David Bollier weighs in on the new layer of supra/pseudo copyrights that Yahoo and other companies are seeking via under-the-radar lobbying at WIPO (previous Copyfight coverage: One IP Right to Rule Them All):
[The] United States Government is aggressively pushing the treaty even though its implications have hardly been studied, the public's and creators' rights would be severely compromised, and no similar webcasting law exists anywhere. The idea is apparently to craft a self-serving new legal regime behind closed doors, and exclude the public just long enough for the treaty proposal to become an unstoppable "international consensus."
Meanwhile, over on the Random Bits list, Jamie Love of the Consumer Project on Technology has a lengthy, must-read rebuttal to the argument by treaty supporters that "webcasters" need this fresh layer of exclusive rights on top of copyright for 50 years in order to prevent signal theft by pirates. Not so, says Love.
[Jon Potter of DiMA] says "there's nothing radical about a treaty to stop pirates from stealing and repackaging webcast signals without paying companies that spent money to create, license and transmit the programming."What he does not note is that all of these things can be addressed under existing copyright laws, if the material being webcast is copyrighted material, and if the webcaster has obtained sufficient rights from the copyright owner. ...Indeed, all the consumer/civil society NGOs and most copyright owners who attend the WIPO negotiations asked for a treaty dealing with signal protection only. But the broadcasters don't need or want a treaty on signal piracy, since there are plenty of existing ways to address it [...].
There are eight separate rights. You cannot read the rights and still maintain this is about piracy of a signal. It is about the rights to control the commercial distribution of someone else's content. (If the broadcasters did have the copyright, they would not need these rights).
The US and the webcasters are seeking parity between the broadcasters and the webcasters. Everything that says "Broadcasting organizations" would be extended to webcasters, under the US proposals. How much of the web that would be covered is unclear, but the current definition includes all combinations or representations of images and sounds, which covers just about everything. [Emphasis added.]
Copyright may be the 800-pound gorilla of the Internet, but there's a brand-new pseudo copyright in the works capable of swallowing massive chunks of the public domain, bones and all.
As I understand it, the new right -- or rather, set of rights -- would give companies fresh exclusive rights on top of any existing rights for anything they "webcast" (that is, transmit by web servers over the Internet and other networks). In other words, a company could take a movie that's fallen into the public domain, webcast it, and keep the general public, to whom it belongs, from recording it. It could webcast Creative Commons-licensed songs that people have specifically earmarked for easy digital distribution and remixing, then demand that no one touch the webcast. And there is no additional creative effort necessary to accrue these rights. All you have to do is feed any combination of sound or images through a web server, and you're golden.
If you've been following the goings-on at the World Intellectual Property Organization (WIPO), you won't be surprised to learn that this new right is being negotiated behind closed doors at the urging of Yahoo and a handful of other companies, without any public debate and over the repeated protests of public interest groups and webcasters who have specifically rejected this new "protection." As CPTech points out in a new letter to members of Congress, this is a prime example of US trade policy completely captured by a small group of corporate lobbyists. After all, how else could a set of rights this powerful slip under the radar -- especially when there has been, as CPTech notes,
1. No analysis of how US law would have to change in the treaty passed.
2. No analysis of the unintended consequences of creating a new right of transmission for the Internet.
3. No analysis of the impact of the new right on copyright owners.
4. No analysis or concern about how the new [intellectual property] right would affect the orphan works problem.
5. No analysis of the impact of the webcasting treaty on podcasting.
6. No analysis of whether the treaty language would unwittingly create a property right to persons operating peer-to-peer networks or search engines.
Two quick recommendations before I go: When the treaty was released in draft form last year, Ernie Miller wrote an exhaustive analysis/critique that helps explain why these additional rights are "bad, bad, bad" -- check it out here. And don't miss Cory's post from last week, WIPO wants to give webcasters the right to steal from public domain, Creative Commons and GPL.
Robyn alerts me to the USPTO's kids' pages, where they've posted a colorful -- but sharply slanted -- "Put a stop to piracy" campaign. We thought it needed a bit of annotation to help kids understand (red from the USPTO page, black mine):
CAN YOU TELL WHAT'S WRONG?
...
You hook up a VCR to your DVD player and make copies of your movie collections as gifts for your pals.
Sorry. You try to hook the two together but Macrovision prevents you from getting a clear picture, even when the movies you want to copy are no longer in print or you're trying to extract scenes to add to commentaries. You probably won't be able to find a macrovision-less VCR, because Macrovision has been suing their makers for patent infringement.You capture pictures from TV shows and post them on your website along with soundbytes that make you laugh.
