As IP Watch warns, the US Is Determined to Attack Within WIPO. Or something like that.

Good news out of the WIPO meetings we've been following: "Member states of the World Intellectual Property Organisation (WIPO) have sidelined a US government proposal to extend copyright protection for television and radio productions to cover webcasting, a WIPO official said on Monday."

Said Cory, before presenting an open letter from 20 technology companies opposing the inclusion of webcasters' rights, "This coalition shatters the illusion that there is a technology consensus on this issue."

Reads the letter, "One proposal within the Treaty would extend these pseudo-copyrights to the Internet, by means of a controversial 'Webcasting Provision.' While there has been very little support from the national delegations for this proposal, the insistent voice of self-styled representatives of the technology industry has been loud enough to see to it that this proposal has persisted through draft after draft of the Treaty."

Admitted WIPO Deputy Director General Rita Hayes after the proposal failed, "There was no support for it."

I love it when a negotiation process like this actually works, 100 per cent against the odds.

Cory beat me to the punch, but this new column by James Boyle is too good not to risk redundancy. The theme, as Cory writes, is "the crazy way that IP policy gets made" -- that is, without proof that it works for its intended purpose (providing a necessary incentive for innovation). The particular object of Boyle's scorn is copyright-like protection for databases -- something Europe had adopted and we in the US have rejected, but only by the skin of our teeth.

Snippet:

Imagine a process of reviewing prescription drugs which goes like this: representatives from the drug company come to the regulators and argue that their drug works well and should be approved. They have no evidence of this beyond a few anecdotes about people who want to take it and perhaps some very simple models of how the drug might affect the human body. The drug is approved. No trials, no empirical evidence of any kind, no follow-up. [...]

Even the harshest critics of drug regulation or environmental regulation would admit we generally do better than this. But this is often the way we make intellectual property policy.

So how do we decide the ground-rules of the information age? Representatives of interested industries come to regulators and ask for another heaping slice of monopoly rent in the form of an intellectual property right. They have doom-laden predictions, they have anecdotes, carefully selected to pluck the heartstrings of legislators, they have celebrities who testify - often incoherently, but with palpable charisma - and they have very, very simple economic models. The basic economic model here is "If you give me a larger right, I will have a larger incentive to innovate. Thus the bigger the rights, the more innovation we will get. Right?" Well, not exactly.

Absolutely fantastic news: the aspects of the copyright mashup bill that had so many of us worried were dropped before it passed in the Senate this weekend. The omnibus is now a minibus -- S 3021 [PDF].

Kudos to Public Knowledge, the Home Recording Rights Coalition, the Consumer Electronics Association, NetCoalition, and many others for their hard work in this fight.

Says Gigi Sohn in the PK press release:

Consumers won a major victory when the Senate passed legislation removing the most egregious elements of the omnibus copyright bill that had previously been under consideration. We strongly support the version of the Family Movie Act included in the bill, which gives families more control over how they watch movies and television, preserving the right to skip over commercials. The bill will benefit consumers, both in their entertainment choices now, and from the innovation in technology that will result in coming years.

We are also pleased that HR 4077 was dropped from the bill that passed. That legislation would have lowered the standard for copyright infringement. The Senate also wisely removed the PIRATE Act, which would have made the government the entertainment industry’s private law firm at taxpayer expense.

The Senate should also be commended for including in the bill legislation helping to preserve orphan works and reauthorizing the National Film Preservation Board. These features of the bill are important steps in preserving our nation’s culture. We look forward to working with Congress in coming sessions to make further progress in advancing consumer interests and preserving copyright balance.

Reuters has more; so does CNet.

Later: Derek Slater: "Take note again of how much better the public interest is being represented today than just a few years ago. Still playing a lot of defense, but at least it's relatively successful defense."

Ed Foster takes the MPAA lawsuits and the ever-ratcheting penalties for copyright infringement to their illogical conclusion, imagining what kind of punishment lies in store for us when/if file sharing actually harms the off-the-charts successful movie business:

Members of the jury, it is my sad duty today to now present the closing arguments in the prosecution's case against the defendant you know as Ms. X. I say it's sad because we all hoped that the passage of new copyright statutes last year -- popularly known as the Maintaining Mickey Mouse Mandates Act of 2010 -- would sufficiently deter crimes of this nature. As we have seen in this court, that unfortunately did not prove to the case with Ms X.

The facts here are not in dispute. On or about a week ago last Sunday, Ms. X did willfully and illegally obtain on the Internet a pirated copy of the 2008 cartoon feature 'Cinderalla Meets the Little Mermaid.' You heard the government's expert witnesses testify that secret detection technology indicated the film was indeed subsequently played on her television set. And you heard the defendant herself freely confess that she and she alone was involved in this heinous crime.

[...]

As this is one of the first prosecutions under the MMMM Act, you may also not understand why the defendant is not represented by counsel. Let me just assure you that the intent of Congress in this respect was very clear. Movie piracy is a crime that threatens the very fabric of American society. There can be no defense.

Finally, I know even the most hard-hearted of you might feel the state is going little too far in asking for the death penalty in this case. But under the MMMM Act, we in fact have no choice. If the infringement is willful, it is a capital offense.

Update (Nov. 18, 3:45 p.m.): Correction -- Cory is blogging at Deep Links after all.

Contrary to what I wrote below, it looks like all of the running notes from the WIPO meeting on the controversial Broadcast Treaty will be posted in one place: the Union for the Public Domain.

A few intriguing snippets:

A delegate from Brazil, on day one of the meeting:

IP protection should not be an end in itself, nor should upward harmonization proceed irrespective of countries' levels of development. Action is needed in all countries to ensure costs don't outweigh the benefits of IP protection. New norms in the field of copyright and related rights can have a serious impact on the development and social policies of countries in several crucial areas. The provisions of any treaty in this field must be balanced and taken on board the interests of consumers and the public at large.

Access to information and knowledge sharing are essential elements to foster innovation and creativity in the informatin economy. Adding new layers of IP protection to the digital environmment could seriously obstruct the free flow of info and scuttle efforts to create new arrangemets to promote innnovation and creativity.

A delegate from Chile, on day two:

We recognize the usefulness of TPMs [ed. - WIPO-speak for digital rights management, or DRM] for protecting authors' rights and related rights. We're also aware that the application of past treaties with similar provisions have given rise to problems regarding the use of works in the public domain and the legitimate use of protected works. We need to find a way to be sure that these measures don't unduly effect the public domain.

On a more distrubing note, Robin Gross of IP Justice reports that documents prepared by EFF [PDF] and other public-interest organizations have been trashed -- not figuratively, but literally. Copies were found in the waste basket.

The subject line of an email from the Union for the Public Domain (UPD) says it all: "Broadcasters Try to Steal More of the Public Domain this Week at WIPO."

As regular Copyfight readers may remember, the UN's World Intellectual Property Organization (WIPO) took an extraordinary step forward in October when it adopted the Development Agenda -- a proposal that the organization throttle back its "IP Uber Alles" philosophy and tap into its considerable power to spur innovation and help humanity. Starting today, the organization will hold the 3-day Twelfth Session of the Standing Committee on Copyright and Related Rights, and a number of non-government organizations (NGOs), including CPTech, EFF, and the UPD, will be there to urge WIPO to stick to its guns.

My EFF colleague, the indefatigable Cory Doctrow, will pursue four major initiatives on EFF's behalf:

• asking WIPO to apply public-interest considerations in revising the highly controversial Broadcasting Treaty, which proposes the creation of a new and unnecessary layer of pseudo-copyright protection for broadcasters (see EFF's statement [PDF] for details);
  
• joining other NGOs in proposing an alternative draft [PDF] of the treaty -- one that targets the problem (signal theft) rather than adds new rights;
  
• advocating filling in the "negative space" at WIPO -- that is, using the organization to establish a miniumum global set of rights for the public as well as for copyright holders; and
  
• supporting 20 tech companies that will speak out against the inclusion of "webcasters" in the Broadcasting Treaty.
  

Here's the best part: we get to tune in and "hear" what's going on as it happens. Below, two spots to watch for live-blogging from behind WIPO's closed doors:

• The UPD website (front page)
  
• EFF's Deep Links
  

The good people at Public Knowledge have one-stop shopping for learning about and taking steps to oppose the copyright mashup bill that may once again be on the verge of passing.

Michael Grebb @ Wired:

Several lobbying camps from different industries and ideologies are joining forces to fight an overhaul of copyright law, which they say would radically shift in favor of Hollywood and the record companies and which Congress might try to push through during a lame-duck session that begins this week.

The Senate might vote on HR2391, the Intellectual Property Protection Act, a comprehensive bill that opponents charge could make many users of peer-to-peer networks, digital-music players and other products criminally liable for copyright infringement. The bill would also undo centuries of "fair use" -- the principle that gives Americans the right to use small samples of the works of others without having to ask permission or pay.

Update (November 17): PK's updated action alert:

[It's] after the election, and the Senate is holding a lame duck session in an effort to pass what they could not before. This means, just like a Hollywood horror film, many bills are back from the dead. To get them passed, the content industry may try to put all their eggs in one basket and pass one big "omnibus" bill, or they could hitch the bills individually to other bills that have momentum. Regardless, you voiced your concerns before, and we need you to do it again.

StreamCast and Grokster have just filed a joint brief [PDF] asking the Supreme Court to leave standing the landmark Ninth Circuit ruling [PDF] that the two peer-to-peer software distributors are not liable for copyright violations by the people who use their software. At stake in the case is the continued vitality of the Betamax doctrine -- what Fred von Lohmann calls the "Magna Carta of the technology industry" because it "makes it clear that innovators need not fear ruinous litigation from the entertainment industry so long as their inventions are 'merely capable of substantial noninfringing uses.'"

The primary arguments are 1.) the Ninth Circuit ruled correctly in light of Betamax, 2.) it ruled consistently with other P2P decisions in federal courts, and 3.) if copyright law needs to be adjusted in light of P2P, that task properly falls to Congress.

Bonus links:

• StreamCast and Grokster File Supreme Court Brief [EFF]
  
• Stop the State AGs from Supporting Cert [Ernest Miller, Importance Of...]
  
• Big Media Attacks Betamax in Court [Fred von Lohmann, Deep Links]
  
• MGM & Co. petition for certiorari [PDF, EFF website]
  
• Ninth Circuit ruling [PDF. EFF website]
  
• Oral Arguments before the Ninth Circuit [MP3, EFF website] and transcript [courtesy of Groklaw]
  

Dr. Wex @ Blogbook IP:

The NY DA has, no great surprise, filed an appeal of Judge Baer's dismissal of the case against Jean Martignon for selling bootleg recordings [PDF]. J.D. Martignon, a NYC record dealer and owner of the Midnight Record store in Manhattan, was indicted under a 1994 law that made it a crime to ever sell a bootleg recording of a live performance. The problem is that the law didn't specify a time limit; thus, it gave live recordings perpetual protection, something that Martignon's lawyers successfully argued was unconstitutional.

Remember that SCOTUS, in upholding the CTEA, noted that even though the
law provides for very long copyright protection it is still time-limited
and thus technically not unconstitutional. However, the anti-bootlegging
statute (formally 18 U.S.C. sec 2319A) lacked this and thus was found to
be a violation of Congress' copyright-granting authority.

Coverage:
MTV
SF Gate

Previous Copyfight coverage here.

Because if there are, shouldn't the Department of Homeland Security be looking for them rather than personally investigating a potential trademark violation of the Rubik's Cube?

The call came in late July or early August. A man identifying himself as a federal Homeland Security agent said he needed to talk to Cox at her store.
Cox asked what it was all about.

"He said he was not at liberty to discuss that," she said.
They agreed to meet in early August, but the agent later canceled. Cox thought the matter had blown over when the agent called back Sept. 9 to say he was coming out there.

"I was shaking in my shoes," said Cox, who has owned Pufferbelly Toys for more than four years. "My first thought was the government can shut your business down on a whim, in my opinion. If I'm closed even for a day that would cause undue stress."

The next day, two men arrived at the store and showed Cox their badges. The lead agent asked Cox whether she carried a toy called the Magic Cube. She said yes. The Magic Cube, he said, was an illegal copy of the Rubik's Cube, one of the most popular toys of all time. He told her to remove the Magic Cube from her shelves, and he watched to make sure she complied.

The whole thing took about 10 minutes.

Via Siva Vaidhyanathan.

Who knew the Copyright Clause of the US Constitution was under attack?

Well, according to Robert Wright, Chair of NBC Universal, its in critical condition and needs help STAT!:

In Washington to accept a First Amendment award from the Media Institute, Wright, the dean of network chiefs, sent a message to legislators, regulators and whoever else was listening that his company is ready to lead the fight for copyright protection, saying the Copyright Clause is under "enormous pressure and requires our vigilant attention."

...

Wright said that technology, not legislation, is the best solution to intellectual property theft, but he also said that government needed to create "new rules of the road for the digital world...that encourage technological progress yet at the same time uphold the values that make commerce possible."

His suggestions:

1. Support a house Judiciary Committee package of antipiracy bills  "currently in limbo".

2. Find some compromise in the Senate Judiciary Committee on the so-called induce legislation targeted at peer-to-peer file sharing.

3. Support Attorney General John Ashcroft's proposed intellectual property protection recommendations.

Wow.. a First Amendment advocate supporting Ashcroft? Where can I get some of that Kool-aid?

mmm... Kool-aid... (tm!)

The Margaret Mitchell estate is at it again:

Heirs of Margaret Mitchell have threatened the U.S.-based Project Gutenberg and Project Gutenberg of Australia -- charging infringement of copyright.

The Stephens Mitchell Trusts wants Australian Gutenberg volunteers either to remove Gone With the Wind from their servers or else take steps to prevent downloads in countries where copyright law bans unauthorized distribution of the 1936 classic.

Otherwise, a lawyer for the heirs says in email and a certified letter, "we will take all appropriate steps to protect and enforce our clients' rights."

Previous copywrongs chronicled here.

Later Dan Gillmor:

Unfortunately, the constant extensions of copyright terms in some countries has set up this kind of situation. And this sort of situation is one of the things likely to lead to more and more "zoning" on the Net.

Even if the Australia site does attempt to block access to people from some countries, there's no way to make this work 100 percent of the time. Does the Mitchell estate really believe it will have won anything valuable?

The bigger issue, as the TeleRead story indicates, is the prospect that the most restrictive political regimes will end up telling everyone what to do. If the most repressive governments and laws determine Internet governance globally, we're all in deep trouble.

More from SCC's victory over Lexmark's DMCA claim:

"Nowhere in its deliberations over the DMCA did Congress express an interest in creating liability for the circumvention of technological measures designed to prevent consumers from using consumer goods while leaving the copyrightable content of a work unprotected."

"We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case[.]"

"Congress gives authors and programmers exclusive rights to their expressive works (for a limited time) so that they will have an incentive to create works that promote progress. Lexmark’s reading of the extent of these rights, however, would clearly stifle rather than promote progress. It would allow authors exclusive control over not only their own expression, but also over whatever functional use they can make of that expression in manufactured goods. Giving authors monopolies over manufactured goods as well as over their creative expressions will clearly not “promote the Progress of Science and the useful Arts,” but rather would stifle progress by stamping out competition from manufacturers who may be able to design better or less expensive replacement parts like toner cartridges."

Wow.. Talk about a mother lode. I've just finished reading through the Lexmark Opinion from the Sixth Circuit. There's a whole lot of good stuff in it about copyright, fair use, and limitations on the DMCA. Here's my current favorite from one of the concurrences (note the shout out to Larry L's new book!):

I write separately to emphasize that our holding should not be limited to the narrow facts surrounding either the Toner Loading Program or the Printer Engine Program. We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case: by, for example, creating a Toner Loading Program that is more complex and “creative” than the one here, or by cutting off other access to the Printer Engine Program.

