effect of the recording industry penalties for filesharing makes them "unconstitutionally excessive."
Susan Crawford on the French ruling against copy-protection for DVDs: "[I] have to say I'm not sanguine about this. I'm sure there are treaties being whipped up that will enshrine DRM as a human right ('consumers require choices of content; such choices can only be made available if adequate legal controls are in place; private copying is in derogation of the Rights of Man' -- something like that), and those French people wanting to make copies for maman will be sent meekly back to the store to buy again."
Three quick links that provide insight into the various ways the copyfight battle is being engaged: in the first, Public Knowledge President Gigi Sohn reveals who supports PK in DC and how that affects organizational strategy; in the second, Cardozo law professor/broadcast-flag burner Susan Crawford reports from the front lines of a highly contentious panel she moderated between copyright moderates and maximalists; in the third, the folks from Downhill Battle provide a fresh resource for newbies seeking to understand what all the fuss is about.
Bush Administration techno remixes. This site ought to be protected by parody and political speech exceptions to copyright laws, but they'll probably get smacked not by the Administration but by the RIAA for the tunes they're mixing over.
George Pike has an intro-level article in InformationToday titled "Patenting the Internet" that points out a trend towards issuing of process patents on basic 'net behavior such as streaming video. The article focuses primarily on an introduction to the difficult patent notion of "novel" and "non-obvious" as these are often contentious claims particularly when people take existing business practices and try to patent them as new just because they've been moved to the 'net.
It's a good intro to the basic concepts of what ought to be patentable, and notes the recent flood of "Internet"-related patents, though it doesn't mention the growing concerns about patent quality. The bottom tagline promises an upcoming discussion of Global Technology vs. Local Patent Standards, which could also be interesting.
Via Siva, a program from the very fine "Justice Talking" show, featuring Kembrew McLeod debating P2P filesharing with Dean Garfield -- current VP and director of legal affairs for the MPAA, former VP of legal affairs at the RIAA.
Frank Field, responding to James Boyle's much-discussed FT column, Deconstructing Stupidity: "Flat-earthers are harmless until they start forcing you to write the specifications for your GPS system in accordance with their views. Then, you're screwed."
Lawrence Solum, in a recent review of Lawrence Lessig's Free Culture: "There is a distinction between effective rhetoric and responsible rhetoric. One can persuade with good arguments and with bad arguments. Does Free Culture achieve its rhetorical effects using stories and arguments that illuminate the future of copyright? Or did Lessig go over the top and take the cheap shots? As much as I admire Lessig and his book, the answer to these questions must be, 'A little bit of both.'"
The student Free Culture movement is one year old today, and Creative Commons has a present -- but according to Larry Lessig, it's still waiting in wings due to...licensing issues. Hmmm...not this kind, I presume...
Derek Slater @ A Copyfighter's Musings, digging much more deeply into the issues surrounding DRM, the DMCA, and consumer choice than either Patrick Ross or I did earlier this week: "[The] real question isn't whether or not to allow DRM. The question is whether to protect DRM with the DMCA. Assuming that some of the offerings DRM enables are beneficial, is securing that benefit worth the cost of the DMCA?"
Fred von Lohmann @ Deep Links, analyzing the much-discussed Family Movie and Copyright Act: "There has been some alarmist reporting about the bill. While it's decidedly a mixed bag, I think the bill should be marked as more victory than a defeat for the public interest side in the copyfight."
Ed Felten on the Family Movie Act, discussed at length below: "Let's review. The FMA prevents no speech. The FMA allows more speech. The FMA prevents private parties from suing to stop speech they don't like. The FMA is not censorship. The FMA prevents censorship."
Henry Farrell @ Crooked Timber, on how tools that enable participatory culture enable everyone to participate -- including those who seek to block from their homes social truths they do not like and would otherwise find it more difficult to avoid: "I buy the argument that some of the key goals of the left can best be achieved through maximizing individuals' control over the conditions of their consumption (and, by extension, maximizing their ability to remix and re-produce cultural goods). But what's sauce for the goose is sauce for the gander. Empowering people to make cultural choices we might 'like' is also going to empower them to make choices that we might dislike too -- [for example] to separate themselves from what many of us would consider to be a minimal shared social consensus on homosexuality."