Great, you've got a pre-broadcast-flag TV setup that lets you make fair use of media. Hold onto it, because if Hollywood and the FCC have their way, you'll be technologically prevented from grabbing these captures in the future. A "soundbyte" sounds ok, just remember that a sound-gigabyte probably exceeds fair use.You buy a fake pair of designer shoes from a street vendor - they look like the real thing and cost only a few dollars.
Cool, so long as they weren't made by sweatshop labor and you weren't deceived into thinking you'd bought real designer merchandise. You've just saved yourself a bundle and helped the free market. Fashion designs aren't copyrightable, and trademark protects only against consumer confusion.
Can you spot others? Remember, kids, "these laws and regulations as well as the application process can be very complicated."
Mike Godwin has the scoop on the recording industry's new bid to assert control over radio broadcasts, in an effort to stop you from doing things like "[automatically copying] particular recordings of the user's choice, thereby transforming a passive listening experience into a personal music library often without even listening to the original broadcast."
In other words, it's worried that you'll have a TiVo for radio. And it believes that by citing fears of digital "theft" of free radio broadcasts -- which have never copy-protected -- it can persuade Congress to stop TiVo for radio from happening. Or, to be more precise, to stop it from happening without being able to control it. It's already decided, for example, that people shouldn't be able to automatically search for and record songs by a particular artist. But after the Broadcast Flag smackdown, it needs Congress to give the FCC explicit authority to make it so.
Writes Fred von Lohmann @ Deep Links:
[The] music industry is basically saying that, where recording from next-generation radio is concerned, government must step in and freeze innovation to ensure that you can never do anything that you couldn't do with an analog cassette deck in 1984. This, despite the fact that Congress specifically approved of digital recording off the radio in the Audio Home Recording Act in 1992. So this is about stopping music fans from doing things that are perfectly legal under copyright law.
The Canadian Recording Industry Association (CRIA) is attempting to capitalize on the Australian KaZaA ruling; University of Ottawa law professor Michael Geist provides a terrific, detailed rebuttal:
First, CRIA seeks to link the Australian decision with Canadian copyright reform. In reality, the two have as much in common as Australian rules football does to ice hockey.[...]
Second, in claim designed to appeal to Canadian Heritage, it describes the implementation of WIPO in Canada as "WIPO-Lite", questioning whether the bill will be effective and allow Canada to "implement its international treaty obligations." We should be clear: Bill C-60's provisions (particularly the anti-circumvention provisions) are absolutely WIPO compliant.
[...]
Third, there is the absurd claim (designed to appeal to Industry Canada) that Canadian copyright laws have hamstrung online music sales. CRIA claims that "digital sales in this country run at one-half of one percent of US levels, but should be in the 12 to 15 percent range given relative broadband penetration in the two countries."
We should again be absolutely clear: Canadian online music sales have nothing to do with Canadian copyright legislation or copyright reform.
An Australian federal court has ruled that the Sharman companies responsible for the filesharing software KaZaA "authorized," and are therefore liable for, copyright infringement by the people who use the software. Further, the court has ordered Sharman to modify the software to help prevent infringement. And that means copyright holders will be involved on an ongoing basis, providing lists of material to be filtered from searches.
Australian copyright expert Kim Weatherall has extensive analysis. Writes Weatherall:
Given the experience over in the US in the Napster litigation, where similar attempts by a trial judge led to much ongoing disputation about the form of orders that only went away when the litigation collapsed under its own weight, I'm surprised that any judge would want to get into this.[...]
In my view, it was always going to be the case that Kazaa itself went down, on the kinds of facts that we see in this case. What I was hoping was that the judge would find a way to frame a rule so that it caught 'bad actors' without generally chilling innovation.
The court has not done that. The court has caught the bad actor but provided no guidelines for the good actor.
[...]
In splitting the baby, and trying to get into technological design, I fear that the judge has let himself in for a helluva fight. And it's not like he didn't know that: he saw the litigation as it went on. I fear the dramas will continue as parties fight over orders. We are back in Napster territory again.
"It seems that Kazaa users are predominately young people, the effect of [Kazaa's] web page [with the slogan, 'Join the Revolution'] would be to encourage visitors to think it 'cool' to defy the record companies by ignoring constraints."