The crucial point is that the DMCA forbids anyone from trafficking in any technology that “is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [protected] work.” 17 U.S.C. § 1201(2)(A) (emphasis added). The key question is the “purpose” of the circumvention technology. The microchip in SCC’s toner cartridges is intended not to reap any benefit from the Toner Loading Program – SCC’s microchip is not designed to measure toner levels – but only for the purpose of making SCC’s competing toner cartridges work with printers manufactured by Lexmark.

By contrast, Lexmark would have us read this statute in such a way that any time a manufacturer intentionally circumvents any technological measure and accesses a protected work it necessarily violates the statute regardless of its “purpose.” Such a reading would ignore the precise language – “for the purpose of” – as well as the main point of the DMCA – to prohibit the pirating of copyright-protected works such as movies, music, and computer programs. If we were to adopt Lexmark’s reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures “for the purpose” of pirating works protected by the copyright statute. Unless a plaintiff can show that a defendant circumvented protective measures for such a purpose, its claim should not be allowed to go forward. If Lexmark wishes to utilize DMCA protections for (allegedly) copyrightable works, it should not use such works to prevent competing cartridges from working with its printer. Reading the DMCA in pari materia with the rest of the copyright code supports this interpretation.

The DMCA should be used as part of the copyright code as it applies to computer software codes and other digital media. To this extent, the specific “purpose” language of the DMCA modifies the more abstract language of the previous copyright law. As the Court explains, the fair use exception in copyright law explicitly looks to the purpose of the one making the copy in determining whether or not such copying violates the statute, and the DMCA itself contains a reverse engineering exception that also demonstrates Congress’s aim merely to prevent piracy. I agree with the Court that both exceptions apply to SCC’s actions in this case. But we should be wary of shifting the burden to a rival manufacturer to demonstrate that its conduct falls under such an exception in cases where there is no indication that it has any intention of No. 03-5400 Lexmark Int’l v. Static Control Components Page 22 pirating a protected work. See, e.g., Lawrence Lessig, Free Culture 187 (2004) (noting the danger that “in America fair use simply means the right to hire a lawyer to defend your right to create”). A monopolist could enforce its will against a smaller rival simply because the potential cost of extended litigation and discovery where the burden of proof shifts to the defendant is itself a deterrent to innovation and competition. Misreading the statute to shift the burden in this way could allow powerful manufacturers in practice to create monopolies where they are not in principle supported by law. Instead, a better reading of the statute is that it requires plaintiffs as part of their burden of pleading and persuasion to show a purpose to pirate on the part of defendants.

This just in --- Static Control Corp. has won its appeal against Lexmark over the right to produce after-market replacement cartridges for Lexmark printers.

Read the opinion here

More on the case here.

Check out the new interview @ Engadget, in which our own Wendy Seltzer answers a number of Copyfight-relevant questions. Of particular interest to those concerned about the "plus-copyright" powers of the DMCA: her answer to the question of whether the recent ruling (PDF) in US v. Martignon can help rein it in:

The Martignon decision, finding the federal anti-bootlegging statute unconstitutional because it granted copyright-like protection against live recordings for unlimited times, is an important re-affirmation that copyright is a limited exclusive right, meant to balance public and private interests. In the DMCA fight, we've tried to call attention to the ways anticircumvention blocks access to public domain works whose copyrights have expired [link: EFF comments in Copyright Office rulemaking] - without success so far, but this decision might prompt courts to address those concerns. Judge Baer also ruled that Congress can't use a broader part of the Constitution, the Commerce Clause, to circumvent the limitations of the Copyright Clause. So if we can show that the DMCA's restrictions on speech aren't justified under copyright law, Congress can't make up other justifications.

The Cato Institute held a panel discussion yesterday featuring key negotiators in the discussions on the currently stalled Induce Act -- two from each "side." These are a few of the people who were infamously locked into a room together after Senator Hatch told them to come up with a workable compromise before the Congressional session ended.

For (dis)Content: David Green, MPAA, and Mitch Glazier, RIAA.

For technology/innovation/Betamax: Markham Erickson, NetCoalition, and Gigi Sohn, Public Knowledge.

Below are few very rough notes on the opening gambits from each; I couldn't stick around for the whole thing. You can listen to audience Q&A, etc., here. Fascinating stuff:

David Green begins by digging deep into an old bag of tricks -- attempting to induce, if you will, "shock and awe" over how anyone can get the lastest Hollywood product in mere "seconds" via P2P. He then segues into a discussion about how, no matter what, "everyone" agrees that bad actors must be taken out (if not by Induce, then something else, and soon), complains bitterly about the Grokster decision, and ends by arguing that Induce isn't a new and radical change to copyright law. No mention of Betamax, even while addressing this last point.

Mitch digs into the same bag, pulls out the chestnut about P2P as conduit to porn. Because you must think of the children. Discusses the various drafts; sounds as though he didn't care which one made it past the goal line. Says it's pretty clear to everyone that there is a bad business model here. These actors are bad and need to be isolated. We don't want to hurt the Yahoos and Googles of the world. But these people do need to be stopped.

Gigi starts with Betamax. Larger principles at stake. If this was just about P2P, she wouldn't be here. She calls Mitch on the porn gambit; says it's cynical and unfortunate that he mentioned porn. [People start to clap; she says, "No clapping."] Everyone here has a PC or another innovation, and it's because the Supreme Court found that the VCR is not an illegal copying tool. Technologies capable of substantial non-infringing uses are okay. This is critical. Led to all kinds of innovation. Critical to this economy. The problem with the Induce act, is that it was so broad that almost anyone would be liable. Cites EFF's "brilliant" mock complaint against Apple. Says under the "reasonable person" standard, of course iPod would fall under that. Says we heard all of this, "We won't go after Apple, we won't go after the iPod." But history shows otherwise. Induce would have punished more than bad actors, and further, more than tech companies. Even CNet was getting nervous. Never mind the promises, "No, no we won't sue you." Again, history shows otherwise.

Says she also hears, "We need to get rid of Grokster." But do we? Argues lawsuits are working. DoJ is helping. HR 4077 may even lower the standard for copyright infringement. Legit services gaining popularity, and album sales are up. Finally, spyware is scaring people away from P2P. People talk about impossibility of "competing with free" -- but you can actually do that.

Stresses again that people shouldn't be fooled that this is about P2P -- it's about who controls the future of technology. The content industry wants this. Or govt. controlling it for them. Broadcast flag -- represents kernel of that debate. Who will control: content or tech?

Gigi closes by reading the end of Grokster opinion out loud -- a lesson for content industry, for everyone. "We live in times when quicksilver changes..." Warns: Be careful what you ask for. Because you may kill the golden goose.

Markham starts by stating that "the entire Internet is a giant copying machine." So everything is a peer-to-peer platform. Legislation must distinguish between architecture and everything else. Betamax is the foundation upon which today's tech industry stands. There's got to be something above and beyond architecture. Betamax is responsible for the great products and services we have. Induce Act undermines Betamax. Proponents said they weren't touching Betamax. But our concern was that you were making cause of action irrelevant. The result is explosive litigation over every new tech that comes down the pike. We had reason to fear. So far, the content industry has sued everything that comes down that pike.

Markham says he disagrees that some in tech companies support Induce. Says they all have substantial concerns. His group worked on creating an alt. draft. Thought: secondary liability is case law, not statute. So put in Sony Betamax-like language. BSA had a thoughtful draft. IEEE did, too. Senator Hatch took all the drafts and told Copyright Office to meld/make it work -- it produced two drafts. Behavior-based and business model approach. Smart approach. But problem is that we needed time to work these things out. Hatch wanted to move this out of committee during the session. Told us to go into a room and work it out.

We tried to do that. Problem -- these discussions quickly devolved into a draft with a technology-specific approach. We had a huge problem with this approach. Who is "good," who is "bad"? This is a losing strategy. Future of the Internet is decentralization. Trying to construct this box will have a tremendous chilling efffect. Look at Internet industry and consumer electronics. The future is portability. Guess what? A lot of that content will be distributed over the Internet. They said, "If you're a good actor, you'll win in court." That doesn't help. Not when you need people to invest.

We need to look at the actions, not the tech itself.

Moderator Adam Thierer says Cato has been largely uninvolved. His own position a tough one -- he's an intellectual schizophrenic over copyright. He struggles. A hard sell on copyright policy. His qs for David and Mitch: What about the Sony precedent? That's a good decision. Made lots of money. Clearly we wouldn't have wanted it to come out another way. Why shoot the middleman at all? Analogy to gun debates. Why not just enforce directly against the infringer?

Qs for the other side -- isn't there any role at all for secondary/contributory liability in copyright law? Aren't some people really inducing? What conduct should be clearly illegal? He says the rule is: don't ban or mandate business models to solve copyright problems. But asks, are there exceptions to the rule?

Later: Coverage from Wired: Toe-to-Toe over Peer-to-Peer.

Madisonian Theory dons the little red hood wanders into the woods to explore the levels of copyright use/abuse in three recent opinions. Great stuff:

Too Much Copyright: "The conventional 'copyfight' wisdom is that excessive emphasis on copyright's property-like character can lead to quashing, instead of promoting, innovation and creativity.

Too much copyright (and badly understood copyright) has other pernicious effects. Today's example: the recent opinion of the Supreme Court of Arkansas in Arkansas Democrat-Gazette v. Brantley...The Arkansas Supreme Court...effectively [allowed] the newspaper (or any litigant) to hold up the civil litigation process – not a copyright case, but any case – on the ground that the evidence is covered by some copyright interest."

Too Little Copyright: "Sometimes, though, a little copyright goes a long way. Take Grosso v. Miramax (pdf link to the court's opinion), where the Ninth Circuit Court of Appeals ruled last month that a screenwriter who sent an unsolicited script to Miramax could sue Miramax for breach of an implied contract – a state law claim – after portions of the script turned up in Rounders. This is so, it turns out, even though the Ninth Circuit ruled that the screenwriter's copyright law was rightly rejected on summary judgment."

Just Right: "Once in a while, and perhaps more often than academics sometimes concede, the court gets it right. Take Compaq Computer Corp. v. Ergonome Inc. (pdf link to the opinion), in which the Fifth Circuit Court of Appeals recently upheld a jury finding of fair use....For all of you out there teaching and using ergonomic principles to stay healthy at the keyboard, fear not: copyright won’t stand in your way."

As most of you are no doubt aware, the Department of Justice yesterday issued a lengthy report (PDF) outlining its plans for taking the war against intellectual property "theft" to the next level. So what is John Ashcroft's answer to our copyright infringement problems? As Declan McCullagh writes, "more spending, more FBI agents and more power for prosecutors." Meaning, of course, H.R. 4077/PDEA, which among other things threatens to make automatically skipping commercials illegal, and the widely reviled Induce Act, which would put technological innovation into a deep chill and/or send it overseas.

Ah, but that's not all. The plan also includes:

• Wiretaps for some IP crimes;
  
• "Updating" the law so we can charge intellectual property criminals under US law anywhere in the world, no matter what the local regulations say; and
  
• Education programs to teach children "respect" for copyright law, so they can "Just Say No to Copyright Infringement."
  

The DoJ is evidently claiming that the new "war" will be as "forceful and aggressive" as the war on drugs. And no doubt just as effective.

Not the kind of mashup DJ Dangermouse is famous for. The kind Congress is infamous for. Meet the proposed end-of-the term substitute for H.R. 4077 (PDF) --a.k.a., PDEA Plus.

Ernie has the scoop on what the PDEA is bad for. Below is the official summary of what the Hatch/Leahy-sponsored "PDEA Plus" comprises. And here is an action alert from the good people at Public Knowledge, warning that movement is likely "possibly today or tomorrow (yes, even Saturday!)."

Title I, the "CREATE Act" (H.R. 2391/S. 2192). This title includes the version of the CREATE Act that has passed both the House and Senate.

Title II and Title III, the "Piracy Deterrence and Education Act of 2004" (H.R. 4077). This legislation passed the House on September 28, 2004, and includes the Family Movie Act, as well as legislation substantially similar to the ART Act, S.1932. The substitute modifies the Family Movie Act with bipartisan, compromise language that has been negotiated among the cosponsors and stakeholders. The substitute also includes Section 5 of the ART Act, "Civil Remedies for Infringement of a Work being Prepared for Commercial Distribution," which directs the Register of Copyrights to create a registry of pre-release works in order to better address the problems associated with piracy of creative works before they are offered for legal distribution. Title III designates the national tree as the oak tree.

Title IV, the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004" (S. 2237). The bill passed the Senate by Unanimous Consent on June 25, 2004. The substitute makes one minor change to clarify that the civil enforcement authority created by the legislation and to be exercised by the Attorney General is to be used only in lieu of criminal prosecution.

Title, V, the "National Film Preservation Act of 2004" (based on S. 1923). The National Film Preservation Act will reauthorize a Library of Congress Program dedicated to saving rare and culturally significant films. The language in the substitute includes compromise funding levels to allow the National Film Preservation Board and the National Film Preservation Foundation to continue its important work.

Title VI, the "Preservation of Orphan Works Act" (H.R. 5136). This provision corrects a drafting error in the Sonny Bono Copyright Term Extension Act. Correction of this drafting error will allow libraries to create copies of certain copyrighted works, such as films and musical compositions that, in their last twenty years of copyright term, are no longer commercially exploited, and are not available at a reasonable price.

Title VII, the "Enhancing Federal Obscenity Reporting and Copyright Enforcement Act of 2004" (S. 1933). This measure was reported by the Judiciary Committee on May 20, 2004. The substitute language includes Section 1, Section 2, Section 3, and Section 5 of the EnFORCE Act.

Ted Bridis @ AP catches up with Ernie on the Induce Act, which is officially stalled -- for now.

Edward Felten and Derek Slater examine the latest draft (PDF) of the misguided Induce Act and deliver a one-two punch:

Felten: "This draft is narrower than previous ones, in that it tries to limit liability to products related 'peer-to-peer' infringement. Unfortunately, the definition of peer-to-peer is overbroad....By this definition, the Web is clearly a peer-to-peer system. Arguably, the Internet itself may be a peer-to-peer system as well."

Slater: "It could also apply to Windows networking, which allows sharing of folders over a network that certainly could be considered 'public.' Furthermore, it could apply to IM systems that allow people to send files. 'Locate and obtain' is in no way restricted to your typical search interface; consider an IM service with a chatroom called 'Share Music'(this is basically how sharing on IRC works, with bots that you can query). Even if you think they could successfully defend themselves, they could still be dragged through a money intensive lawsuit. And the boundaries of this definition will be continually pushed my new technologies.

Shall we go on?"

Siva Vaidhyanathan is blogging today @ Eric Alterman's Altercation, and delivers a welcome call-to-arms to readers to join EFF in fighting the Induce Act:

If you are not familiar with the Electronic Frontier Foundation, you should be. This cyber-rights organization is working hard to keep freedom and information flowing over this very medium that you are enjoying right now. The EFF has scored two major victories in the past few months.

First, EFF lawyers liberated Woody Guthrie's song "This Land is Your Land" by showing the publishing company that controls its rights that the song is actually based on multiple works in the public domain, and itself entered the public domain since the early 1970s.

Then last week it took down Diebold, the incompetent electronic voting machine company that had tried stop students and journalists who dared to criticize the company by accusing them of violating the Digital Millennium Copyright Act.

Now EFF is trying to stop a stupid bill making its way through the US Senate. It's called the Induce Act, and it could potentially threaten innovation within industries that produce goods that COULD be used to facilitate copyright infringement: your photocopy machine, fax machine, personal computer, and the iPod.

Thanks, Siva!

Laura Murray has a new article warning Canada not to sign the pending WIPO Internet treaties and explaining the difference between protecting IP for its own sake and protecting culture and creators. Below, a few intriguing snippets:

On copyright rhetoric:
Spend more than a few minutes browsing Canadian court rulings, policy materials, or public hearings on copyright, and you will come across somebody seeking or promoting "protection." "Protection" seems to be a good thing, and somehow copyright provides it, or should be providing it. But protection of what? Protection from what? ... Only a few argue for protection of consumers or those whose creativity builds on copyrighted works, and fewer still the citizenry or the public domain.

