Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
This has been well-covered elsewhere. I just wanted to point out - thanks to Ken White at Popehat - that the Judge clearly understood how Prenda were taking advantage of the horrible state of copyright law in the US. "[Prenda] discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs [...] So now, copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry."
I got a press release from Aereo today indicating that they are going to launch in Boston in mid-May. Significantly, this is outside the Second Circuit, where Aereo recently won its appeal. If I was a betting man I would bet that this will be an invitation for the broadcasters to file a new round of lawsuits in hopes of finding a friendlier ruling and creating a variance in opinions that could pressure the Supreme Court to revisit the 2nd's decision.
Patent "Monetization" Entities... Which is to Say, Trolls
A study report out of UC Hastings College of the Law reports that "patent monetization entities" - called "trolls" in the headline - filed 56% of patent lawsuits last year, more than double the percentage of five years ago. Hear that, Apple? You get cracking now! On a more serious note, the study also looked at public notification systems and determined that they are woefully inadequate. People and companies are not able to find out when patents are being asserted in lawsuits, which deprives them of the chance to avoid infringement.
David Post, writing at Volokh Conspiracy on the Kirtsaeng decision, is worth quoting entirely: The Court – in a utterly brilliant opinion by Justice Breyer, a minor classic of the “here are all the reasons why my arguments are better than yours” school of opinion-writing — rejected Wiley’s argument and refused to impose the geographical restriction Wiley sought.
Why TV Ad Revenue Goes Up and Internet Ad Revenue Goes Down
This is pretty far off the nominal Copyfight beat but I could not resist pointing to Felix Salmon's column on "Content economics." It's a very good look at why Net advertising is not the same as/does not replace TV advertising and why broadcast TV can keep raising its prices even as its viewership shrinks. Hint: it's all about the fragmentation.
Dear Gamers Workshop, Welcome To Social Media Hell
As I mentioned yesterday, GW has acquired a whole new set of un-friends. Today they hit the bigtime, with a front-page linked article on io9, a very popular site for SF/F/gaming/movie genre fans. Apparently they're also getting thrashed on Twitter. Dear GW, back down now. Apologize. You need to stem this tide. Every minute you let this go on your name becomes more mud. If this goes on for a week it'll take you a year to wash the stink off. The entire Northeastern US is sitting at home under a blizzard and has nothing to do all weekend except talk about how shitty you have been to one of our friends.
An acquaintance who's trying to shift from "having a day job" to "making a real living as a musician" sent me a link to Cashmusic. This is a new non-profit organization that bills itself as building "open source tools for musicians". The artists still need to do a fair bit of heavy lifting, but as a non-profit they may be well positioned to help get funding streams for creative types flowing. They did a Kickstarter to get some funding and today they announced their open beta. I'm not a music-maker but if you are and have a chance to try them out please write in with your experiences.
A colleague of mine posted a link to this set of Flikr images by user b_carruthers. The set is called "Similarities" and shows pairs of images that are visually similar - some on purpose and some by accident. It's a good reminder that our laws about creative originality rarely line up with how actual artists actually create.
Following Canada's lead, it appears that the UK is set to introduce a number of important private exceptions to copyright restrictions that will help regular private users, users with various disabilities, educators, and so on. Michael Geist has the whole list in his blog. The overall idea seems to be a recognition that activities people do for certain reasons, such as individual back-up, classroom teaching, etc. are not inherently violations of the commercial marketplace's enforceable copyright restrictions. These exceptions don't touch on commerce; instead, they appear to add a hefty amount of sanity to recognizing that peoples' everyday activities are not theft.
Instagram Isn't Owning, Just Granting Itself License
An astute reader pointed out that I had misinterpreted the new Instagram Terms of Service. As they've hastily tried to clarify, they don't claim "ownership" of your pictures, they just (and here I'm quoting the ToS) require you to: "grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service..." Got that? It's a subtle distinction - owning versus getting to use however they want - apparently too subtle for me. And remember, still no way to opt out except closing your Instagram account.