KaZaA has announced that it will appeal the ruling.
Update (September 8): The discussion continues @ Madisonian Theory, Freedom to Tinker, and (of course) Weatherall's Law.
What's that, you ask? Evidently, it's when you ignore the terms written on the side of Lexmark printer cartridge box, refilling the cartridge with ink even when the company has designated it "single use only." According to the Ninth Circuit ruling [PDF] this week in ACRA v. Lexmark, opening the package means you agree to Lexmark's wishes. And if you break that agreement, you could face claims under contract and patent law.
As Fred von Lohmann explains it, it's sort of like when you buy those fancy Gillette Sensor razors, then purchase cheap replacement razor heads -- except that a court has ruled that if the package says "single use," then by opening it you've agreed you can't have any cheap replacements (but you can buy another Gillette "single use" razor). And that means the company that makes the replacement heads is out of luck, too.
Writes Fred:
[The strategy here is] a variant on the "shrinkwrap license" that used to appear plastered on software. Lexmark is bringing this practice to the world of patented goods. If you step outside the bounds of the "contract" (by giving your spent cartridge to a remanufacturer), you're suddenly a patent infringer. More importantly, Lexmark can sue cartridge remanufacturers for "inducing" patent infringement by making and selling refills.
Will patent owners exploit this decision as an opportunity to impose over-reaching restrictions on formerly permitted post-sale uses, repairs, modifications, and resale? Will consumers soon confront "single use only, not for resale" notices on more and more products? Will innovators stumble over labels announcing "modifications prohibited"?
Via trackbacks to my earlier post on the decision in the case formerly known as Blizzard v. BnetD, here are three more posts offering reactions to the Lexmark ruling:
Commentary:1. For me, the interesting part of this opinion is that restrictions on alienation (resale/repair) of consumer goods are generally not enforceable unless the good in question is patented.
2. In the wake of this and other cases, pundits are predicting that we will be seeing more "shrink-wrap" licenses restricting repair and modification attached to products that might need repair or modification.
3. If you plan to take such an action, be sure that your product is patented. (Query — will a design patent be sufficient?)
Just last week the StorageTek decision had copyfighters everywhere rejoicing that companies can't use the Digital Millennium Copyright Act (DMCA) to bar third-party repairs. Sadly, the same can't be said about third-party innovation.
Today the Eighth Circuit Court of Appeals in St. Louis, MO, issued a terrible decision [PDF] in Blizzard v. BnetD, the case in which three open-source software programmers are being sued by a videogame company because they created a program to improve and extend the gaming experience for people who legitimately purchased the games. In short, the court ruled that the DMCA prohibited the reverse engineering needed to create the program and that "click-wrap" and "browse-wrap" licenses are enforceable to prevent reverse engineering.
As EFF's press release explains, the program, called BnetD, allowed people who own Blizzard videogames to set up their own multiplayer games on the Internet and enjoy dozens of additional features instead of being locked into Blizzard's proprietary Battle.net game service. The programmers reverse-engineered Battle.net to make their product work with the service, not to violate copyright. The DMCA, which is supposed to protect copyright without harming innovation, has a clause specifically exempting reverse engineering. But as today's ruling proves, it's far too narrow and weak to protect third-party innovators.
A few weeks ago over at the Picker MobBlog, Julie Cohen observed that while the DMCA may be a failure at controlling the "darknet," industry players find it useful for other purposes -- like "marginaliz[ing] the open source movement (at least in the consumer market) by erecting insuperable obstacles to the development of interoperable entertainment platforms."
Prescient, no?
People should be able to choose where, when, and how they want to use the products they buy. The DMCA gives Blizzard the ability to force people to use their servers whether they want to or not. But copyright law was meant to spur competition and creativity, not crush it. It's time for reform.
Most of us, particularly in the high tech biz, sign agreements regarding intellectual property with our employers. Simple versions of these agreements state that whatever the employee develops that is related to the company's business is assumed to be company IP. More restrictive agreements may lay claim to anything developed on company time or equipment. Since this includes email discussions, such a clause can be far-reaching.
Now, according to Ed Frauenheim on CNET, Microsoft is advancing a theory in its fight with Google over Kai-Fu Lee that could give these IP agreements - even lenient ones - the force of non-compete agreements. The argument, which MSFT didn't invent but is using, is called "inevitable disclosure." The basic idea is that you can't avoid spilling some of what you know in your job, and that's going to mean that IP you agreed was the property of a former employer gets illegally transferred to the new employer. If you accept the argument that this is inevitable then you may also find yourself accepting the argument that the employee should not be allowed to work for the competitor because doing so would always result in impermissable IP transfer. Thus, the IP agreement becomes a non-compete.