On "creator" vs. "consumer":
Even the metaphor of balance has its limits because it posits users and creators as distinct entities placed on either side of a fulcrum. In fact, as many have pointed out, we cannot draw a firm distinction between "creators" and "users": every single person alive on earth is a consumer of culture, and anyone who ever puts pen to paper (or finger to keyboard) is also a creator.

On copyright in education:
Even those who would not presume to the title of artist may seek to respond creatively to pop culture, however clumsily, and a copyright system must acknowledge and enable this participation in cultural production. This is where education comes in: one might hope for a copyright law that would acknowledge students' and teachers' role as participants in culture, not just purchasers of it.

On the copyfight in Canada:
[There] has been, to date, little public activism in Canada concerning copyright reform. It is true that when the government asked for public comment on copyright reform (and specifically digital issues) in 2001, they were surprised to receive 700 submissions. Of these, some 250 consisted of form letters from members of the Electronic Frontier Foundation, and there were a few other submissions from concerned individuals or experts, but most came from educational, industry, and cultural organizations, and many of these piggybacked on each other [16]. Only in the past year has the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa established a profile on the Internet and become active in legal and policy intervention. Michael Geist is the only scholar commenting regularly in the Canadian media on public interest issues in copyright policy and cases.

Cory has very big news, and puts it best:

For years now, progressive elements and copyfighters have been trying to get the UN's World Intellectual Property Organization to start thinking about ways of promoting creativity and development instead of just IP -- to get the organization to see that its raison d'etre is a better world, and that stronger IP laws is just one way of accomplishing that -- and that IP only works sometimes.

We've been foiled at every turn by the maximalists, the movies studios and the trademark offices, the patent-cops and the recording industry lobbyists and the IP lawyers' associations.

Which is why this is such good news: at the general session of the WIPO in Geneva this weekend, the Assembly as adoped a decision to put development and the promotion of creativity front-and-center in its goals. That means that from now on, WIPO isn't an organization that blindly supports more IP no matter what, but rather one that seeks to improve the world by whatever tool is best suited to the job.

More information available here; previous Copyfight coverage here and here.

Michael Geist on why Canada should follow the UK, not the US, for culturally healthy copyright policy:

The United Kingdom provides an excellent model for such policies. In recent months, the British Library has unveiled an ambitious plan to digitize and freely post on the Internet thousands of historical newspapers that are now in the public domain. Similarly, the BBC has established the BBC Creative Archive, which will allow users to download clips of BBC factual programming for non-commercial use, where they can be stored, manipulated and shared.

[...]

Policy makers should also recognize that even ratification of the WIPO Internet treaties will not satisfy many rights holders, who have continually sought new rights that might increase their earnings. In the United States, the U.S. Congress has recently been considering proposed legislation called the Induce Act, which could conceivably regulate a wide range of electronic equipment including popular devices such as Apple's iPod.

Canadians can expect similar proposals to surface here as rights holders have left little doubt that the WIPO Internet treaties represent only the tip of the copyright reform iceberg.

Ernie has a great post gathering commentary & analysis of yesterday's crushing defeat for fair use/reverse engineering/open-source programming in the BnetD case. He also offers his own .02, highlighting the decision's oddities:

If you reverse engineer for interoperability, in order to do the same thing as another program, apparently that extends "into the realm of copyright infringement." What that means is unclear. Why it takes away your defense under § 1201(f)(1) is similarly unclear. Is the program infringing or not? If not, why don't you get the exemption?

What the heck can you use the reverse engineering exemption for under this logic? You can interoperate, but only for purposes that are entirely different? Huh?

I also like the part that open source software is more likely to violate the DMCA because it has "limited commercial purpose." You see, if you don't or can't sell it, you are even more evil according to this ruling.

Geez.

Madisonian Theory, meanwhile, manages to capture all of its wrongness in a single sentence: "It's a disaster of an opinion, from the court's uncritical acceptance of Bowers v. Baystate as authority for enforcing a 'no reverse engineering' shrinkwrap license, to the court's whimsical application of the DMCA's anti-circumvention rules to the so-called 'secret handshake' between each Battle.net game copy and the authorized Battle.net server software."

It seems to me that most unfortunate thing about this ruling is the power it gives companies to crush the competition. What copyright giveth (fair use, reverse engineering for interoperability), contract via clickwrap buttressed by the DMCA taketh away. A reader over @ Freedom-to-Tinker observes that "This ruling even implies that the only way to do it is to ask the copyright holder for explicit permission. I'd love to see that: 'Mr. Software developer, I'd like your permission to become your competitor.'" Me too. And pigs growing wings.

Could the tide be turning?

Or is this just a way to take the debate behind closed doors?

...on the Induce Act, and comes out on the right side:

Throughout the ongoing battle over Senator Hatch's controversial Induce Act, the dividing lines have been clear: the RIAA on one side, and the technology and telecommunications industries on the other, with one puzzling exception -- the Business Software Alliance. The BSA did appear at Senator Hatch's initial hearing on the Act, but other than that has been surprisingly quiet in the debate over subsequent drafts of the bill and the effort to defend the Betamax doctrine.

Last night, all of that changed. In a strongly-worded letter [PDF 65k], BSA (along with CSPP and the ITIC) told Senators Hatch and Leahy in no uncertain terms what's wrong with Induce and what any bill that expands copyright liability would need to pass muster.

Phew. Better late than never. But next time, make it sooner.

..or maybe two.

The Washington Times brings us some choice words from Richard Lessner on the Induce Act and its sponsors: "Unfortunately, this misguided legislation's chief sponsor is Utah's Sen. Orrin Hatch, a Republican who should know better and who once aspired to serve on the Supreme Court. Sen. Hatch, sometime songwriter, is close to the music industry and is happy to carry the water for this trial attorney boondoggle."

Meanwhile, the New York Times offers an amusing point/counterpoint exchange between the RIAA's Mitch Bainwol and cyberlaw prof/Yale ISP fellow/broadcast flag waiver/rising blogstar Susan Crawford:

"Napster was shut down because it had a centralized server," [Bainwol] said, referring to the father of peer-to-peer file sharing that was forced to shut down in 2001, and later reopened as a pay service. Soon after Napster's initial collapse came the decentralized peer-to-peer networks that are now at the center of the debate. "These decentralized systems exploit a loophole. They make money on advertising and their business model is based on theft."

While that may be true, opponents of the Induce Act say that the bill's language is so sweeping that many other technologies may be in danger of being caught in its grasp. They argue that innovations as common as the VCR - or Xerox machines or the iPod - would never have come about if their inventors had toiled under the threat that some users might misuse the technology.

"This is not just closing loopholes," said Susan Crawford, a professor of Internet law at the Cardozo School of Law in New York. "They're creating nooses."

Two pieces for those of you following how the Geneva proposal for a smarter and more humane WIPO is being received:

• Activists Challenge UN Intellectual Property Pact: "'We are not against intellectual property rights, however we are for intellectual property rights that strike the right balance,' said Martin Khor of activist organisation Third World Network" [Stuff NZ].
  
• Development Needs 'Override Intellectual Property Protection': "[S]upporters of a 'development agenda' claim that, under pressure from industrialised nations, WIPO continues to give undue weight to strengthening intellectual property rights such as patents, trademarks and copyright, at the expense of the public interest and other means of fostering innovation and creativity" [Financial Times].
  

Later: Via Cory, running notes from CPTech's Thiru Balasubramaniam, taken from inside the WIPO meeting.

Derek Slater: "The bill itself lists many 'findings' about the state of piracy and that it must be counteracted, but there seems to have been no research regarding whether heightened criminal enforcement under lower standards would be beneficial. Much the same can be said for the Pirate Act's allowing the feds to go after infringers as a civil offense. No one at the hearing even thought to compare the war on piracy to the war on drugs. Moreover, on a more concrete level, there's not even the most rudimentary evidence regarding whether these prosecutions and lawsuits would have any practical impact."

...from Declan @ CNet:

Geeks now have a political action committee of their own.

Three technology activists, including a Google product manager and an organizer at the Electronic Frontier Foundation, have formed a political action committee that aims to help pro-technology politicians and defeat the ones who want to expand copyright law.

Called IPac, the group is already planning to help out Democrat Brad Carson, who's in a tough race for the U.S. Senate in Oklahoma.

"Our main target is going to be the 2006 election, but during this election cycle, a few good opportunities came up," said IPac's Ren Bucholz, who manages EFF's grassroots activism network. In the last few years, Congress has been increasingly active on intellectual-property topics and is currently considering controversial bills to target file-trading users and products that could "induce" someone to violate copyright law.

Previous Copyfight coverage is here.

Yesterday, the House passed the Piracy Deterrence and Education Act (H.R. 4077) -- a.k.a., the "bad PDEA" (here's a bit about the good one).

Declan McCullagh has a solid piece on what the legislation will mean if it becomes law. But what I haven't seen yet is a discussion about what this means in the context of the push for the Induce Act.

Here's a worst-case scenario: We have a House copyright bill (PDEA) and a Senate copyright bill (Induce). November rolls around, and 'tis the season for appropriations. Someone takes out the scissors and tape, and PDEA and Induce become PDEA+Induce. There's an appropriations bill that looks a little lonely. Suppose we staple PDEA+Induce to the bottom? That way, it'll be sure to sneak by -- because you can't hold back government.

I've pasted a copy of the floor debate on the PDEA below. It's difficult not to get cynical about the way a bill become law; the transcript suggests that there has been very little opposition to the PDEA. At the same time, there are glimmers of hope here and there -- Representative Lamar Smith is careful to distinguish between laws that penalize behavior and those that penalize the technology itself. He even goes so far as to say that peer-to-peer technology "is an essential development of our Nation's high-tech economy."

Here's another reason for hope: it's a brand new PAC to support legislators who will stand up to the entertainment industry on intellectual property issues. It's called IPac, it's nonpartisan, and it aims to promote three core principles:

# Creators of ideas and inventions have the right to be compensated for their work, but not to limit political expression, veto technological innovation, or restrict education and scientific research. [read why]

# Intellectual property laws should be judged by their potential to foster new creativity, as required by the U.S. Constitution. [read why]

# Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits. [read why]

We've been waiting for an effective "Geek PAC" for a long time; I've signed up and am crossing my fingers that IPac will take off. We need many more speedbumps in Congress if we want to stop bills like the PDEA and Induce from driving right on past.

Continue reading "PDEA + Induce = Very Bad Law"

Fred von Lohmann has yet another cogent, compelling post on the misguided Induce Act, this time explaining why the ACU (PDF) and the National Taxpayer's Union are not fans:

[Let's] call [the Induce Act] what it is: a tax on innovation. Technology companies would find themselves under constant pressure from entertainment industry lawyers waving their newly-minted "inducement" law. This means many great products would be hobbled, and many others would never be built. Less flexible, less useful products means fewer sales, lower revenues. That's a tax on our nation's technology companies, a damper on earnings, a drag on competitiveness.

And all for nothing - this tax won't magically solve the file-sharing dilemma, nor will it put a nickel into the pockets of artists.

That's why the Amercian Conservative Union and National Taxpayer's Union have both joined the long list of public interest and technology industry groups opposing the Induce Act.

I'm a copyright lawyer. I believe in copyright. But copyright has never given an oligopoly of media companies a veto over new technologies.

On that note, EFF today joined forces with Downhill Battle for a new anti-Induce initiative. If you want to make an impact on the debate happening this week in the Senate, do check it out.

Later: Also via Fred, a few numbers to put the RIAA's push for the Induce Act in perspective:

IBM 2002 operating revenues (from annual report) = $81b
Verizon 2002 operating revenues (from annual report) = $67b

Total 2002 annual revenues of motion picture and video industries
(from CBO Report) = $62b
Total 2002 annual revenues of music industry (from CBO Report) = $13b

So IBM's annual revenues are larger than the entire music and motion picture industry ***combined***.

Verizon's revenues alone beat the movie biz.

In addition, Intel's annual revenues are ~$30b (more than 2x the entire music industry).

Q: What gives the movie and music industries the leverage to demand legislation that will levy an innovation "tax" on the technology industry when the tech sector is contributing so much to the economy?

...to the Induce Act, courtesy of the good people @ Public Knowledge.

Later (11:00 a.m. PT): And another, courtesy of the good people at the American Association of Law Libraries:

AALL Action Alert
September 28, 2004

Stop Induce--Mark-up Sept. 30th
Calls/Emails Urgently Needed NOW to Members of the Senate
Judiciary Committee

BACKGROUND:
AALL has opposed S. 2560, the "Inducing Infringement of
Copyrights Act" (Induce Act) since it was introduced by Senate
Judiciary Chairman Orrin Hatch and Ranking Member Patrick Leahy
in June. The bill is strongly supported by Hollywood and the
recording industry because of their concerns about peer-to-peer
(P2P) file-sharing networks which they say are used mainly by
consumers to illegally share copyrighted materials.

If enacted, S. 2560 would make companies and other Internet
service providers (ISPs) liable if their software or technology
"induces" users to violate copyright laws. AALL is a member of a
large, diverse coalition that opposes this bill because we
believe strongly that the solution is not to ban technology
simply because it can be used to “induce” consumers to make
illegal copies. S. 2560 outlaws technology, not bad conduct, and
P2P technology is in fact used for many important legal purposes.
The bill is so broadly drafted that it has many unintended
consequences far beyond targeting those who infringe copyright.

ACTION NEEDED:
S. 2560 has undergone many revisions, and a substitute bill will
be marked-up this Thursday, Sept. 30th. Please contact your
Senator immediately, by phone or email, if he's listed below as a
member of the Judiciary Committee.

Express your grave concerns about:

1. THE PROCESS. There have been no hearings on what is now the
fourth version of the Induce Act. Rushing a bill that implies a
fundamental realignment of our intellectual property system
through mark-up and to the Senate floor with no hearings is
wrong.

2. THE SUBSTANCE. If enacted, this bill could constitute the
greatest threat to date to the innovation processes that the
copyright and patent laws were intended to promote.

• The proposed legislation defines “induces” as
simply manufacturing a product or offering a service; therefore
it wrongly targets commerce rather than conduct.

• The narrow exceptions it provides to this
extremely broad definition of inducement are full of loopholes;
therefore it will not provide meaningful protection to legitimate
businesses and services.

MEMBERS OF THE SENATE JUDICIARY COMMITTEE

Orrin G. Hatch, Chairman (R-UT)
Charles E. Grassley (R-IA)
Arlen Specter (R-PA)
Jon Kyl (R-AZ)
Mike DeWine (R-OH)
Jeff Sessions (R-AL)
Lindsey Graham (R-SC)
Larry Craig (R-ID)
Saxby Chambliss (R-GA)
John Cornyn (R-TX)

Patrick J. Leahy, Ranking Democratic Member (D-VT)
Edward M. Kennedy (D-MA)
Joseph R. Biden, Jr. (D-DE)
Herbert Kohl (D-WI)
Dianne Feinstein (D-CA)
Russell D. Feingold (D-WI)
Charles E. Schumer (D-NY)
Richard J. Durbin (D-IL)
John Edwards (D-NC

If your Senator is listed as a member of the Judiciary Committee,
you'll find a link to his/her email address at http://www.senate.gov/general/contact_information/senators_cfm.cfm

If you prefer to call your Senator's office, the U.S. Capitol
Switchboard is: 202-224-3121

Michael Geist's most recent column on the copyright crisis in Canada kills two birds with one stone, explaining 1.) how current and pending copyright law and policy is threatening innovation, and 2.) what the Canadian government can do to stop it.

The piece dovetails nicely with the announcement last week of the Geneva Declaration on the Future of the World Intellectual Property Organization, which argues that WIPO should help nations do what Professor Geist proposes for Canada: adopt IP law and policy to foster innovation and help humanity rather than merely to promote international "harmony."