Tobias Buckell, At Length, on His Kickstarter Experience
It seems wrong to write so few words in response to a 5,000 word heartfelt experience report, but really I have not much to add except, "Go read this!" Buckell is what we used to call a mid-list author and his Kickstarter story is really important to understanding how someone who has some fans but isn't A Very Big Name can use a lot of hard work and new (self)publishing models to change their career. (h/t John Scalzi's "Whatever" blog for the original pointer)
Guy Kawasaki, a man with more than a few books to his name, did a piece on Minnesota Public Radio on self publishing. He lists five benefits and three drawbacks, all of which we've touched on to some degree. In his Google+ posting highlighting the show he called attention to the extensive comment (currently first on the list) left by a woman who has used self-publishing to turn around completely her experiences as a romance-novel author. It's a good reminder that you can't easily lump together all the different segments of publishing and get a unified picture. Romance is not textbooks is not reference books is not SF/F, and so on.
Independent e-book publisher Fictionwise is ceasing operations. They blame the demise on backing the wrong technological (format) horse. Fortunately for Fictionwise's readers, their accounts won't go away entirely. Fictionwise has arranged to transfer readers to B&N's Nook Library infrastructure. As one of my friends pointed out, though, this FAQ is conspicuously silent on the question of DRM, which Nook has and Fictionwise did not.
In a completely un-shocking move, Judge Koh has agreed to hear motions and arguments on the question of whether the foreman in the well-publicized Apple/Samsung trial improperly influenced jury deliberations. Unless I'm mis-remembering, about 48 hours after the verdict was returned SCOTUSblog said this would happen. The guy may even have lied during voir dire which might be grounds for a whole new trial, not just nullification of the verdict.
This is Happening Right Now: Amazon DRM-nukes a Customer
This link is going viral in the spaces I inhabit right now. Short form: an innocent woman has her account closed and her (paid-for) collection of Kindle e-books nuked with no warning and no explanation by Amazon UK. This is, as the blurb says, DRM gone insane. I did tell you that e-books suck, right? As I write, the link has appeared on popular blogs including our friends at Boingboing and people are starting to post copies of the WTF letters they've written to Amazon. I anticipate we'll see an apology and retraction by tomorrow AM, which will be great for the individual woman but still leave all the rest of you e-book readers hanging by the same thread.
A Copyfight reader responded to yesterday's story about Bowman v Monsanto to say that he believes SCOTUS will reverse in this case. The reason is that unlike Circuit courts, which can disagree with each other on a matter that SCOTUS must then settle, the Court of Appeals for the Federal Circuit (CAFC) is the binding decision body for patent matters. Its decisions have precedential weight; therefore, if SCOTUS simply wanted to affirm that CAFC was right in this case there was no reason to grant cert. Since they took the case, ipso facto, one is led to believe they intend to reverse. That may still not happen since only 4 Justices' votes are needed to grant cert and 5 votes are needed for a majority, but it's the way this reader is betting.
Sometimes the lede is just so perfect I can't improve on it. Therefore: The Pirate Bay has made an important change to its infrastructure. The world’s most famous BitTorrent site has switched its entire operation to the cloud. From now on The Pirate Bay will serve its users from several cloud hosting providers scattered around the world. The move will cut costs, ensure better uptime, and make the site virtually invulnerable to police raids — all while keeping user data secure. (h/t +Rob Malda for the original pointer)
Cory Doctorow's announcement that he is direct-selling the (professionally done) audiobook version of his recent Pirate Cinema reminds us that one of the big problems with mainstream online retail outlets (*cough*Amazon*cough*iTunes*cough*Audible*cough*) is that they all refuse to carry DRM-free titles. Even though the publisher (in this case Random House Audio) is perfectly willing to make the high-quality title and wants it sold, the retailers are blocking it. Get a freaking clue, already, guys.
Observant e-book buyers have mailed to let me know that some of the effects of the e-book price-fixing settlement are starting to be seen. When you buy e-books now in some online stores (notably Amazon) you can see text stating that the book's price is "set by the publisher" or "sold by $publishername." Other e-books, from companies that signed the settlement, are starting to come down in price as well. If you see something interesting in this space do drop me a note.