In the high-tech business - which is rife with job-hopping, IP agreements, and a rapidly changing competitive landscape - this doctrine could be dangerous if it became widely accepted. The CNET story reports that California courts have rejected the doctrine but that it has been "upheld" in Federal court.
CA's rejection came in Schlage Lock Company v. Whyte and according to that Findlaw article, the relevant Federal case is PepsiCo., Inc. v. Redmond (7th Cir. 1995). In the PepsicCo case, the allegation was upheld that Mr. Redmond had access to relevant competitive trade secrets; in the Google case, Mr. Lee is claiming that he didn't have access to MSFT's search secrets. He and Google may prevail on those grounds; however, prevailing at trial is a far cry from not getting sued in the first place, which is how things ought to be, absent specific evidence of wrongdoing.
Kim Weatherall provides terrific one-stop shopping for people following the deliberations in Australia over how the country will implement the anti-circumvention provisions required under the US-Australia Free Trade Agreement (FTA):
Ever since the FTA was signed off last year, and particularly since the whole fair use inquiry started, the copyright-obsessed have been wondering - when will the anti-circumvention laws be drafted, and how. Australia has until 1 Jan 2007 to bring into effect the anti-circumvention laws required by Article 17.4.7 of the FTA.Anti-circumvention laws are the ones which make it illegal to 'circumvent' technological measures used by copyright owners to prevent infringement of copyright (although even that definition is controversial at the moment!). The most notorious example in the world is the US DMCA. Article 17.4.7 of the Australian FTA is modelled on the US DMCA.
Weatherall, associate director of the Intellectual Property Research Institute of Australia and a lecturer at Melbourne University, also helpfully provides her own primer on the "state of play" in Australia regarding digital copyright issues.
(Via Danny O'Brien @ miniLinks.)
Hurray! Justice delayed ends up being justice rendered. Over a year ago, StorageTek managed to convince a district court in Boston to misuse standard copyright law and the DMCA anticompetitively and shut down an independent service vendor who offered repair and maintenance on StorageTek machines. (By doing so, StorageTek was able to leverage the vast majority of service contracts on its library units for itself.)
Today, the Federal Circuit Court of Appeals reversed [PDF] the trial court's order, holding that third parties can lawfully repair and maintain another company's software under Section 117 of the Copyright Act and, more importantly, that the DMCA cannot be used to sue such vendors when the repair and maintanence itself doesn't violate any rights under copyright law. The decision follows up on the Court's previous vindication of Skylink in its DMCA case against Chamberlain over garage door openers.
Here are some of the choice quotes from the opinion:
Continue reading "Fed. Circuit Smacks Down Bad DMCA Decision Re: Independent Repair Techs"
...or so prays Robert X. Cringely's latest column. In it he paints a bleak picture of everyone's favorite sock puppet Orrin Hatch using a last-minute "hearing" to push through a piece of highly favoritist legislation. Fortunately, it seems like Hatch didn't quite succeed, yet.
Unfortunately, Cringely's attempt to discuss IP law is overgeneralized to the point of wrongness (patents don't protect ideas, they protect inventions). His basic thrust - you and I aren't being helped by attempts to reform patents - seems correct. He asserts that the majority of patents are issued to "smaller companies" (here he means smaller than Microsoft, which is a pretty big list) and individual. Is that true? Given the patenting engines run by IBM, HP, MSFT and not to mention the pharma/bio companies it seems like this may no longer be true. Cringely admits that he knows a number of individual inventors so this may just be his personal experience bias.
He also notes that the switch to first-to-file isn't really the problem with the US patent system, and goes on to list a number of problems implicit in the proposed "reform." Regardless of the details I think there is general agreement outside of the big patent-holding companies that this is a bad bill. Let's just hope Congress can actually manage to focus on the real problems with patents and not be distracted by this kind of boondoggle.