Thanks to Larry and Joe Gratz, here's the opinion (PDF) in US v. Martignon, in which a district court in the Southern District of New York struck down the anti-bootlegging provision of the copyright act because copyright cannot live forever.

Writes Larry:

The opinion is fantastic. The Court concludes (1) that antibootlegging regulations are "copyright-like" regulations, and thus are within the scope of the Copyright Clause, (2) that this regulation violates the Copyright Clause because it doesn't have a limited term (citing Eldred (sweet justice)) (And remember, the 11th Circuit's case expressly did not consider the limited times argument), and (3) that Congress can't use the Commerce Clause to do what it can't do under the Copyright Clause, so long as the subject matter is "copyright-like."

I have always been a fan of Judge Baer, but never more than today.

Ernest Miller is back from Rathergate with a new IT Conversations audio program on the many alternative drafts of the misguided Induce Act.

Later (4:27 p.m. PT): Just had a visit with the charming Mr. Miller, and he tells me he has a scoop of some kind that he'll soon share, so be sure to stay tuned to Importance Of...

Later #2 (4:45 p.m. PT): ZDNet catches up with Jason/BoingBoing, running a piece on the American Conservative Union's opposition to the Induce Act.

Later #3 (5:00 p.m. PT): Just finshed listening to Induce 2.0. It's among the most informative, interesting conversations about Induce that I've heard. And I've heard many. A must-listen.

Later #4 (Sept. 25): Ernie posts the draft of Induce that the Senate will mark up (PDF), and says it's "more narrowly drafted with carve outs for everything that EFF had in their original mock iPod complaint" but "retains many of the provisions, including the incredibly vague 'reasonable person' standard, as well as other issues."

Whaddaya know (reg. req.):

A U.S. law criminalizing the sale of bootleg recordings of live performances is illegal because it doesn't limit the life of a copyright, a judge ruled in the case of a Manhattan man indicted for selling concert tapes.

U.S. District Judge Harold Baer struck down the law, which carries a five-year prison term. He didn't address a related civil statute. U.S. copyright law limits protection of a work to the life of the author plus 70 years, Baer said. The criminal anti-bootlegging act runs afoul of that legal standard because it "grants seemingly perpetual protection to live musical performances," the judge said.

[...]

The case is U.S. v. Jean Martignon, 03cr1287, U.S. District Court, Southern District of New York.

Later (Sept. 25): This I didn't know: Larry Lessig worked on this case, and will soon have the scanned opinion posted. The short of it: "It says (1) this is copyright-like, (2) must be under the Copyright clause, and (3) commerce can't supplement. "

Joe Gratz has more on the context, promising still more once the opinion is posted: "In the last notable criminal bootlegging case, United States v. Moghadam (11th Cir. 1999), the court went through some pretty deep constitutional analysis, holding that the statute was enacted under the commerce clause and rejecting Moghadam's appeal that the statute is invalid because it is inconsistent with the Copyright Clause's fixation requirement. Moghadam failed to raise the 'limited times' issue, so the court could not invalidate the law on these grounds, though it seemed inclined to do so."

I find it extremely sad that educators are forced to "plea bargain" with copyright holders over how students can use the Internet to learn. This CBC piece on the battle in Canada over proposed changes to Canada's Copyright Act shows just how the desperate the situation has become. It lays out The Rules for what we in the US might call "fair use" for educational purposes -- rules that strike me as profoundly anti-education:

[Students and teachers could use] online material, but [there are] limits:

• It only applies to students in a program under the authority of an educational institution.
  
• Students and teachers would have to cite the source of the web materials used.
  
• It excludes online content that has limited access, such as those requiring a password.
  
• Institutions would still have to pay for CD-ROMS, licensed software and web courses.
  

That's right, kids. No unauthorized learning allowed in this precinct. You're not registered to learn at an accredited school, you ain't gonna learn. Keep it on the straight and narrow. And please, guys, document every step you take, and have your parole officer -- I mean, your authorized teacher -- sign at the bottom.

The sad thing is, these are the rules that the educators themselves proposed, in a desperate attempt to carve out some way for students to learn without having access to knowledge metered and sold in chunks, to the highest bidder (or more accurately, wealthiest school district). [Note: it turns out the situation is even more complicated than it appears; see Michael Geist's recent column for details.)

One of the most extraordinary things about the Internet is that it helps bring more people more tools for education more cheaply than ever before. It's just astounding to me that our culture is so concerned with putting the wine back in the bottle that we would rob our own children of access to true -- that is, unfettered, self-guided -- learning.

Guy Kewney, asking how American copyright extremism/expansionism might influence the rest of the world (emphasis, mine):

If I copy all the stuff off my iPod onto my hard disk, using software written in Taiwan, can I be pretty sure American senators won't try to get economic sanctions against the author on the grounds that he's 'inducing' me to break copyright?

The fact is, of course, that technology changes. People listen to music on Ipods today, not on CDs. Inevitably, sales of CDs go down.

But looking back, when CDs came in, sales of vinyl went down and nobody thought it was right to create laws to protect this. Nobody should try to inhibit the mp3 trend just because it's harder to copy-protect them than it was to prevent CD duplication.

If you think I'm being unreasonable, just remember: when video cassette recorders first appeared, American movie makers sued Sony to prevent them from being made and sold.

The Supreme Court, in 1984, decided that this was stupid. It said there were "significant non-infringing uses" for the technology. By one vote: five judges thought it was fair to let Sony sell VCRs, four thought it wasn't.

The point is, it's insane to imagine that the US can pass laws prohibiting copyright breaches on the Internet unless, somehow, it thinks it can prevent them across the whole of the web. Not just in California, or Utah, where Orrin Hatch resides, or in Afghanistan, but everywhere.

And all based on a completely bogus understanding of how technology advances.

Hatch thinks that Sony versus Universal was the wrong decision and should be reversed. He said so. So if you want his definition of 'a reasonable person' then it's a person who thinks that simply owning a VCR is the same as being 'induced' to break copyright.

You don't want to know what he thinks a broadband connection and a PC could do in the mind of a 'reasonable person'. I just wish I had a comfortable feeling that he wasn't going to try to impose his version of 'reasonable' this side of the Atlantic.

There's a battle going on at the World Intellectual Property Organization (WIPO) -- one that could accurately be described as a struggle for the soul of the organization. The central question is whether WIPO will coninue to promote the protection of intellectual property for its own sake -- IP "uber alles" -- or, as a number of developing countries and others are advocating, pursue a range of initiatives that reflect such notions as "balance," "innovation," or "access." What's at stake is much more significant than the harmony or disharmony of IP regulations. As James Boyle points out in his Manifesto on WIPO and the Future of Intellectual Property, WIPO decisions affect everything from the availability and price of AIDS drugs, to the patterns of international development, to the communications architecture of the Internet.

Jamie Love of the Consumer Project on Technology (CPTech) has been working at the front lines of this battle for many years, and today he forwarded a document proposing that WIPO formally adopt a "development agenda" and other reforms to unlock the organization's considerable power to help humanity. The document, called the Geneva Declaration on the Future of the World Intellectual Property Organization, lists a number of problems that a new direction for WIPO could address:

• Without access to essential medicines, millions suffer and die;
  
• Morally repugnant inequality of access to education, knowledge and
  technology undermines development and social cohesion;
  
• Anticompetitive practices in the knowledge economy impose enormous
  costs on consumers and retard innovation;
  
• Authors, artists and inventors face mounting barriers to follow-on innovation;
  
• Concentrated ownership and control of knowledge, technology, biological resources, and culture harm development, diversity, and
  democratic institutions;
  
• Technological measures designed to enforce intellectual property rights in digital environments threaten core exceptions in copyright laws for disabled persons, libraries, educators, authors, and consumers, and undermine privacy and freedom;
  
• Key mechanisms to compensate and support creative individuals and communities are unfair to both creative persons and consumers;
  
• Private interests misappropriate social and public goods, and lock up
  the public domain.
  

So what's the antidote? According to the declaration, the key is recognizing the opportunities implicit in the "astoundingly promising innovations in information, medical and other essential technologies, as well as in social movements and business models" and resolving to act upon them:

Humanity stands at a crossroads -- a fork in our moral code and a test of our ability to adapt and grow. Will we evaluate, learn and profit from the best of these new ideas and opportunities, or will we respond to the most unimaginative pleas to suppress all of this in favor of intellectually weak, ideologically rigid, and sometimes brutally unfair and inefficient policies?

[...]

The proposal for a development agenda has created the first real opportunity to debate the future of WIPO. It is not only an agenda for developing countries. It is an agenda for everyone, North and South. It must move forward. All nations and people must join and expand the debate on the future of WIPO.

[...]

Delegations representing the WIPO member states and the WIPO Secretariat have been asked to choose a future. We want a change of direction, new priorities, and better outcomes for humanity. We cannot wait for another generation. It is time to seize the moment and move forward.

Absolutely.

Love and other supporters are seeking additional signatures. If you're interested in signing, send an email to CPTech and the good folks there will guide you through the process.

In an evident attempt to counter the efforts by a broad coalition of tech companies and public interest organizations (PDF), Downhill Battle, Public Knowledge, and many, many others to the stop the fast-moving Induce Act in its tracks, the National Arts and Recording Academy -- e.g., the group behind The Grammys -- has created its own pro-Induce action alert:

The U.S. Senate is considering the "Inducing Infringement of Copyrights Act of 2004." In the words of its chief Senate sponsor, the bill would allow legal action against "corporations that profit by encouraging children, teenagers and others to commit illegal or criminal acts of copyright infringement." The Act is supported by the Recording Academy and more than twenty other music industry organizations, and has been cosponsored by a bipartisan group of Senators.

For some time now, the only legal recourse to address illegal file sharing has been for the industry to sue individual computer users. This bill provides a good alternative; it puts responsibility in the hands of companies that profit by encouraging illegal use of your intellectual property.

We need your help. Please ask your Senators to support the "Induce Act." This system will send an email to your Senators. If you are a Recording Academy member, a printed copy of your email will also be hand delivered by the Academy's Washington, D.C. office.

It only takes a minute to have your voice heard. To begin, simply type your zip code in the box above. Thanks for your support of artists' rights.

I'm told that this alert just went out to all 20,000 members of the Recording Academy. If you're reading this and haven't yet visited the EFF action center to tell Congress you oppose the Induce Act, now is the time to do it. It's clearly not too late for the public to make an impact on this process.

There's a new Hollywood Variety piece (ad-view req.) on Friday's coalition letter (PDF) asking Senators Hatch and Leahy to put the breaks on the Induce Act, which could see some movement in committee as early as tomorrow. It's short but sends precisely the right message, especially in stating unambiguously that "The Induce Act would usher in the most sweeping changes to current copyright law since the U.S. Supreme Court blessed the VCR in 1984."

Luckily, as Jason points out at Deep Links, the companies that could be targeted by any or all of the competing versions of the bill are now stepping forward. The question they're finally asking: "We've got two weeks to weigh the merits of a bill that would reverse the doctrine that brought us twenty years of technological innovation?"

If you prefer to write rather than call, you can use EFF's Action Center.

Below, the text of the Copyright Office's second "consensus" draft of the misguided Induce Act, to which Ernie referred earlier today; more to come.

Later: Fred von Lohmann @ Deep Links, arguing that the proposal would break the Betamax doctrine: "If this isn't about using copyright law to squash disruptive technological innovation, I don't know what is. Transport yourself back to 1976, substitute the word 'reproduction' in place of 'public dissemination,' and you would see the VCR and the cassette recorder banned. Today, because any effort to ban those kinds of private copying technologies would result in public outcry, the Copyright Office takes aim at the technologies of the future: wireless and networking."

Later #2: Derek Slater: "Better, but still incredibly, superbly rotten...Short story: send in the accountants! Let's ask all businesses to open up their portfolios to see where their revenue comes from and base everything on the product's current uses without paying any attention to potential uses."

Later #3: Joe Gratz: "Even under the revised bill, something like the EFF's iPod complaint would probably get past summary judgment.

And that means the bill must be stopped, even though it's guys like me who would be able to rack up untold billable hours fighting off bogus INDUCE lawsuits."

Later #4: Bob Schwartz @ Wired: "The copyright office is now suggesting the exploration of a new and radically unprecedented approach to copyright law. It would not require that a defendant in a copyright suit have any knowledge of infringing conduct, any relationship with a particular infringer or any intent to commit a violation of the law."

Later #5: Downhill Battle: "Is Congress insane? You might think so at first glance. Voters, technology experts, public interest groups, and electronics manufacturers all oppose these efforts to weaken Betamax. So why is it still happening? Because the major record labels and the movie studios -- the same companies that opposed the Betamax ruling -- make huge donations to the re-election campaigns of the Senators who are sponsoring this legislation. And most members of Congress assume this is a non-controversial issue, off the radar of most voters. If they can please their donors without a big fuss, they will. It's bad policy, but until we start making noise, it's smart politics."

Continue reading "What the Fox Proposes for the Henhouse, Part 2"

One way that movie and music industry groups work to tip the copyright balance in their favor is by sending reps to tech standards groups and WIPO negotiations, where they push for "modernization," "harmonization," or "unification" of copyright law. Below, a snippet from the latest Greplaw interview, in which Professor Thomas Hoeren of Germany lifts the lid of these euphemistic terms to reveal the true nature of the negotiations:

Greplaw: Why do you think the Europeans are so non-visible in the international debate on digital copyright and other Internet regulation issues?

Dr. Thomas Hoeren: First, US lawyers are very powerful in fighting for their copyright model in the world. They often tend to believe that US law has "of course" and "naturally" to be applied in all parts of the world. Europe does not have this "terminator feeling." We have a tendency to stress the differences in legal systems, the incompatibilty of different cultural values in regulating i.e. the Internet. And we are too self-referential, focusing mainly on European or even national problems. Thus, we are not trained as US lawyers are to enforce EU ideas on an international level. If you attend to a WIPO meeting, you regularly see a lot of well-prepared top experts representing the USA - and a few EU representatives who always complain about being badly informed and prepared.

We'll likely have some more here @ Copyfight on the Copyright Office's "consensus" draft of the misguided Induce Act, but in the meantime we have a choice quote from Will Rodger (culled from Declan McCullagh's updated CNET piece):

"First it was the Hollings bill, then Induce, now the Copyright Office's bill. They look different, but they all revolve around the same thing: Giving content (providers) veto power over all new technology. Who decided that holders of government-granted monopolies should determine the future of high tech? I don't remember reading that memo."

This just in:

Skylink has won its DMCA case on appeal. It's a lengthy and interesting unanimous opinion by Judge Gajarsa, with some real gems reining in some of the overbroad and much-abused language of Section 1201:

The DMCA does not create a new property right for copyright owners. Nor, for that matter, does it divest the public of the property rights that the Copyright Act has long granted to the public. The anticircumvention and anti-trafficking provisions of the DMCA create new grounds of liability. A copyright owner seeking to impose liability on an accused circumventor must demonstrate a reasonable relationship between the circumvention at issue and a use relating to a property right for which the Copyright Act permits the copyright owner to withhold authorization-as well as notice that authorization was withheld. A copyright owner seeking to impose liability on an accused trafficker must demonstrate that the trafficker's device enables either copyright infringement or a prohibited circumvention. Here, the District Court correctly ruled that Chamberlain pled no connection between unauthorized use of its copyrighted software and Skylink's accused transmitter. This connection is critical to sustaining a cause of action under the DMCA. We therefore affirm the District Court's summary judgment in favor of Skylink.

Continue reading "Skylink Wins! Fed. Cir. Shoots Down Chamberlain's DMCA Claim"

...as demonstrated by its editorial, which bemoans the Grokster decision [PDF] while showing how beneficial the precedent has been to copyright holders.

The opening line states that "a federal appeals court in California has given the green light to massive copyright violations facilitated by Grokster and other file-sharing services." The court gave a "green light," all right, but it wasn't to "massive copyright violations." It was to companies that create technologies capable of both infringing and non-infringing uses.