Starbucks has applied for patents on dual credit cards/customer loyalty cards so it can monopolize the means of tracking you while charging you. (Via Stay Free Daily, birthplace of the Starbucks Delocator campaign.)
Copyfight reader Usher Lieberman sends a pointer to his idea for a business that would accredit blogger journalists. He seems to agree with me that if we don't do it ourselves the courts and politicians are going to force something on us we may not like. I'm not sure a business is the best approach but the discussion is worth having.
Siva Vaidhyanathan does a little ripping & mixing (RTF) with a Creative Commons license himself, in an effort to free his speech(es): "Under the terms set below, I hereby consent to and authorize the use by of any and all photographs, video images and audio taken of me including derivative works thereof, and any reproduction of them in any form in any media whatsoever (such as books, DVDs, etc.), throughout the world at the following event."
(For more on this theme, check out this vividly written post from a couple weeks back @ BoingBoing.)
Lawrence Solum says that this paper by Larry Ribstein is a must-read for bloggers: "Building on blogs' technical features, it identifies the unique aspects of blogs that should have legal ramifications. It then briefly applies this framework to a variety of legal issues."
Metroland Online: "Dennis Karius, a former host of The Portside on WRPI public radio, recently found out just what sort of a climate of fear the recent media and legal attention to copyright violations has spawned. Earlier this year, he lost his radio show as a result of airing audio that he recorded off his television from C-SPAN." (Via Siva.)
Grouper: A Baby Step for Your Aunt, A Giant Leap for Copyright Law
Jennifer Urban in an LA Times article on Grouper, a software program that allows small groups -- say, the members of a family who live far away from one another -- to share the movies and pictures on their computers: "'I want to see my nephew crawl. That's non-profit-infringing.'"
Copyfight alert: Fred and Siva will go to Cornell University this Thursday to debate "the politics of digital copyright" with Alec French (NBC/Universal), Cary Sherman (RIAA), Avery Kotler (Napster 2) and Fritz Attaway (MPAA). That's two against four, but fear not; these two may be outnumbered, but they can't be outmatched!
Continuing his coverage of the future shape of copyright legislation in Canada, Michael Geist notes that a new petition has been introduced calling for a "balanced" approach to copyright. Petition here, P2Pnet coverage there.
Edward Felten on the House subcommittee hearing earlier this week addressing interoperability of music formats: "The hearing is clearly meant to send a 'we're watching you' message to Apple and others, urging them not to block interoperability. Of course, if full interoperability is really the goal, we already have a solution that is hugely popular. It's called MP3."
Robert X's column of last Friday sketches an interesting intersection between the future of television and the long tail of copyright usefulness. Not surprisingly, it's featured on the longtail blog although they're rightly annoyed that he doesn't mention the concept by name. The column is really just a skim over the surface of the idea; it would be interesting to see someone put hard numbers behind this.
Tim Marman of Loosely Coupled, also discussing Creative Commons licenses: "Looking back over some of my previous posts, I realized I came across as a bit of a protectionist. Let me set the record straight: IAAC (I am a Copyfighter), at least by Erik's definition. ...That said, I'm also a realist."
Seems a noncommerical, noninfringing use of a trademark-referencing domain name to me -- and I'll bet the Ninth Circuit would agree.
Update: Via trackback ping, Professor Karl Lenz: "[Starbucks] actually might have a point. The Starbucks Delocator is selling merchandise and might therefore not qualify as noncommercial use."
Interestingly, in the Ninth Circuit ruling I reference above, the court specifically found that a "two degrees removed" (link to a site that links to a commercial site) commercial page is not enough to satisfy the requirement for "use in connection with the sale of goods and services."
Michael Madison, clearly on roll, points to a recent Seventh Second Circuit ruling [PDF] that gives those victimized by End User License Agreements (EULAs) new hope: "If a software user merely 'licenses' the software, then (allegedly) the rights of 'owners' don't apply. Judge Leval decisively and rightly rejects the idea that Section 117 can be bypassed by the software developers unilateral characterization of the transaction as a 'license.'"
Update: Seth Finkelstein weighs in: "I can't see it being much of a help overall. Sure, it'll go into any argument. But I can't see it'll do much good, sorry."