The Picker MobBlog about the failure of the DMCA to impact the "darknet" -- that is, to achieve its ostensible aim -- has officially ended, but it only takes one smart respondent to wander past the gates. Check out where Wendy Gordon arrives today:
[Both Fred von Lohmann's] paper and this blog have been concerned with the next question to arise: once we assess the (in)efficacy of the DMCA in doing what it was supposed to do, what are the costs to be weighed against the alleged benefit? ...To pull this all together: What we've been calling the "retail" level is really the level of the lawful user. As several posters have pointed out, the DMCA doesn't stop unlawful copying by those people -- they'd obey the law anyway. For them, what the DMCA does is stop fair uses, and impose extra costs (and contracts) on the use of material that might otherwise be lawfully and freely available. So the DMCA can be seen as a law that hurts the lawful users, to stop the unlawful ones.
In turn, that reminds us of why the question Fred raises is so important: for what purported benefit does the DMCA sacrifice the lawful use of information?
Update: You might also enjoy some Picker MobBlog metablogging by Derek Slater, who is nothing if not persistent in seeking the middle ground in the copyfight.
Update #2: "Smart cow" reference explained here.
Courtesy of Ren Bucholz:
Intellectual property is important, but the appropriate intellectual-property regime for a developing country is different from that for an advanced industrial country. The TRIPS scheme failed to recognize this. In fact, intellectual property should never have been included in a trade agreement in the first place, at least partly because its regulation is demonstrably beyond the competency of trade negotiators.
Over at the afore-mentioned Picker MobBlog, Julie Cohen counters Fred von Lohmann's argument that the DMCA is a failure at fighting the "darknet," arguing, among other things, that it's effective for influencing the kinds of technologies engineers create and keeping open source out of the mainstream (Cohen: Brilliant Advocacy; Incomplete Analysis):
[It's] quite possible to conclude that, from the industry's perspective, the fact that the DMCA was put in place while the technologies were still in their infancy is a feature, not a bug. I read the statute as intended in part (by its industry advocates, not by Congress) to establish a set of engineering incentives for new products and services, as to which consumers have no settled expectations, and to marginalize the open source movement (at least in the consumer market) by erecting insuperable obstacles to the development of interoperable entertainment platforms. Again, I think it's way too early to opine confidently that the statute isn't working toward these ends.
Here, I think Julie points us in the right direction. The legal regulation of TPMs [DRM] continues to pay one very large dividend to rightsholders, regardless of the Darknet: anti-circumvention regulation constrains innovation and competition in the technology marketplace, thereby ensuring, in the words of one entertainment industry lawyer, a "well-mannered marketplace."Thanks to the DMCA, content owners deploying content with TPMs enjoy an important new "exclusive right"—the right to demand that technology vendors enter a licensing arrangement before they can build a device that can access or copy the content in question.
According to Paul Festa at CNET, the US Copyright Office is soliciting comments on a proposal to create a Web service for prospective copyright owners that would support only Internet Explorer (IE). I just don't have the energy for the level of sarcastic commentary this really deserves. As a usability professional and a Web designer I sympathize with the problems of multiple browsers and incompatible levels of functionality. But I can't conceive of a reason for the national government not to produce a system that uses the basic, commonly supported technologies that would enable a wide variety of accesses.
Apparently they're pointing the finger at the underlying implementation technology, which some sort of Siebel software. Seems like a pretty poor excuse to me.
In this case the dumb idea is "claim any IP use we don't like is a DMCA violation." It's been a while since we've seen one of these stories and the latest one is likely another tempest in a teapot. But here goes:
Kristen Philipkoski has a story on WIRED about Jose Avila. What makes Avila typical is that he's a creative software development guy who had to move around for job reasons and at the moment is stuck paying two rents. What makes him atypical is that he's responded to this situation by creating furniture for himself entirely out of FedEx boxes - they're sturdy, you see. Avila has an architecture background and he created a Web site (fedexfurniture.com) to document his process and results.
For some reason, this upset FedEx and their lawyers insisted he take down the site, claiming that the site infringed on its trademark and copyright. In specific, they claimed DMCA violations. Say what? Avila is being represented by lawyers from the Stanford Law School Center for Internet and Society who pointed out that FedEx's claims really appear to be about trademark infringement and conversion (link courtesy of Philipkoski's article) neither of which are coverd by the DMCA.
As of this writing the site is back up and FedEx's next move is unclear.
As Cardozo law professor Susan Crawford recently noted, there are a lot of "acrimonious acronyms" in the battle over the future of the Internet. One of the most dangerous: the Communications Assistance to Law Enforcement Act, better known as CALEA.