A bit further on, the piece asserts that "The [Grokster] judges contend that the remaining 10 percent [of uses] constitutes substantial legal use as defined in the Betamax decision. That is a stretch. VCRs are most commonly used either to time-shift TV programs or to play movies that are legally copied and provide billions of dollars in revenues to the movie industry."

Er, well, actually, the only reason why people are now using the VCR mostly to "play movies that are legally copied and provide billions of dollars in revenues to the movie industry" is that the Supreme Court gave the green light to a company (Sony) that created a technology (the Betamax VCR) capable of both infringing and non-infringing uses.

The very fine weblog writer & copyfighter Joe Gratz favors us with a clear, succinct executive summary of Chris Sprigman's Reform(al)izing Copyright [PDF], a forthcoming Stanford Law Review article that proposes to restore the traditional balance to copyright law by bringing back copyright formalities that have all but entirely disappeared. Interestingly enough, these formalities will be "voluntary" -- but if you don't participate, a default license kicks in.

According to Joe, this paper, along with the aforementioned article by Judge Posner and William Patry, "lays the foundation for a new battle in the copyfight, focusing not on the optimal length of the copyright term but on the optimal set of conditions a copyright system should demand of parties claiming exclsuive rights." We've only just begun to explore this particular avenue of post-Eldred strategy.

Snippet (emphasis, mine):

[These] formalities weren't just annoying ministerial requirements, traps for the unwary included for the sake of tradition. They were smart economics. They caused works to exit copyright's system of exclusive rights when the economic value of that exclusivity was exhausted.

So, Sprigman asks, what can we do now? The Berne Convention, to which the United States acceded soon after its elimination of formalities, prohibits formalities as a condition for copyright protection. We can't just reinstate formalities going forward. Sprigman sees renewal as the most obviously economically important formality; exclusive rights that are economically worthless to the rights-holder but potentially valuable to other parties are a dead-weight loss to society. Sprigman proposes a system of "new-style formalities" – voluntary notice, registration, deposit, and renewal. If a copyright holder decided to opt out of the system of voluntary formalities, their work would be subject to a "default license." The license fee, payable from the user to the copyright holder, would be set such that the full cost of compliance and the full cost of noncompliance are roughly equal.

In a conversation on the Cyberia-L email list, CIS Fellow Chris Sprigman argues that Judge Posner's suggested "fix" for the copyright term extension problem is flawed because it may not pass muster under the Berne Convention, and, by extension, the TRIPS accord. So in a forthcoming issue of the Stanford Law Review, Sprigman will propose his own solution: restoring to copyright law the sort of formalities that copyright holders like Ludlow Music, Inc. have occasionally messed up.

An advance copy of Sprigman's piece is available [PDF] @ the CIS weblog. I haven't read it yet, but something tells me Joe Gratz has. Perhaps he'd be kind enough to offer us an executive summary?

CNET reports that today marks the unveiling of the "Don't Induce Act" -- a proposal by SBC Communications, Verizon Communications, the Consumer Electronics Association (CEA) and others to narrow the proposed Induce Act to reduce the threat to the technology sector.

Unsurprisingly, the MPAA and RIAA are already attacking the proposal as dishonest and ineffective. I haven't seen it yet, but here's CNET's nutshell description:

The Don't Induce Act describes three requirements that would have to be met before a software distributor could be found liable: The "predominant" use of the program would have to be the mass, indiscriminate infringing redistribution of copyrighted works; the "commercial viability of the computer program" would have to be dependent on revenue derived from piracy; and the software distributor would have to have "undertaken conscious, recurring, persistent and deliberate acts" to encourage copyright infringement.

The proposal would also indemnify venture capital firms, payment services, financial services, Internet service providers, librarians and e-mail utilities. If the measure becomes law, anyone filing a "baseless lawsuit" under the Don't Induce Act could be heavily sanctioned with damages that are triple what would normally be levied.

Because the measure would only apply only to "commercial" activities, the proposal would not target free or open-source P2P clients.

Update: Ernie Miller has both cover letter and Don't Induce Act text. His take? "Frankly, my immediate reaction is that I am not so enamored of this proposal. It seems overly tailored to one particular use of technology. While I appreciate the narrowness of the drafting, I don't really like the special case it adds to copyright law."

Ernie Miller is interviewed over at O'Reilly and (no surprise) provides plenty of excellent answers to the question.

Here's just one:

Koman: So, assume that this was passed. How debilitating a hit would it be to technological innovation?

Miller: It's hard to overestimate it, to be honest. It would be incredibly debilitating to investment and innovation across the board, to anything having to do with the Internet, anything having to do with computers and the ability to copy. First of all, there's no clear boundary as to what is legal and what is not. There's no bright line defense. As long as they can provide some evidence that a reasonable person could think some technology was intended to induce infringement, then the lawsuit has to go all the way to the jury. You can't get it dismissed very easily. That's very expensive.

There's no limitation on who can be sued. Not only can the company making the device be sued, but under the Induce Act they can sue the company that invested in the company, they can sue the company that provides parts and supplies to the company, they can sue business partners, they can sue the advertising agencies. If you come up with something that's a really wonderful, neat new product but Hollywood won't like it, who's going to do business with you, who's going to invest in you? It's going to be incredibly difficult to do business, and that's going to dry up investment to no end. It's scary how far-reaching this is.

Hiawatha Bray of the Boston Globe today runs a sweet piece on "Where we go from here" after the Grokster decision (A Swan Song For The Music Industry):

For those of us who despise the file-swappers as larcenous hypocrites, it's not a happy verdict. But it's well nigh impossible to dispute it. The judges simply pointed to a crucial 1984 Supreme Court decision that protected the rights of Americans to own videotape recorders. The movie industry scowled that these devices would enable people to practice a lively trade in pirated movies. The court responded that VCRs could also enable a fellow working the night shift to watch "The Waltons" when he got home. And because the technology had "substantial noninfringing uses," VCRs could not be banned, even if they could also be used for illegal purposes.

The so-called "Betamax case" liberated technologists to create CD and DVD burners, portable MP3 music players, and music-ripping software, secure in the knowledge that they couldn't be sued for it.

Alas, it also provided running room for the Groksters and Kazaas of the world. The managers of these companies know full well that their products encourage music theft, but insist upon pretending, like Sergeant Schultz, that they know nothing.

Well, now it doesn't matter what they know. As long as their software has legitimate uses, as well as corrupt ones, it's legal.

Republican Senator Orrin Hatch of Utah must have seen this coming. Hatch went out on a limb a few months back, proposing a federal law that would ban products that sought to "induce" copyright violations. In this space, I defended Hatch against the scorn of outraged technologists, who insisted the new law would have stifled the invention of the Apple iPod and other tech goodies.

But I changed my mind when Marybeth Peters, the chief of the US Copyright Office, praised the Hatch bill because it would undermine the Betamax case. If that happened, the next generation of digital marvels would be buried in an avalanche of injunctions, depositions, and discovery motions. No thanks, Marybeth. We'd rather learn to live with digital thievery.

The Electronic Frontier Foundation, an Internet civil liberties group, plotted the file-swappers' victorious legal strategy. The foundation also has a plan for the future of recorded music, a plan that gives artists and producers a hope of collecting at least some money for their work.

It's simple, really. Everybody who uses peer-to-peer software would pay a nominal monthly fee into a fund owned by the music industry. The foundation figures $5 a month. After all, those who pay are now allowed to download all the music they want. And there'd be no restrictions on what they could do with the files. They could make as many copies as they wanted, and play them on any device. Meanwhile, a computer would keep track of which tunes were downloaded, and the money in the fund would be doled out in the right proportions to artists and publishers around the world.

It's not a particularly radical concept; it's how radio and TV stations pay royalties to the music companies. The foundation estimates that about 60 million Americans currently swap music files, and that most of them would gladly pay a measly $5 a month to become law-abiding citizens. That works out to around $3.6 billion a year, without the cost of producing physical CDs.

The music makers have sneered at this idea for years, but that was before the federal courts had their say. Right about now, the EFF plan might look pretty good.

Ernie Miller has a comprehensive round-up on the decision, plus additional analysis of its possible impact on --you guessed it -- the push for the Induce Act.

Later: Fred von Lohmann has more @ Deep Links:

The Ninth Circuit's ruling in MGM v. Grokster today clarified four points of incredible importance to innovators of all stripes, including peer-to-peer developers:

• The Court made clear that, for purposes of the "Betamax defense" announced by the Supreme Court in 1984, the important question is whether a technology is merely capable of a substantial noninfringing use, not the proportion of noninfringing to infringing uses. The opposite rule, urged by the entertainment industry, would kill off new technologies prematurely, as infringing uses tend to be common until the incumbent entertainment industries adjust their business models to take advantage of the new opportunities created by the new technology. (When there were no pre-recorded videocassettes, the VCR was doubtless used for more infringement than it was after there were Blockbusters on every corner.)
• The Court also explained that, in order to trump the Betamax defense, a copyright owner must show that the technology developer had (1) knowledge of specific infringments (2) at a time when it could do something about those infringements. The entertainment industry, in contrast, had argued that it should be enough to simply deliver a pile of "infringement notices" to the technology developer after the fact. Such a rule would have imperilled all kinds of companies. (Imagine Xerox receiving a pile of infringement notices about photocopiers that it had sold the year before -- should it be liable for infringing activities at every Kinkos in America?)
• The Court also clarified that copyright law does not require technology developers to design only the technologies that the entertainment industry would approve. The plaintiffs had argued that vicarious liability principles should be interpreted to require that all innovators design their technologies to minimize the possibility of infringing uses. Of course, short of inviting Hollywood lawyers into engineering meetings, such a rule would have left innovators subject to eternal legal harassment for "not doing enough."
• Finally, and perhaps most important, the Court observed that, in the long run, a competive, unfettered market for innovation ends up helping copyright owners (even if it doesn't help today's entertainment industry oligopolists). In fact, today's ruling will likely be remembered as yet another example of the courts rescuing the entertainment industry from its own short-sightedness. In the words of the Court, "Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through wellestablished distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player."

David Israelite, chairman of the US Dept. of Justice's Intellectual Property Task Force, has been out and about discussing how the DoJ will be taking a much more active role in intellectual property enforcement. From an AP story published in the Williamson County Review Appeal, the agenda of the task force is clear (Federal government takes aim at music piracy):

The federal government plans to more aggressively attack intellectual property theft, a near "epidemic" that has hit the music industry harder than any other, a federal official said Monday.

"The music industry deserves special attention from the Department of Justice because as an industry you have done more to help yourself more than any other industry that is experiencing theft of property right now," David Israelite, chairman of the U.S. Justice Department's Intellectual Property Task Force, told a group of songwriters at Belmont University.

The industry has battled music piracy, or illegal downloading of music on the Internet, through lawsuits, advertising and "any means necessary," Israelite said.

Except, perhaps, changing their business model like other industries do when faced when changing economic circumstances. Heck, even Israelite acknowledges that the music industry was slow to permit legitimate downloading, according to an article in the Tennessean (Ashcroft aide attacks copyright infringement):

Israelite was also somewhat critical of the music industry, saying the industry should have offered legal downloading more quickly.

You think?

Of course, getting back to the task force, which is supposed to make suggestions to Ashcroft come October, they may be looking at getting local law enforcement involved:

Part of the problem with enforcement is that copyright violations are a federal crime only, so the states and local law enforcement are not involved, he [Israelite] said.

"That makes it very difficult to go after mass copyright theft," he said. "If you had shoplifting at the rate you had digital theft from copyright violations, you'd have about 800,000 total police helping you."

Like local police have the resources and expertise to handle copyright infringement cases. Great.

via I/P Updates

The New York Times has a wonderful Op-Ed on copyright this morning (In-House Advice) praising the recent Congressional Budget Office report on Digital Copyright for its even-handedness and slamming Congress for kowtowing to the RIAA on the INDUCE Act:

Last week the Congressional Budget Office released a new report called "Copyright Issues in Digital Media." It should be essential reading on the Hill. The report upholds exactly the kind of evenhandedness that has been missing in much copyright legislation so far.

"Revisions to copyright law," the report argues, "should be made without regard to the vested interests of particular business and consumer groups."

The real test should be the economic efficiency of the marketplace - finding a way to balance the social benefits of a technology, like videocassettes, against the fears of copyright-owning movie studios.

The best way to accomplish that is to remember that copyright is an instrument "for allocating creative resources," not "an absolute, inviolable set of rights to which either creators or consumers are entitled."

That is not how Congress usually thinks about it. A good example is the so-called Induce Act, now under consideration, which would make it a crime to aid or induce copyright violations like illegal file-sharing.

But the bill is so loosely worded that it could threaten a host of legal information-sharing practices and technologies. That includes everything from the iPod to automatic online translation. Critics claim, with reason, that this overreaching bill would have deeply chilling effects on technological innovation.

Last week, over on The Importance Of..., I annotated a letter from 46 state attorneys general to various P2P companies (State AGs Warn Filesharing Companies: Your Technology Too Dangerous!). Now, EFF has taken the letter to its logical conclusion and applied the basic arguments to the internet as a whole (No, Mr. Gore, I Expect the Internet to Die.):

Dear Mr. Gore:

We are writing to encourage you to take concrete and meaningful steps to address the serious risks posed to the consumers of our States by your invention of the Internet, including but not limited to email and web browsing. By addressing such problems as the use of email and the Web to disseminate pornography, invade privacy, and infringe copyrights, the Internet may one day realize its potential as a means for facilitating a wide range of collaborative project management, business planning, and academic/educational activities. At present, the Internet has too many times been hijacked by those who use it for illegal purposes to which the vast majority of our consumers do not wish to be exposed.

Good stuff.

CNET has this story about the Congressional Budget Office's report on copyright legislation regulating new digital technologies. As described, the report seems pretty wishy-washy. DRM could impose costs on consumers, continued "piracy" might reduce incentives for artists, and compulsory license schemes might cut transaction costs but also could reduce supply or demand. It sounds like there's something for everyone in there, but is this kind of report really useful to Congresspersons trying to decide what do to, or merely to give them something to quote to support a position they've already chosen?

Postscript: Having now read the report itself in addition to just the CNET description, I'm sorry I used the term wishy-washy. Possibly, as an advocate, I am so used to taking a position I expect every piece of writing to do so. The report is really quite a good overview of the copyright debate, which points out the complexity that many persuasive writings on the subject try to avoid. This certainly shows hill types that there's a lot more to copyright issues than can be captured in 2 page letters ranting about piracy. That said, the report is, intentionally, limited to economic perspectives. There's no discussion of the effects, for example, of labelling millions of children criminals, and very little about upsetting consumers' reasonable expectations about what they can do with media they possess.

Tim Wu says that copyright is the FCC's Vietnam, and that it "should be looking for a graceful exit strategy."

I couldn't have said it better myself (literally). Thank you, Tim.

Later: Ernie Miller takes issue with Wu's assertion that the FCC wants out of copyright: "The biggest flaw with Wu's argument...is that he doesn't explain why the FCC approved the broadcast flag in the first place less than a year ago. The broadcast flag ruling was, to borrow a court term, well-briefed on both sides. It isn't as if the FCC didn't realize what they were doing. Has anything changed in the last year to make the FCC regret their rash judgement?"

Via Boing Boing, Cathy Guthrie, Woody's granddaughter, says she loves the JibJab parody of her grandfather's song.

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.

Arlo Guthrie has said he likes the parody too.

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.

Paging through the FCC comments on the RIAA's proposal to hobble next-generation digital radio, Fred von Lohmann stumbled upon a telling bit of text revealing that Disney has even bigger plans for future technology mandates.

Writes Disney in its comments (PDF):

[To] the extent the Commission considers such a content protection mechanism, it should also consider whether to extend that mechanism to all music distribution platforms, including satellite digital audio radio service, the Internet and broadcast radio service.

It seems I wasn't far off the mark when I suggested that in a future dis-topia, tech mandates would be the new copyright, and the FCC would institute a "broadcast flag" for every single device capable of making a digital copy.