Michael Madison, analyzing a species of technical/legal hack under the DMCA as interpreted by the courts in the Lexmark and Chamberlain cases: "Intuitively, then, this sounds like an extreme version of the sort of design abuse that the court in Lexmark was responding to, and the sort of thing that the federal government tried to fight in the U.S. v. Microsoft litigation. ...Lexmark reaches a sensible result on what strikes me as a somewhat tortured reading of the DMCA. When there is a fight at the Supreme Court over the right of the software developer to design as he or she pleases, when do we take that discretion away?"
FMC's Kristin Thomson (via email): "On Tuesday, April 12, the Future of Music Coalition is hosting a one-day DC Policy Day, where we will apply a laser-beam focus on four critical topics emerging in the courts, Congress, and at the Copyright Office: (1) digital audio broadcasting and the future of radio, (2) low power FM and community voices, (3) health insurance and musicians, and (4) copyright in the courts and Congress, including discussions about the Grokster case and orphan works."
Susan Crawford: "Public Knowledge and the ALA and others have put together a very strong response [warning -- large pdf] in the broadcast flag case. You want standing? They have standing. EFF members would like to slice and morph video and make it available on their blogs. Distance teachers would like to have their distant students see distant visual material. Parents need help with their MythTVs. And if the broadcast flag goes into effect, they'll all be stopped in their tracks."
Alex Halderman's inaugural post @ Freedom to Tinker provides his reflections on the Supreme Court arguments in Grokster (which he attended personally): "What most surprised me was that several Justices repeatedly asked about a standard barely mentioned in the main briefs from either side: a so-called 'active inducement' test...The Induce Act, debated in Congress last summer, would have created a test based on an inducement theory, but it was widely criticized for giving copyright holders too much control over new technologies and making it too easy for them to bring frivolous lawsuits."
Michael Geist, in a new column that brings to mind the wry observation last week by blogger Jewish Bhudda that "copyright is more important than God": "When people camp out overnight for copyright or dissect government press releases about its future copyright policy plans, it is apparent, as Buffalo Springfield sang, 'there's something happening here.'"
Better late than never: Ed Foster's excellent April Fool's bit: "Oh, oh. While the Supreme Court's decision in the Grokster vs MGM case isn't expected for several months, I just stumbled onto something that looks like bad news for the peer-to-peer side. It would appear that the court in an earlier but somehow little noticed decision upheld arguments identical to those made by the music and movie industries in this case."
A last bit of fun to cap the day (and the week of non-stop Grokster coverage): a film clip of Jack Valenti, headed to the Grokster hearing on Tuesday, graciously acquiescing to Annalee Newitz's request that he sign his autograph on a VHS tape. (The tape was later given to Fred von Lohmann as a token of esteem for his tireless work defending the Betamax ruling.)
Joe Gratz, via email: "The Copyright Office posted everyone's Orphan Works comments today, but they formatted the list such that the names and the comments don't line up. I fixed the list and posted the links here." Check out the list for the names of familiar people you may not have realized submitted comments -- like Legal Theory blogger Lawrence Solum. (Thanks, Joe!)
Update (March 31): Joseph Lorenzo Hall in the comments below: "The LoC has disabled access to the main comments site due to having incompletely redacted most of the documents (see this post)... but Joe's posting confirms a suspicion that they haven't actually removed the underlying files from their site (clicking through your links still gives us PDFs that are improperly redacted). I asked if Joe might consider taking his post down until they've redacted the documents (although I plan on calling them and figuring out (1) if they plan on redacting the documents and (2) why we can still get at the unredacted documents).
Katie Dean's "Camping Out for the Grokster Case" has some terrific photos of copyfighters camping out on the Supreme Court steps last night; those red noses make me grateful that many are now headed indoors for CopyNight.
C-SPAN: "Fred von Lohmann, Senior Staff Attorney for the Electronic Frontier Foundation, and Theodore Olson, Former Solicitor General for the Bush Administration (2001-2004) and Representative of the Recording Industry and Motion Pictures Association, discuss the Supreme Court case on sharing music and video files over the Internet."
Update: Via Tom Barger, a working link for "Fred and Ted's Excellent Adventure."