Back in the Clinton era, the FBI asked for a law to force all telecommunications companies to build backdoors into their networks for easy government spying. As part of the desperate Capitol Hill horse-trading before CALEA was passed, privacy advocates won a concession: the new law would not apply to providers of information services such as email and Internet access. But as of Friday, that's no longer the case. The Federal Communications Commission (FCC) has issued an advisory stating that it has granted the FBI's request to expand the scope of CALEA to include Internet broadband providers and certain Voice-over-IP (VoIP) providers.
So what does this mean in practical terms? It means the government will be asking broadband providers -- as well as companies that manufacture devices used for broadband communications -- to build insecure backdoors into their networks, imperiling the privacy and security of citizens on the Internet. It also means that technological innovation will be hobbled as companies involved in broadband are forced to redesign their products to meet government specs.
This is bad news on multiple levels. "Expanding CALEA to the Internet is contrary to the statute and is a fundamentally flawed public policy," says Kurt Opsahl in EFF's press release. "This misguided tech mandate endangers the privacy of innocent people, stifles innovation, and risks the functionality of the Internet as a forum for free and open expression."
And the government isn't stopping there. The Department of Justice (DOJ) is asking airlines to build similar backdoors into the phone and data networks on airplanes. EFF and the Center for Democracy and Technology (CDT) last week submitted joint comments [PDF] with the FCC to oppose this unprecedented, sweeping new technology design mandate and anticipatory wiretapping system.
As the press release points out, the proposal to expand CALEA to airline broadband illustrates the fallacy of law enforcement's rationale for its CALEA request. To avoid the statute's carefully crafted compromise -- the total exclusion of information services from the CALEA's reach -- the DOJ argues that CALEA covers broadband services because they have "substantially replaced" the local telephone exchange. But airplane communications have hardly "substantially replaced" local telephone services. This request is about opening the door for CALEA to cover just about anything.
EFF's CALEA FAQ gives it to you short and not-so-sweet:
Q: "Is the FBI trying to dictate how the Internet should be engineered to permit whatever level of surveillance the FBI deems necessary?"A: "Yes. What the FBI is really asking for is a massive overhaul of how the Internet works to make it easier for federal agents to listen in on people's digital conversations. EFF believes that law enforcement should not be allowed to have veto power over proposed innovations to the Internet in order to make spying easier. In addition, federal agencies should not force the broadband industry -- and by extension, its consumers -- to bear the considerable costs of purchasing and implementing surveillance-ready network technologies simply because it suits the government's needs."
For more on the FCC and CALEA, check out FCC Schizo on DSL, Wiretapping, Justice Department Effort to Eavesdrop on Airline Passengers Challenged, and Professor Crawford's No Reason for Optimism.
Stanford CIS Excecutive Director Jennifer Granick is the talented criminal law attorney who has been helping Michael Lynn sort out what to do in the face of legal threats over his BlackHat conference presentation about problems with Cisco's security. In the second post in a series on "Ciscogate," Granick picks through the grab bag of legal claims in the Cisco/ISS complaint [PDF], giving her take on the legitimacy of each claim. The result is an educational look at a range of legal tools that can be leveraged to silence people: copyright law, trade secret law, end user license agreements (EULAs).
Here, Granick makes short work of the copyright claims:
You'll remember that I wrote yesterday that ISS claimed copyright in the slides Mike used on Wednesday morning. I hadn't seen the original ISS slides, but I imagined that they looked different but had similar bullet points or words. This wasn't very interesting to me. I would argue that the bullet points were unoriginal and not deserving of much copyright protection, or that it was fair use, or that Mike jointly retained the copyright with ISS, but none of this is particularly fun. The second copyright claim was Cisco's in the decompiled code. Certainly Cisco has copyright in the source code, and I suppose in the binary, too, and therefore it probably has copyright in the machine code as well. But Mike only used little edited snippets of the machine code to illustrate his points about how he found the IOS vulnerability and why it existed. This was classic fair use, something important to defend, but only kind of fun, if only because it was so damn obviously permissible.
Also worth the read: Seth Finkelstein's Jennifer Granick on Defending Mike Lynn (Cisco/ISS router disclosures)
Is it just me or is this completely insane? The European Commission has (last month) proposed a directive that would make wilfull intellectual property infringement a criminal offense. Not civil. Jail time. Seizure of goods. A ban on engaging in commercial activities. Denial of access to legal aid (that last is particularly chilling, to me).