Could the Induce Act become, Swan-like, balanced and beneficial copyright legislation? Two copyright scholars have donned the scrubs:

Ernie Miller's nip: "In any case, the problem cited that the INDUCE Act is meant to solve is not the making of copies, or of derivative works, but of the distribution of these works. If you have 100 copies of a work at home, what is the harm? The real problem is when those copies are distributed. Thus, the first change narrows the INDUCE Act to target the wrong-doers, and not someone who might suggest making mashups at home.

The second change addresses what the proponents of the INDUCE Act claim is the purpose of the Act. They claim that they wish to address the commercial inducers, those who are making 'millions of dollars while attempting to avoid any personal risk of the severe civil and criminal penalties for copyright infringement'....By including a 'financial benefit' clause, only commercial inducers will be targeted."

Tim Wu's tuck: "The point of the Act is make it as clear as possible to innovators what they can do to steer clear of copyright liability. It strikes a balance: persons and companies may not serve as intentional accomplices to infringement, but are otherwise free to design legitimate, neutral devices and services without undue liability concerns."

HP and Philips, suggesting that the primary selling point of their Video Content Protection System (VCPS) is that it allows viewers to enjoy the benefits of FCC-mandated copy-controls without even knowing it:

VCPS provides a transparent solution for consumers -- there is no change in how the customer records and views their favorite TV program -- while automatically adhering to [FCC] regulations. [...]

"The result is VCPS, which is a win-win solution for the consumer, content providers and manufacturers."

So in the era of the tech mandate, the tech talent will stop with this "improving the product so the customer will buy it" nonsense. Instead, it will work on new and innovative ways to ensure that the viewing experience stays roughly the same, and that people don't notice the flexibility and features they've lost.

Ernie Miller has a marvelously sarcastic -- and marvelous because sarcastic -- response to the news yesterday that the FCC approved 13 new technologies, including TiVo, as compliant with the broadcast flag:

Oh, heavenly joy! Oh, fortunate day! Our wonderful technological masters, those geniuses of centralized planning, have deigned to bestow on the public the ability to move video files between 10 separate devices with the use of a registered dongle. What visionaries! What prophets, who can see what is appropriate use of technology and what is not!

If only we had had the FCC's sage advice when Sony developed the Betamax. The Supreme Court, in its ignorance, allowed the technology to develop unhindered. What a mistake! Could they not see that there must be regulation to channel and guide the foolish technologists who don't understand how markets function? How dare they create without approval? We must only permit innovation that has been properly considered by government regulators, without which markets would not function efficiently.

Fred von Lohmann calls the FCC dispensation "a disaster." In order for these "lucky" 13 products to survive, the manufacturers had to agree to hobbled functionality. TiVo made it to market and then under the wire -- but only because it decided early on to compromise functionality. If the RIAA gets its way, the companies creating TiVo for radio won't even have the choice. Next-generation digital radio will be regulated well before it reaches the market.

Ah -- but why stop at digital television and radio? As the copyright professors suggest, tech mandates could be the new copyright. The FCC could institute a "broadcast flag" for every single device capable of making a digital copy.

As I wrote over at Deep Links, this is what the entertainment industries told us they wanted in 2002 when they backed the Hollings Bill. That legislation would have forced every new digital media technology, at its birth, to comply with some kind of "content protection" design mandate imposed by an inter-industry group and administered by the FCC.

Thankfully, the Hollings bill was defeated. But defeating the broadcast flag(s) will be harder -- especially when people are fooled into believing that TiVo scraping crumbs from the carpet is victory.

My co-worker Annalee Newitz has new piece arguing that the complicated court decision in the Perfect 10 case has potentially created (yet another) way for businesses to misuse the Digital Millennium Copyright Act to crush the competition:

[In] the process of clarifying [DMCA safe harbor] provisions, Judge Baird also made some dangerous assumptions about the safe harbors that have created a veritable roadmap for litigation-happy copyright owners who want to use the DMCA to harass people right off the Internet.

The ruling explains that, to qualify for safe harbors, a company must terminate its relationship with a user or customer if they receive "repeat notifications of copyright infringement." "Repeat notifications" means multiple takedown notices.

Why is this a problem? Think of it this way: If a large adult website wants to put its smaller competitors out of business, one way they could do it would be to send several takedown notices to the small company's age verification and bill processing service providers, claiming that a few images posted on a few webpages are infringing. To avoid the risk of liability, these service providers will sever ties with the small website's owner, who will now have no way of processing credit cards to do business on any of its websites.

Shockingly, this can all happen without any of the parties being found liable of copyright infringement in a court of law. Mere takedown notices -- which are only allegations, not court judgments -- can literally leave owners of adult websites stranded without any way to make money.

Seth Finkelstein writes that the "most chilling" moment from yesterday's hearing on the Induce Act was the moment when Senator Hatch warned that whether or not the bill passes in its present form, "something has to be done" about copyright infringement via peer-to-peer file sharing. It's not the concept of a solution itself that's chilling. It's that Congress appears willing to explore only a certain subset of solutions -- those that pose a threat to technological innovation, the traditional balance in copyright, or both.

Wendy Seltzer responded to the news yesterday that TiVo has been dragged into a battle with Hollywood over the "portability" of recorded television programs with an apropos warning: "Don't be lulled by the copyright industries' claims that 'it won't hurt much.' Ceding to technology mandates gives the entertainment companies a screw they'll just keep tightening."

The Induce Act doesn't propose a technology mandate. But it does propose to extend liability for copyright infringement the only inch that the entertainment industry would need to take a mile. Already, it has emboldened Copyright Office Registrar Marybeth Peters to argue that the Betamax doctrine ought to be abolished, presumably along with the 20 years of innovation it enabled.

Thankfully, the push to "do something" à la Orrin Hatch is facing push back. Evidently recognizing that the Induce Act would eventually come for its members, the Business Software Alliance is backing off from its endorsement of the bill as is. But as Ernest Miller points out, the bill "might never have gotten as far as it has without [BSA's] initial support."

It's not possible to overstate the importance of fighting this bill now, before it gets any further. Seth and Ernie each have had personal experience with battling uphill against misguided copyright law that remains firmly ensconced at the top. Retrograde motion is extremely difficult, and both time and resource-consuming. There aren't very many Seths or Ernies out there. Please, take a few minutes today to tell your representative why the Induce Act is the wrong way to deal with the conflict over P2P neworks. It's not too late to make a difference in this battle. Don't wait until it is.

Jason Schultz, over @ Deep Links: "During yesterday's Senate Judiciary Committee hearing on S. 2560, the Inducing Infringements of Copyright Act, Judiciary Chairman Orrin Hatch (R-UT) made a few comments about the concerns EFF raised about the Act in our mock complaint against Apple, Toshiba, and C-NET over the iPod. Sadly, Orrin seems to have missed a few key points."

Via Thomas Barger, the testimony from yesterday's hearing on the Induce Act, in QuickTime MOV.

Also courtesy of Mr. Barger, the hearings on HR 107, a bill that would reform the DMCA to allow for traditional fair uses of digital media.

Susan Crawford, responding to the Jonathan Krim article I mentioned earlier today about TiVo and the FCC's broadcast flag mandate:

The flag was supposed to be about indiscriminate online distribution. TiVo is trying to provide a device that allows 10 people within a personal network to copy TiVo-ed shows onto their PCs. It's perfectly secure. It's just not quite constrained enough for the studios.

And Hollywood is asking [pdf] the FCC to make sure that this TiVo functionality never reaches consumers.

This desperate quest for control, using the FCC as an apparently willing tool, will end its first stage next week. The rumor is that Real and MSN have already caved in to the studios. Only TiVo is still fighting.

The flag proceeding has convinced me that FCC is capable of almost anything. That's why it seems important to let FCC know just how hard making rules about IP-enabled services will be.

Professor Crawford is convening a conference on the FCC and the Internet on September 28th; looks fascinating.

No kidding.

Snippet: "The conclusion of the hearing was that everyone needs to go back to the drawing board and redraft the law. Sen. Hatch is adamant that 'something must be done,' so it appears that there is no going back. On the other hand, it seemed that the tech industry representatives had Hatch agreeing with them that the substantial noninfringing uses Betamax doctrine should be codified, which must be scaring the crap out of the RIAA."

[Via The Blawg Channel.]

Edward Felten is hosting an impromptu discussion in the comments section of his weblog as readers tune in to the webcast of the Induce Act hearing. There are 59 comments, and counting.

Bonus: Testimony by Marybeth Peters (PDF) of the Copyright Office, who'd like to erase the Betamax decision and presumably the 20 years of technological innovation that it allowed.

Siva Vaidhyanthan in today's Salon, on the Induce Act: "While industry lobbyists swear they would go only after the proprietors of peer-to-peer services, they don't have much credibility. After all, they have already taken the makers of videorecorders and MP3 players to court. Why wouldn't they do all they could to fix other technologies to behave as they wish?"

Speaking of which, today is the hearing. Be sure to stay tuned to Importance Of... for the latest.

For a while there, it looked like TiVo could avoid the copyright battles that felled the competition by playing nicely with the content industries. But as this MSNBC Washington Post article shows, sometimes even asking for permission to innovate isn't enough:

Hollywood studios and the National Football League are seeking to block the maker of the popular TiVo television recorder from expanding its service so that users could watch copies of shows and movies on devices outside their homes.

[...]

TiVo has an interest in keeping everything secure," said its Washington attorney, James M. Burger. "We are trying to bring innovation to consumers."

But the system alarms the content industry, which promised to roll out more digital programming over free television networks only after insisting that the FCC adopt rules requiring makers of recording devices to certify that they have technologies to prevent mass Internet distribution.

Digital programming is far more appealing for online distribution because the quality does not degrade as it is copied over and over.

TiVo was one of 13 companies that asked the FCC for approval, arguing that its copy-protection system met the requirements. The Motion Picture Association of America, Hollywood's lobbying arm, and the NFL then filed objections to TiVo's plan.

[...]

Mike Godwin, policy counsel for Public Knowledge, an advocacy group for consumer digital rights, said the fight highlights the danger of requiring technologies to be approved by government agencies.

"We've always thought that once the FCC got into the role of approving content protection technologies that the content companies would leverage this to use the agency to throttle various technologies," he said.

Ernest Miller has two essential posts providing background details for the Induce Act hearing tomorrow:

A list of additional co-sponsors:

• Sen. Hillary Clinton (D-NY) [$1,100,390]
• Sen. Debbie Stabenow (D-MI) [Currently, Hollywood does not appear to be a significant contributor to Stabenow's campaign funds]
• Sen. Lamar Alexander (R-TN) - Press Release [Currently, Hollywood does not appear to be a significant contributor to Alexander's campaign funds]
  
• Sen. Paul Sarbanes (D-MD) [Currently, Hollywood does not appear to be a significant contributor to Sarbane's campaign funds]

...and a list of witnesses:

• Marybeth Peters, Register of Copyrights, US Copyright Office (She's never seen an extension of copyright she didn't like)
• Gary Shapiro, President and CEO, Consumer Electronics Association
• Robert W. Holleyman, II, President and CEO, Business Software Association (his testimony ought to be interesting)
• Andrew Greenberg, Vice-Chairman, Intellectual Property Committee, IEEE
• Kevin McGuiness, Executive Director and General Counsel, NetCoalition
• Mitch Bainwol, Chairman and CEO, Recording Industry Association of America

The U.S. Senate Committee on the Judiciary will hold a hearing on Thursday at 2PM, on the INDUCE Act, which would place liability on those who induce or enable others to infringe copyrights.

Background on the bill here courtesy of Public Knowledge.

Ernest Miller has annotated the RIAA's letter to the senators supporting the INDUCE act. The letter's on the long side and the comments- some astute, some snarky, make it longer, so there's already an abridged annotated RIAA letter here. I'm still mulling over whether this kind of annotation is an effective form of argument.

Remember Fritz's Hit List? Now Ernest Miller brings you Hatch's Hit List, profiling technologies that the IICA/Induce Act would likely maim or kill. The first in line? The aforementioned WiFi car stereos:

After all, you have other automakers, such as BMW, offering digital music for car stereos but through a safe, DRM'd product...Clearly, offering wireless transfers of non-DRM'd music is begging for piracy.

[...]

Isn't that what Ford is trying to do, "sneak" P2P into its cars? Indeed, Ford should know better; check out the first comment on the article (I'm not making this up):

He he, this might be the start of those P2P highway networks we've already mentionned ;)

Or how about this post on Boing Boing by the notorious Cory Doctorow (WiFi car-stereos):

A new generation of WiFi-equipped in-car MP3 players is shipping. The possibilities are endless -- imagine a traffic-jam-area file-sharing/streaming net...

...Clearly, however, Omnifi Media knows that its consumers are writing apps letting people upload music from its players: Doctorow's Car Audio Paaaartay!

Got any other candidates? Let Ernie know.

Larry Lessig yesterday called the IICA/Induce Act a "lawyer employment act," arguing that it will "force technologists into court before they get to enter the marketplace and "shift responsibility for striking the balance in copyright law from Congress to unelected federal judges."

Ford has a new product that would give Induce Act-wielding lawyers plenty to do: the 2004 Lincoln Aviator SUV -- a car with built-in WiFi technology. This article from the Detroit Free Press reads as pure inducement:

One of the great frustrations with the vast amount of digital music many of us now have stored on our computers is not being able to take it with us easily when we're on the road.

What we do today is burn CDs -- endless numbers of them. It's time consuming, and we never seem to have that one new song we really want.

But now I've seen the solution: a WiFi vehicle.

So the automobile industry is finally out on the dance floor for the MP3 revolution, after many years of watching demurely from the side lines. The WiFi vehicle has made it to the marketplace, but just barely. Question for Senator Hatch: Do we really want a federal judge deciding whether or not it gets to stay or go home?

As long as Senator Orrin Hatch (R-UT) insists on invoking "the children" to push misguided copyright legislation, Ernest Miller will insist on invoking "the pornographers" as its primary beneficiaries.

My EFF colleague Ren Bucholz will be online tomorrow @ USA Today to answer them.

Infamous technology writer Hiawatha Bray (he of the exaggerations and misunderstandings) suggests geeks are doing the same thing when it comes to the Induce Act:

Orrin Hatch [has] been marked by the nation's geeks as an incipient menace. ... [Hatch] seeks to outlaw file-swapping programs used by people around the world to deal in stolen music and movies. Outlawing plainly criminal activity seems a worthy use of a senator's time. ... [But critics] predict that Hatch's bill would ban digital music players, outlaw home videotaping, and force cats and dogs to sleep together. ...

The bill is a response to a surprising federal court decision last year that makers of file-swapping software are not liable for the thefts committed by users of their products. ... But the bill's critics say it goes way too far. ... But if the Hatch bill is such a threat to technology, why has it garnered such avid support from the computer software industry? The Business Software Alliance, which represents some of the world's biggest software firms, backs the bill. ...

Maybe it's because critics of the Hatch bill have gotten it wrong. ... According to Hatch and one of his staffers, an intellectual property attorney who spoke on background, the bill is designed to complement Betamax, not overturn it. "If this bill had been enacted into law in 1984, the Betamax law [case] would have come out the exact same way," the staffer said.

What Bray seems to miss is that the Court didn't declare Grokster legal because it felt like it. It found it legal because it passed the test in Betamax. Hatch could try to overturn that specific determination of fact, but instead he passed a broad new bill. The bill either overturns the Betamax test or it doesn't outlaw Grokster. He can't have it both ways.

Anyway, you don't need to go on Hatch's staffer's word -- the bill itself is pretty clear. Anyone who "intentionally aids, abets, induces, counsels, or procures" a violation of copyright law is out.

Did Sony intentionally aid or induce copyright infringement? Well, as the dissent noted in Betamax, "Sony's advertisements, at various times, have suggested that Betamax users 'record favorite shows' or 'build a library.' Sony's Betamax advertising has never contained warnings about copyright infringement".