WIRED offers up an amusing Wargames-themed info-graphic mapping the current patent war between Apple and various proxies for Google (Motorola and Samsung primarily). Click on a country to get a pithy summary of what each player has going in the current situation, but realize that the main event has yet to start. And when it does we are all going to be sadder and sorrier.
Julie Hilden has a nice primer up on Justia's IP Law blog on how fair use cases can be reasoned. Using the case of Monge v Maya, in which a panel of the 9th Circuit just overturned a previous decision, Hilden traces the classic four-factor test that is intended to guide courts in determining if a use of copyrighted works is fair. In this case - concerning stolen wedding photos - Hilden walks through how two of the three judges found the factors to weigh against Maya. The fact that the decision was not unanimous, though, shows that these factors are broad and general enough to be subject to different interpretations and weighting and I would expect Maya to ask for an en banc re-hearing.
According to Dan Rowinski in the latest ReadWriteWeb/Mobile posting, the reason why Apple has embarked on a world-wide patent war is because they're losing the marketing war, badly. Specifically, it appears that the Apple share of the smartphone market has dropped to just under 17% while Android devices (across all makers) accounts for just over 68%. Samsung, the latest Apple target, accounts for 44% of Android devices. If you can't beat 'em, sue 'em - where have we heard this before?
A new update notice from Google's "Inside Search." is getting notice in the copyfight community. The notice describes a new change in Google's ranking algorithms that will cause pages with "valid copyright removal notices" to appear lower in the rankings. It's an interesting step, and given that it's based on validated notices it's certainly better than basing anything on filed notices. Still, the notice-and-takedown process is far from perfect, particularly for people who want to contest notices, and I hope Google keeps a close eye on how this one plays out.
Research Project on Growing Book Challenges in the US
In this case a "book challenge" is an attempt to have a book or other reading material removed from publicly accessible spaces, usually library shelves or school curricula. The good folk at the Comic Book Legal Defense Fund sent out a press release calling attention to a project by the Missourian titled "Unfit to Read?" The project notes that some challenges have been successful and that both the number and success rate of challenges appears to be on the rise; it then examines reasons for these trends, with some examples and supporting graphics.
On his personal blog, Lauren Weinstein catalogs the history of this current #NBCfail. His focus is on the Streisand Effect but I was taken by the NBC network attitude that American audiences are "too stupid". We're too stupid to install TORbutton, too stupid to watch sporting events without editing and commentary, and too stupid to figure out and get away from the ongoing scam that is pay-one-price-for-shit-you-don't-want cable subscriptions. Yeah, right. I'm reminded of Amanda Palmer's observation that the entire big-label music industry is built on the premise that people have to be tricked into parting with their cash. Can you imagine if television was built, instead, on the idea that there are millions of passionate fans out there who will pay money to get what they want, when they want it, how they want it? That would be cool.
Suddenly, it seems, stories about the end of cable television are everywhere. Today's entry from ReadWriteWeb asks how we will watch television in the future. That's actually an interesting question, since I don't expect cable TV to die and vanish overnight. There will be a transition period, which I expect to last most of this decade. Cord-cutting for an individual or household is sudden (we just dropped our cable subscription today, for example) but national trends are slower. There's still time for cable and network execs to realize that people will watch television, but it needs to be served Internet-style, which means much more on demand, much more a la carte, and much better integrated into other digital offerings such as Web sites, social media, and new offerings that are only now in the incubator stages. I will probably not blog a lot more of these general high-level stories but readers with items of specific interest should feel free to keep sending them to me.
Nature, the highly respected journal, that is. If you are interested in a quick peek behind the scenes at how editors for big publications balance and swing with the authors trying to get published, I recommend Friday's blog post from Action Potential, one of the blogs at nature.com. It talks about how two similar papers came to be published separately despite similarities while a third paper, also similar, did not get published (there).