I feel like I've fallen through the proverbial Looking Glass here, into a world where mental concepts are accorded the same (or greater) status than actual physical objects. I can't even begin to understand the thinking behind this. For pete's sakes, people it's only ones and zeros!
Back in March, I pointed to a Law.com column arguing that the case was about application of US (patent) law outside US borders. Now the CAFC has issued a decision that tries to address the jurisdictional issues. Specifically, they've upheld most of a patent infringement verdict against RIM. However, they also agreed that certain of the claims are outside US jurisdiction. And they've granted the Canadian government's request for a full rehearing on the jurisdictional questions.
Decision links (courtesy of Michael Geist):
http://caselaw.findlaw.com/data2/circs/fed/031615op.pdf
http://caselaw.findlaw.com/data2/circs/fed/031615rp.pdf
Susan Crawford provides a short history of "acrimonious acronyms" in the copyfight -- bad laws like the notorious "Hollings bill" (or CBDTPA) -- and proposes adding another to the list: the "Broadband Investment and Consumer Choice Act" (or BICCA):
Indirectly, [BICCA] aims to do the same thing that SSSCA, CBDTPA, and the [Broadcast Flag] tried to do. ...The whole point of BICCA is that it dismantles any interconnection obligations for broadband providers. These obligations go upwards -- so there's no requirement to allow all applications or content to be permitted or carried on the network. And they also go downwards -- so there's no requirement to allow all user devices to be attached to the network.Unauthorized devices (such as untrustworthy PCs) would quickly become very unattractive to users. What's the point of owning something that isn't authorized to connect to any broadband network?
The missing link here is, of course, the incentive of the broadband providers to allow only authorized devices to connect to their networks. Why would they want to frustrate their customers? Well, if the only way they can get access to really great big media content (the kind of thing they think consumers really want) is to make deals with content companies to have "mini-Hollings" terms of service, I bet they'd do it. And law enforcement would like to have a regime of locatable, authorized devices in place as well. Gradually, incrementally, the world of "authorized devices" might narrow.
In what I read as a bizarre decision (can you say "Dodge!" boys and girls) a three-judge panel has issued a decision denying plaintiffs satisfaction in Nitke v Ashcroft. Lots of folk we know are involved in this case and have links:
Wendy Seltzer has the (PDF) decision online. Seth Finkelstein (serving as an expert witness in the case) has a page of resources. The best summary from the plaintiff side is John Wirenius' LiveJournal entry. (Wirenius is one of the lawyers on the case.) There's also an AP story (here on Newsday.com)
As best I can parse it, the judges agreed that the CDA (the law being challenged in the case) was in fact chilling speech that ought to be protected. However, since Nitke et al couldn't prove how much speech was being chilled, the judges ruled that she hadn't "met the burden of proof." As Wirenius notes, the judges set an impossibly high bar and then offered no guidance on how plaintiffs might meet it. Nitke has said she plans to appeal.
I can't fathom the kind of metric I would use to measure a "total amount" of chilled speech. How many people are intimidated into silence? Number of images not photographed? Size of Web sites never built? Megabytes of p0rn downloaded in secret? Someone help me out here.
The NYTimes is reporting that Sony BMG is taking a page from MS's playbook and is near to a settlement with NY Attorney General Eliot Spitzer's office over the radio payola scandal. If things pan out as rumored, Sony BMG will actually be forced both to admit misconduct and to change its practices. I am so not holding my breath; the Cartel will just adapt slightly and nothing overall will change.
UPDATE: Reuters is now reporting the settlement has in fact gone through. Sony BMG agreed to pay USD10 million. Bloomberg reports that Sony BMG will cop to "improper conduct" and avoid prosecution. No word on whether the other three big companies Spitzer went after (Vivendi Universal, EMI and Warner) will also cop.
Anne Broache reports for CNET on a panel discussion pitting the likes of EFF's Fred von Lohmann against the likes of Don Verrilli, one of those who argued the case on behalf of MGM. Von Lohmann seems to want Congress to legislate a new "bright line" that would clearly establish clear protection for inventors and innovators. An admirable goal, but considering how godawful most of the IP-related legislation emerging from Congress has been in the past 10 years I'd class this as a foolish wish.
Congress doesn't seem inclined to act in any case, which means we're likely going to have to go back to a series of lower-court cases and appeals to try and establish what Grokster's "intention" standard means. Even if we got a bright line, that doesn't mean it would necessarily be a better or more sensible situation (see last fall's "Do not stare into bright line with your OTHER eye").
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