Now maybe Sony didn't mention it because copyright infringement was the furthest thing from their mind. However, it's hard to think of a common-sense reading of the bill that would allow Sony thru but not Grokster. And certainly someone like Bray, who is so quick to note publishing file sharing software is "plainly criminal", wouldn't give Sony much benefit of the doubt. After all, their VCRs are "used by people around the world to deal in stolen" television shows. How much more evil can you get?

(And as for the comments about the Business Software Alliance, maybe it's because the BSA's mission is ensuring "[s]trong copyright protections", not protecting "the right to publish ... technology", that they support this bill.)

That's the question Terry Fisher, Fred von Lohmann, and Kembrew McLeod tackle in a trio of pieces that explore alternatives to mass lawsuits against filesharers and/or harmful legislation like the Induce Act:

Terry Fisher: "[The] record industry's response to file sharing -- trying to block the technology altogether -- would generate the worst of all possible results."

Fred von Lohmann: "While we at EFF have been critical of the overbreadth of the Induce Act, some have asked 'what would you suggest that would target P2P while leaving things like the iPod intact?' Answer: It's not a question of more laws, it's a question of new business models."

Kembrew McLeod: "It would be dishonest, and foolish, to suggest that hammering out a compromise palatable to all sides is going to be easy. But the alternative -- to do nothing, or to pass new industry-backed legislation -- would continue to criminalize the everyday behavior of millions. And it would continue to stifle an innovative way to distribute artistic works."

As expected, the Government has moved to dismiss Brewster Kahle and Prelinger Archive's suit challenging the term of copyright and pointing out its effect on our ability to access our culture. Download file. A briefing schedule and date for oral argument will likely be set at an upcoming case management conference.

Pleased with its win in the D.C. District, the Government asks the District of Colorado to follow suit. More here.

I've been a huge proponent of the ability of people to annotate and comment upon fixed media for years now. Some technologies that allow this with regard to DVDs has been maturing over the past few years as well, though mostly to permit people to edit out that which they consider offensive. See, Editing DVD Player on Sale Soon. Of course, these technologies are being sued for copyright and trademark violations on behalf of the directors who whine that their droits moral are being infringed upon (though there is little complaint when their work is butchered for the airlines or broadcast in the wee hours of the morning). Recently, congressional hearings were held by Rep. Lamar Smith (R - TX) to consider the issues (Liberals, Conservatives Favor Different Kinds of Censorship). Normally, Rep. Smith is a fan of expansive copyright, but his censorious tendencies made him a fan of this annotating technology with regard to blocking out naughty bits.

A couple of days ago he introduced a new bill to clearly make these technologies legal, for the children, of course (Smith Bill Protects Children). Read the bill here: Family Movie Act [PDF]. Read on...

Continue reading "Rep. Smith Introduces Clean Flicks Bill"

WIRED reports that there are some significant signs of support for an anti-DMCA bill introduced in the House (DMCA Foes Find Allies in House).

A bill in the House of Representatives, HR107, would overturn a major provision of the controversial Digital Millennium Copyright Act of 1998 (PDF), which bars consumers from circumventing encryption on digital media products, even if they only intend to make copies for personal use.

The bill's sponsor, Rep. Rick Boucher (D-Virginia), already has 19 co-sponsors, including powerful House Commerce Committee Chairman Joe Barton (R-Texas). It's unlikely the bill will become law this year, but its proponents see the backing as a good sign.

Of course, the MPAA is still claiming that there is no need for changes to the DMCA as it has no effect on fair use:

"That's just not true," said David Green, vice president and counsel for technology and new media at the Motion Picture Association of America. "The DMCA retains fair use. It doesn't change fair use in any way."

You could ban the printing press and the MPAA would claim there was no effect on free speech.

The RIAA and MPAA must be worried that they are going to lose the Grokster case (Group of attorneys general told they should be monitoring file-sharing):

Lobbyists for record companies and Hollywood movie studios laid out a case against online file-sharing before a group of attorneys general, suggesting the state prosecutors should examine whether such companies are breaking state laws....

One example, whether the distributors of file-sharing software like Kazaa, Grokster and Morpheus do enough to warn users that they could be liable for sharing copyright content....

[Fritz] Attaway [Executive VP and General Counsel for the MPAA] also suggested the state prosecutors might have a case for protecting businesses like movie theaters and video stores from P2P software companies under state unfair competition statues. P2P software providers divert customers, affect jobs, he added.

Why should the attorneys general be looking into this if the ongoing lawsuits (or the INDUCE Act) were going to work in shutting down these services? There is also a hint of desperation in these justifications for getting the AGs involved. Not that it seems they are biting (probably have better things to spend money on than subsidize Hollywood's lawsuit agenda). Undoubtedly, the RIAA and MPAA will also be ramping up their state legislatve agenda, pushing more state legislatures to introduce bills like California's "True Name and Address" Bill.

UPDATE 0745 PT Read on...

Continue reading "Hollywood Begging State AGs for Legal Help"

Senator Orrin Hatch (R - UT) is threatening to introduce a new copyright bill that would punish anyone who "intentionally aids, abets, induces, counsels, or procures" copyright infringement (INDUCE Act is Free Speech Killer). Two months ago, the Senator also introduced another copyright bill that would give the DoJ power to enforce civil copyright infringement (PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry and PIRATE Act - Wiretaps for Civil Copyright Infringement?). Here is a press release about the PIRATE Act ... we should have seen the INDUCE bill coming (Judiciary Committee Reports Four Intellectual Property Rights Bills):

The Protecting Intellectual Rights Against Theft and Expropriation Act of 2004, the PIRATE Act, S. 2237, is an important legislative effort I joined Senator Leahy in sponsoring. This bill will give the Department of Justice the flexible enforcement powers needed to deal with the challenges posed by so-called peer-to-peer filesharing software. The design of this software seems to induce otherwise law-abiding people to violate federal laws relating to copyrights and distribution of pornography. As a result, it has been difficult for the Department to bring the moral force of the government to bear against the widespread piracy induced by this software. The PIRATE Act will ensure that the Department will have the option to impose civil penalties against users of filesharing software who are breaking federal laws, but may not warrant criminal prosecution. [emphasis added]

It's that evil software, seducing law-abiding citizens into degraded lives of pornography and copyright violations. It is criminals like Seth Finkelstein, who induces the otherwise law-abiding to violate the copyrights of censorware producers (INDUCE Act).

What's that old saying? "Give a man a book and he reads for a day. Teach a man to publish and he infringes copyright for a lifetime."

Disappointing, but not unexpected news about the ability of the government to restore copyright to public domain works. In Luck's Music Library v. Ashcroft [PDF] (21 pages), the United States District Court for the District of Columbia upheld the ability of the government to restore copyright for foreign works that had entered the public domain in the US, but were copyrighted in their home country. The case challenged the constitutionality of Section 514 of the Uruguay Round Agreements Act, codified at 17 U.S.C. 104a. The case had been held up until after the Eldred decision. The plaintiffs were a sheet music company and a film restoration company.

Tomorrow, Senator Orrin Hatch (R - UT) will introduce one of the most blatant attempts at copyright maximalization ever attempted - the INDUCE Act. Fred Von Lohmann, Senior Intellectual Property Attorney for EFF, broke the story on Deep Links (INDUCE Act = Hollings II?). Donna Wentworth brought it to Copyfight here (INDUCE Act = Son of Hollings?). Prof. Susan Crawford briefly comments and posts a link to the actual act (INDUCE Act). Read the one-page proposed act here: INDUCE Act [PDF].

As Prof. Crawford says:

This is amazing. Now we're waaaaaay beyond contributory and vicarious theories of liability, which are court-created and pretty darn broad on their own. See Napster 9th Circuit, Aimster 7th Circuit. It's not even clear what the limit to this is -- "aids" could mean that even something that would have been fair use under the Sony Betamax decision is now an illegal inducement.

What is the INDUCE Act, exactly? Read on...

Continue reading "INDUCE Act is Free Speech Killer"

It looks like our Mr. Von Lohmann is on a roll, breaking the news that we may see yet another harmful piece of copyright legislation rolling down the pike -- perhaps as soon as tomorrow. Dubbed the INDUCE Act, the bill is rumored to add a new section to the Copyright Act that would grant copyright holders a cause of action against those who "induce" infringement.

Writes Fred:

Even a moment's reflection should make the danger to innovators clear -- you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense. This may also pose First Amendment problems, to the extent a journalist or website publisher might be liable for simply posting information about where infringement tools might be found or how to use them.

It's the Hollings Bill by other means -- an over-reaching new form of indirect liability that would force technology companies of all kinds to "ask permission" before innovating for fear of ruinous litigation if they don't.

Not good.

Stay tuned for more details here or at Deep Links; I'll post them as soon as I get them.

Lawrence Lessig and his legal team are asking for your help. Kahle v. Ashcroft is a lawsuit that challenges changes to U.S. copyright law that have created a large class of "orphan works" -- creative works which are out of print and no longer commercially available, but which are still regulated by copyright.

The Kahle team is collecting examples of people being burdened by these copyright-related barriers to the use of orphan works. Visit the Kahle Submission Site and tell us your story.

The First Circuit has issued an opinion discussing how to calculate statutory damages for copyright infringement. Venegas Hernandez v. Sonolux Records. Nos. 03-2014, 03-2015 (First Circuit June 7, 2004). 17 USC Section 504(c) states that a copyright owner can elect to recover statutory damages "For all infringements involved in the action, with respect to one work, for which any infringer is liable individually." The issue is whether that means you multiply the amount of statutory damages by the number of plaintiff's copyrighted songs involved in the suit (here, two songs) or the number of infringing works for which the defendant is liable (here, sixteen infringing albums which each included at least one of the plaintiffs' songs). Answer- the number of infringed works.

Continue reading "Statutory Copyright Damages- doing the math"

Michael Geist's latest column on copyright law in Canada contains yet another argument for the necessity of Creative Commons licenses: Toronto-area MP Sarmite Bulte is pushing for an interpretation of the law that embraces and codifies permission culture:

Although [Bulte's committee] acknowledges that some work on the Internet is intended to be freely available, the committee recommends the adoption of the narrowest possible definition of publicly available. Its vision of publicly-available includes only those works that are not technologically or password protected and contain an explicit notice that the material can be used without prior payment or permission.

This despite the fact that our Northern neighbors are world leaders in affirming the public's side of copyright bargain.

Et tu, Canada?

C|Net News's Declan McCullagh reports that legislators are trying to sneak the "PIRATE" Act through Congress and the bill may be voted on by the Senate in little more than a week ('Pirate Act' raises civil rights concerns). For those unfamiliar with the Act, it basically allows the Federal government to bring civil copyright infringement lawsuits instead of only criminal copyright infringement cases. Read the bill here: S.2237 Bill Summary and Status.

Why is this bill a bad idea?

• Rent seeking for copyright holders. They don't have to bear the costs of the lawsuit, the government does it for them.
  
• Deflects bad publicity from copyright holders. People may feel that lawsuits brought by the government are more legitimate than lawsuits brought by a cartel.
  
• Wiretapping. The government can use wiretaps to investigate copyright infringement - something that the RIAA can't do. This means that the government can go after downloaders and can more easily prove their case against uploaders.
  
• Double jeopardy (well, not technically, but the principles are similar). The government gives the RIAA a much bigger stick to use. After the government has sued an infringer, the copyright holders can still bring another civil lawsuit for the same infringement for at least for 3 more years.
  

Previous Copyfight coverage here: Funding the War on Filesharing.

My analysis here: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry and PIRATE Act - Wiretaps for Civil Copyright Infringement?.

The San Mateo Daily Journal reports that California's "True Name and Address" Bill has passed the Senate and it is now up to the Assembly to stop the free speech abomination (Bill will curb Internet piracy). I wrote a brief analysis of the anonymity-attacking legislation when it was introduced ("True Name and Address" Bill for All Filesharers Introduced in Calif).

All my original comments on how the law is likely to be unconstitutional are still valid, but I have some new issues with how the bill is being sold:

Sen. Kevin Murray, D-Culver City, said his legislation would enable law enforcement to use the addresses to track down people who violate copyright laws by illegally distributing copies of commercial films and recordings.

Yeah ... that is going to happen. If you are illicitly distributing copyrighted content you aren't about to go advertising the fact. Sen. Mickey Mouse Kevin Murray might as well introduce a law requiring "true name and addresses" on all notes from bank robbers. Why not be honest, Senator? This bill allows California law enforcement to go after copyright infringers when they otherwise could not and, additionally, allows the copyright industry an even bigger legal threat (jail time) to hold over filesharers.

As promised, more big news in the Golan v. Ashcroft case challenging Congress's restoration of copyrights in certain works that were in the public domain. The task before us now is to gather and develop facts about how people used the works affected by copyright restoration before Congress passed the URAA and how they are harmed by the inability to use these works now. To help us collect these stories, we've launched a wiki-style tool. Check out this new site built by Aaron Swartz and please share your story (if you have one) and spread the word (as appropriate) to others so they can share theirs.

SiliconValley.com has published an AP wirestory on a recent Congressional hearing relating to the ClearPlay lawsuit (Lawmaker vows to protect tech that lets parents filter DVDs). ClearPlay is one of the companies being sued by Hollywood for providing technologies that will allow people to use alternate playback trees for their DVDs in order to skip the naughty bits. You buy a regular DVD at the local Wal-Mart, take it home, put it in a special DVD play and ... no more Titanic with nudity, for example (though the DVD is unchanged ... just the playback has been changed). Hollywood doesn't like this and wants to sue the companies out of existence under various copyright and trademark theories. See, EFF's case archives: EFF: Huntsman v. Soderbergh; and LawMeme's coverage, starting here: The Hypocrisies of the Writers Guild of America, West.

The hearings were held by arch-conservative Rep. Lamar Smith (R - Tx), who chairs the Subcommittee on Courts, the Internet and Intellectual Property of the Judiciary Committee. Rep. Smith is normally a proponent of strong copyright laws, but finds the expansive view of copyright conflicts with his censorious desires here (Smith's Opening Statement): "Just as the author of a book should not be able to force me to read that book in any particular manner or order, a studio or director should also not be able to use the law to force me or my children to watch a movie in a particular way."

He almost sounds like a Copyfighter (even stopped clocks are right twice a day). Read more about the opposition...

Continue reading "Liberals, Conservatives Favor Different Kinds of Censorship"

May 19, 2004: The Court held a case management conference in Golan v. Ashcroft, the suit challenging the constitutionality of Congress's "restoring" copyright to certain works in the public domain. Lawyers at the Center for Internet & Society and Edward Lee from Moritz College of Law at Ohio State University are handling the case. Having just lost its motion to dismiss, the Government tried to stay discovery pending its proposed motion for summary judgment (same motion, different name? Why not just call it a motion for reconsideration?) Our local counsel, Carolyn Fairless and Hugh Gottschalk of Wheeler Trigg & Kennedy, succeeded in convincing the Magistrate Judge that discovery should go forward. We are looking at trial in about one year. Look for more news soon about this case.

Annalee Newitz in her latest Techsploitation column, on the "upside" of the FCC retarding the development of new technologies like GNU Radio by setting up a use-restriction folding chair -- e.g., the broadcast flag mandate -- at the behest of the motion picture industry:

Maybe we should try to put the broadcast flag mandate in a more positive light, though. It's not really an anti-future rule – it's just pro-past! And hey, everybody knows that the best thing for science and technology is a really strong, pro-past agenda. After all, physicists recently predicted that Moore's Law (which stipulates that the number of transistors on a microprocessor doubles every 18 months) will break down in 600 years, so we should probably start slowing down the future as soon as we can.

Doing so would help safeguard the ability of computer scientists to test the integrity of electronic voting machines.