I talk a lot about the need for new business models that are realistic and sustainable in the digital-centric 21st century. Sadly, we're also in need of some serious updating of government policies and practices, too. David Kravets had a nice piece on WIRED yesterday profiling Judge Sofaer, a man of long judicial and prosecutorial experience. Sofaer has joined EFF in fighting the US DOJ's seizure of innocent peoples' content just because that content happened to be hosted on a Megaupload server. In the piece Sofaer notes that there are reasonable, well-tested procedures for handling things like seizures and criminal evidence that simply aren't being applied to digital cases.
I've been enjoying my subscription to Justia's Intellectual Property Summaries e-newsletter so I thought I'd pass on that pointer. Justia publishes a variety of newsletters including editorial stuff, opinion summaries by various (US) jurisdictions, and by practice area, including of course Intellectual Property as well as more specialized summaries related to Patents, Copyrights, and Trademarks. The summaries are brief, generally well explained, and contain links to the fuller case material if something piques your interest.
Katrina Kaiser has an interesting Q&A with Lino and Mario Bocchini up on EFF Deeplinks. The siblings are in a multi-year fight with the major Brazilian newspaper Folha de São Paulo over their parody site Falha de São Paulo. "Folha" = newspaper, but "Falha" = fail and the paper didn't like being satirized as a failure, nor having its political biases highlighted. The Boccinis are trying to get their domain back, which has been locked down by court order since September 2010.
Somehow I missed this when it went up a couple weeks ago: David Post of Volokh Conspiracy writes about the Supreme Court's decision to review Kirtsaeng v John Wiley. He calls the law involved "baffling" and "baroque" and provides good background on first-sale doctrine and the cases that have led us to the present (broken) situation.
A quick follow-up to yesterday's long discourse on why Twitter's IPA is doomed. Part of the analysis of why is my differing opinion on how good engineers think. Today I direct your attention to "Why I joined Microsoft" by James Whittaker. He's been at MS, left for Google, and has now gone back. In the blog he explains why, including his view that MS is where he can "find work [to] be passionate about." Oh, and it "has the right collection of IP, product segment leadership and technical assets to be a disruptor." That is the calculus of a senior developer who's been in several environments and has his choice of where to work next. If you want to fashion an intellectual property agreement that is going to change the game, you need to understand the people whom you expect to sign that agreement.
In today's installment of his "The Big Idea" series, John Scalzi notes that e-books give some authors an opportunity to update older works that they couldn't otherwise revise. When nobody's willing to print an updated edition (it's much cheaper just to reprint), you can still make changes you feel are important for the electronic edition.
In today's installment of his "The Big Idea" series, John Scalzi notes that e-books give some authors an opportunity to update older works that they couldn't otherwise revise. When nobody's willing to print an updated edition (it's much cheaper just to reprint), you can still make changes you feel are important for the electronic edition.
On his blog "Whatever" John Scalzi declares he's tired of his readers griping about the prices of e-books. On the one hand I sympathize with him - it's not like authors have any say in what you get charged for an e-book. And he's right in that having an e-book reader doesn't make you a special snowflake. On the other hand, the fact that a large number of readers are complaining is probably an early warning sign and the response probably should be "Here's who to complain to" rather than "Shut up." I seem to recall a time not too long ago when lots of people complained about the then sky-high prices of audio CDs...
Neil Gaiman blogged last night about the first few titles of his "Neil Gaiman Presents" audiobook line being available. I wrote about this effort this effort back in September when it was first announced. One new-to-me tidbit from the latest post is that Gaiman is not just selecting the titles but is also picking people he thinks will make good readers. An interesting twist, and a natural for audio books.
Over at The Big Questions blog, my friend Steve Landsburg (who is himself no slouch at economic math) gives a shout-out to MathOverflow on the occasion of its second year. MathOverflow, and its companion site MathStackExchange, are breaking new ground in public collaboration and shared teaching/learning of mathematics from college level up to the newest theoretical advances. As Landsburg points out, these sites enable problems that might have taken months of work by an isolated individual to be solved in hours. They make this work by a careful combination of openness (anyone can join in) and restriction (MathOverflow really is for experts and active researchers), a model that I think can be replicated in many other fields.