Explains Congressmen Rick Boucher (D-VA) and John Doolittle (R-CA) in an email to fellow representatives:

[C]omputer professors engaged in legitimate scientific research have been threatened with lawsuits ever since enactment of the Digital Millennium Copyright Act of 1998. We introduced H.R. 107 in part to ensure that scientists can engage in legitimate, important research can do so without having to first hire a lawyer.

When our bill has been enacted into law, it will no longer be a potential violation of Section 1201 of the DMCA:

* for a computer science professor to work with his class to improve scrambling technology designed to block terrorists from accessing sensitive first-responder communications; or
* for a computer science professor and his graduate students to test the encryption technology built into electronic voting machines to ensure that corrupt election law officers cannot alter the choices made by our constituents.

Few of us could have predicted the ways in which Section 1201 of the DMCA would be used to stifle legitimate scientific research that would benefit everyone in society. To help protect our homeland and to ensure the integrity of new electronic voting systems, we urge you to cosponsor H.R. 107.

The burning question of the day: How did the hearings on the Digital Media Consumers' Rights Act (DMCRA) go? More specifically, to what degree does Congress appear willing to consider the public's side of the copyright equation?

The first report from the hearing seems to tell a variation of the same old story: advocates for the public interest cried "harm," the content industry responded with "theft," and progress got reacquainted with impasse. Closer inspection, however, reveals a tiny crack in the wall: Washington lobbyist and former congressman Allan Swift openly admitted to recording songs as gifts for friends -- "mixed tape" copying of the sort we can all still do using audio cassettes, only (gulp) using digital media. "I never made a straight duplicate of a record for anyone," said Swift. "I have never charged a person a penny. I am, like other American consumers, a profit center for these businesses. It's about time they treated us with a little respect."

Now, a second crack has splintered off from the first: Fred von Lohmann reports that the DMCRA has the critical support of Congressman Joe Barton (R-TX), chair of the House Energy and Commerce Committee. During the lunch reccess, Congressman Barton privately announced that he "intends to see the bill marked up (a prerequisite to approval), passed by the subcommittee, passed by the full committee, passed by the full House of Representatives, and ultimately signed into law by the President. This year."

Continue reading "Is Congress Ready for DMCA Reform?"

This Wednesday, May 12th, marks the first time since the DMCA was enacted in 1998 that Congress will hold hearings on legislation to reform it.

The Digital Media Consumers' Rights Act, or DMCRA, has three important goals:

#1: Warning: You're About to Pay Full Price for a Hobbled CD

The DMCRA would require labels on copy-protected "CDs," letting us know that we can't actually use what we've purchased except under limited circumstances. That's right -- you get advance warning that you're paying the same price for less functionality.

#2: You Get to Reclaim Fair Uses of Digital Media That You Already Have in Analog Media

The DMC_R_A would put the Rights back in the DMCA. The bill amends the DMCA to allow you to circumvent copyright controls on digital media for legitimate purposes -- for example, to make the fair uses that copyright law ordinarily and traditionally allows.

Among other things, this would mean that:

a.) when most scholarly communication, publishing, instruction etc., takes place using digital media/online, our ability to share knowledge and learn from one another won't be a distant and fast-fading memory;
b.) when researchers want to "tinker" to advance our scientific knowledge, they won't face a significant barrier -- like the repeated threat of litigation; and
c.) when librarians seek to preserve our history in digital media, they won't have to wait three years at a time to beg the Copyright Office for the narrowly defined technical ability to do so.

#3: These Will Be Real, Not Phantom/Illusory Fair Use Rights

The DMCRA would affirmatively allow the creation/distribution of devices that circumvent copyright controls, when the devices have substantial non-infringing uses. That means inventors will be able to invent the next VCR or TiVo without asking Hollywood's permission first. And if a researcher has created a circumvention tool for the purposes of researching/testing web-filtering mechanisms, the researcher won't be limited to describing the controversial results. He or she could share the tool with the scholarly community.

There are a few other hot spots for discussion of this bill; check them out, and if you decide that you want Congress to consider the public's rights in digital media, let your representatives know you support it.

Ed Felten continues his series on the recent Speed Bump conference at the Berkman Center with a discussion of some guidelines for designing efficient government regulations to support stopgap security measures (Regulating Stopgap Security). After pointing out a series of suggestions for making such regulations as effective as possible without unduly burdening technological progress, Felten concludes:

By this point, alert readers will be thinking "This sounds like an argument against the broadcast flag." Indeed, the FCC’s broadcast flag violates most of these rules: it mandates one technical approach (providing flexibility only within that approach), it creates compatibility barriers between compliant and non-compliant devices, and it shifts the long-term cost of compliance onto technology makers. How can the FCC have made this mistake? My guess is that they didn't, and still don't, realize that the broadcast flag is only a short-term stopgap.

Felten is certainly right that the broadcast flag violates all of his useful suggestions for regulators. He is mistaken, however, in believing that the FCC doesn't realize this "error." Read on...

Continue reading "The Broadcast Flag is Well-Designed Regulation"

A few thoughts on the below-referenced U.S./Australia free-trade agreement, from the Australian student who cracked Apple iTunes 4.5:

"The recent announcement of the pending Australian-U.S. Free Trade Agreement (AUSFTA) has sent shivers down the spines of many Australians, in all levels and areas of society.

However, one niche outcome of the AUSFTA that has not been significantly discussed in the Australian press and other public forums, is that of changes to our intellectual property laws.

Along with things such as the unnecessary increase in Copyright durations, which was put on the table [in] the states after huge lobbying by the entertainment industry (specifically Disney), comes a very frightening change which will bring 'tighter controls on circumventing technological protection of copyright material.'

This is equivalent to the core portions of the [U.S.] DMCA.

[...]

Bringing such laws to Australia is not necessary. The laws have [proven] useless in stopping copyright violations, but rather, have been used as a device by the media giants to maintain and increase their monopolies."

Via Slashdot via Frank Field.

As Kim Weatherall notes, Australia has been undergoing two separate but not entirely equal deliberations over its national copyright law at roughly the same time: a review of the 2000 Digital Agenda Act, and negotiations with the U.S. over a free-trade agreement (FTA) that predictably exports DMCA-style copyright restrictions.

The good news is that the Digital Agenda review process has yielded some remarkably sensible recommendations, including amending the anti-circumvention rules to 1.) permit fair dealing (Australia's version of "fair use"), 2.) allow for the non-infringing uses that are already okay under Australian copyright law, and 3.) let people who have legitimately acquired digital products to look under the hood.

The bad news is that the U.S./Australia FTA is poised to trump.

So where does Australia go from here?

Continue reading "Australia's "DMCA" - The Bad News About the Good News"

As Ernie noted recently, the FCC has issued as Notice of Inquiry on the feasibility of mandating DRM for digital radio, starting a process to take us all kicking-and-screaming down the same road it did when it forced the Broadcast Flag on the future of digital televison.

Beyond skepticism regarding the necessity for such invasive regulation, the action has also raised suspicions about the origin of the action, since (unlike with the Broadcast Flag) there has been to date no mandate from Congress for such action, no record on the subject in the FCC docket, and no attempt by the RIAA to work out an industry solution.

Well, yesterday Public Knowledge, one of the key groups opposing the BFlag, raised a red flag of its own regarding the FCC's actions by filing a FOIA request to disclose all communications between the RIAA and the FCC on the issue of digital radio:

“There has to be a reason why the Commission was so drastically prepared to change course, and it didn’t show up in the required public filings,” said Gigi B. Sohn, president of Public Knowledge. Sohn also said she did not find credible the RIAA assertions that the group didn’t know it had to disclose its contact with FCC commissioners and staff.

If the request turns up any previously undocumented communications, the RIAA will have vioalted the Ex Parte disclosure laws. The FCC has 20 days to respond to the request.

Public Knowledge President Gigi Sohn has a great Op-Ed in CNet today (FCC is taking wrong turn on digital media). A must read:

Forty years ago, there was a scary TV show called "The Outer Limits."

The show started with the narrator's words: "We can reduce the focus to a soft blur, or sharpen it to crystal clarity. We will control the horizontal. We will control the vertical. For the next hour, sit quietly and we will control all that you see and hear."

Who knew that today the Federal Communications Commission would be trying to turn that sci-fi introduction into a regulatory reality? Not only is the commission considering rules that would result in the digital television picture from reaching its full, sparkling potential, but the FCC also is considering defining where, when and with what rights consumers can use digital media.

The Ninth Circuit denied the FCC's motion for rehearing en banc of its decision in the Brand X case concerning open access to cable Internet systems. In this case the court, invoking stare decisis, ruled that Internet service is a telecommunications service, not merely an "information service." Good news for consumers.

Here @ BoingBoing, where Xeni Jardin has compiled a number of expert responses to the burning question of whether WiFi leads to Major League copyright infringement: "If I take my Powerbook to the ballpark and plug in my iSight Camera with it pointed towards the game, then isn't that an illegal broadcast of Major League Baseball?"

Fellow Copyfight-er Ernest Miller points out that Orrin Hatch-of-the-opportunistic-anti-porn-invective appears to have forgotten that pornographers are copyright holders, too. And that the proposed PIRATE Act, then, makes them very odd...bedfellows.

Frank Field, disgusted at the recording industry's latest "solution" to a problem it's "too lazy to put real thought into solving," takes Ernie's observation to the next logical step: "Maybe we can ask Larry Flynt to call a press conference to thank Senators Hatch and Leahy for their efforts? Any other pornographers out there who would make excellent poster children for this initiative?"

As a follow up to Friday's Ditherati about the PIRATE Act, editor Owen Thomas sends a helpful clarification: "Friday's Ditherati incorrectly identified Orrin Hatch's political affliliation as '(D.-RIAA).' It should have been '(R.-MPAA).' My apologies to all parties concerned."

You may not agree with the recording industry's litigation campaign against people who use peer-to-peer file-sharing networks. No matter. Under legislation introduced Thursday by Senators Patrick Leahy (D-VT) and Orrin Hatch (R-Utah), you'd still have to pay for it.

The legislation in question is the Protecting Intellectual Rights Against Theft and Expropriation Act (PIRATE Act). It would allow federal prosecutors to bring civil copyright infringement suits--meaning a lower burden of proof and no need to show that a defendant had knowledge of knowledge of/willful engagement in her wrongdoing.

"For too long, federal prosecutors have been hindered in their pursuit of pirates, by the fact that they were limited to bringing criminal charges with high burdens of proof," said Senator Leahy in a statement introducing the bill. "In the world of copyright, a criminal charge is unusually difficult to prove because the defendant must have known that his conduct was illegal and he must have willfully engaged in the conduct anyway."

Two million dollars are earmarked, four U.S. Attorney's offices must set up a "pilot" program, and the Department of Justice is required to file annual reports with the Judiciary committee to identify how many civil actions have been brought.

Okay--so the recording industry rejects voluntary collective licensing, implying that it's a compulsory system and therefore tantamount to the dreaded government solution to a private sector problem. Yet it supports the PIRATE Act--a government solution that would have taxpayers paying for lawsuits, not music.

Says Sharman attorney Phillip Corwin over @ Wired: "It's unfortunate that the entertainment industry devotes so much energy to supporting punitive efforts at the federal and state level, instead of putting energy into licensing their content for P2P distribution so those same people could be turned into customers."

Sure is.

More (reg. req.) from David McGuire @ the Washington Post.

Ethan Katsh, a professor a UMass and director of the Center for Information Technology and Dispute Resolution has written a letter to Paul Twomey asking why ICANN has not filled the position of ombudsman, a requirement of their bylaws:

The irony is that the ombuds position was supposed to contribute to enhanced accountability. The delays in filling the position, however, lead to a lessening of trust and to diminished accountability. The appointment of an ombudsman might also compensate for the fact that the other “accountability” processes, independent review and reconsideration, are either not functioning or barely functioning. The ombuds position was a new idea for ICANN and I had hoped that it would help greatly in building trust in the legitimacy of actions taken by ICANN. Unfortunately, not only is there no ombuds position but there is no independent review process either.

(source: Letter to ICANN President/CEO Paul Twomey)

Tomorrow Larry Lessig, who has long been a voice for ICANN openness, is testifying with Vint Cerf, ICANN's current chair, before the FCC (9:30a ET on C-SPAN3). It's hard not to wonder if Lessig will have any private words for Cerf, as Lessig's fellow EFF board member John Gilmore did.

C|Net News reports that a "task force" will be meeting in New York today to discuss increasing the United Nations' "involvement with running the Internet" (U.N. finds Net governance tempting). The discussion will be quite broad:

The agenda for Thursday's U.N. meeting includes a discussion titled "Accumulated Concerns, Perspectives, and Exploring How We Can Cooperate." Domain names, technical standards, network security, intellectual property, privacy, e-commerce, free speech, taxation, and "cultural and linguistic diversity" also are listed as topics for discussion.

I try not to be paranoid, but the concept of the UN deciding issues related to free speech sends shivers down my spine. And I'm not too confident about giving the UN more purview over the other issues either.

New Zealand is considering a law which would legalize format shifting for music, according to a report in the New Zealand Herald (Music industry warns of legalised CD copying):

The change would make it legal for someone who owns a legitimately obtained CD to make one copy for their own private use. Under the widely flouted current law, all copying, even for personal listening, is banned.

There are some interesting quotes from major members of the recording industry in NZ:

Sony NZ managing director Michael Glading said he was totally opposed to the move, which he believed would "open the floodgates" to unrestricted piracy.

No reference to serial killers here, but alarmist nonetheless. And what planet has Glading been living on? Hello ... P2P filesharing ... gates already open ...

"At the end of the day, you're sending a message that it's okay to copy, and that is going to kill our business. It's taking away people's rights to earn a living, and that's horrendous."

They just don't get it. By trying to prevent all copying, copyright maximalists undermine copyright law as a whole. Personal-use copying causes no harm, but is extremely convenient for the consumer. By making regular consumers into copyright criminals for personal-use copying, overall respect for copyright is substantially diminished. The same thing is happening with file sharing. By claiming that all file sharing is bad, even with close friends and family, copyright maximalists are hurting their own cause (Share with Friends, Not Strangers).

He [Glading] said the proposal was inconsistent. "They're not saying it's okay to copy Lord of the Rings from one DVD to another, but it's okay to copy Brooke Fraser from one CD to another. It's farcical."

Well, you know, he does have a point. Of course, I can't imagine this argument being made by a US recording industry leader except ironically. Still, this argument would only seem to point the way towards a general right of personal use copying. After all, NZ law already provides for backup copies of computer programs.

via Slashdot

C|Net News' Declan McCullagh reports on a potential ".XXX" top level domain (The battle over triple 'x'). Though such a domain would probably be a good thing (the more TLDs the better, I say) the real problem is that governments (including the US) might require adult websites to use the ".XXX" domain, which has obvious implications for freedom of expression.

Over @ Importance Of..., copyfighter Ernest Miller has (yet) another must-read--a lengthy analysis of the FCC decision (PDF) on the Bono/Golden Globes "f-word" incident (see the FCC press release [PDF]).

The news in a nutshell? In the wake of Janet Jackson's "wardrobe malfunction," the FCC has reversed its previous position on Bono's use of the word "fucking"--as in "this is really, really fucking brilliant." This use has now been deemed "profane."

Writes Ernie:

Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression.

[...]

"Profane" can't be about blasphemy, that would raise all sorts of freedom of religion issues, but it has to be distinct from "indecent." I think that leaves hate speech. Seems to me the FCC has decided that it wants to regulate the broadcast of hate speech.

I've assumed that the RIAA was monitoring BitTorrent downloader/uploaders. Now I've come across this report (not sure how credible it is) of such monitoring: Bit Torrent downloading:

So here I am, downloading through various torrent apps, various music torrents, all probably illegal. My first day, so I've learned the ropes, a little, and already blocked Sony North America, The Australian Broadcasting Corporation, RIAA and some others, I didn't recognise late last night. They were scanning my torrents, looking down my ports, or trying to.

Of course, I'm still sort of wondering why we haven't seen many DMCA notice-and-takedowns for BitTorrent seeding sites yet.