CBLDF (the Comic Book Legal Defense Fund) sent out an announcement saying that they have taken over the intellectual property - including design, merchandising, and promotion - rights around the Comics Code Authority Seal of Approval. This is mostly a free-speech and intellectual freedom story, as the rights were assigned from a defunct entity with little controversy. Still, it's important to remember that intellectual property can be wholly hijacked by the same governments that provide protections like patents and copyrights. If you're not familiar with the CCA Seal story, CBLDF have a very nice summary up on their site.
A quick follow-up to my rant yesterday about the epically bad plan to allow one-sided seizures (hijackings) of domain names: TorrentFreak notes that the US Government just shut down 84,000 sites 'by mistake'. So, yeah, we should definitely pass a law saying that this is our policy for how to deal with illegal copying. Idiots.
As part of my music listening I came across Sunday Girl, covering the old Laura Branigan song "Self Control." And there on her MySpace page is an open invitation - want to remix? Here, have a free download of the a capella version. Like so many other artists out there, her biggest problem isn't worry that someone will do something bad with her music; it's worrying that nobody will notice her music in the first place. If you want to get noticed in music today, get yourself remixed.
In Which Dear Fred Shows Himself A Hopeless Optimist
The Copyright Clearance Center recently posted a podcast containing its interview with the EFF's Fred Von Lohmann in which (they claim) he expresses confident that that in 5 - 10 years, the kinks in copyright law will all be worked out. Considering that it took 12 years to go from smashing Napster to... um, smashing all of Napster's imitators I'm not so confident.
A nice piece on EFF Deeplinks yesterday by Tim Jones noting how the IFPI caused Blogger to delete six music blogs. Included in the killing was the blog "I Rock Cleveland" whose author had meticulously followed all the rules for getting permission to post or link to the music he discussed. As Cory points out on boingboing the message here is "Don't bother following the rules; even if you jump through all our hoops we'll still nuke you on a whim."
I suppose it all depends on where your priorities lie. If you're China then you're much more interested in suppressing dissent than in respecting international IP treaties you've signed. Thus you ignore the billions in counterfeited (pirated) goods made in your country. And you steal code from CYBERsitter for your Great Wall of Censorship.
One would think that the authors' positions in publishing, being better than the artists' positions in the recording industry, would lead to somewhat better incomes. No such luck. Rob Beschizza at boingboing pointed to Lynn Viehl's posting of her latest royalty statement. Significantly, this is a book that's been on best-seller lists and stocked well in stores. Ms Viehl calculates that one such book per year would probably leave her qualifying for food stamps.
Earlier this week the Times Magazine online published an extensive piece on Pandora, a service I've used for several years and started paying the premium for a year or so ago. Surprisingly, it looks like Pandora might actually turn a profit this year, due in large part to a popular iPhone app. This despite 50% of their revenue going to copyright fees.
Interesting AP piece on Geoffrey Raymond's art form: he paints a large picture of a public figure (e.g. Barack Obama or Lehman Brothers' ex-CEO Richard Fuld) then takes that picture out into the public and invites people to annotate it. Most people seem to sign their names or leave text comments. You can read his blog at "The Year of Magical Painting" and if you click through the portfolio link and ask Picasa for an enlarged image you can even read some of the comments.
Linked to me by a friend: 25 Places to Read Free Books Online. It's not a comprehensive list by any means; for example, they left off Baen's Free Library, which is an excellent SF resource. That said, I think it's excellent someone can compile a list of 25 such places, referencing many thousands of titles.
Back at the start of June, I was interviewed for a story that has finally appeared in Infotech and Telecom News. The story is mostly pull quotes from people talking about the MPAA's recent wins against Web sites that post links to copyrighted material. The article author wrongly states that I'm still associated with MIT, but at least the quotations are accurate.
A friend pointed me to a new search tool, compfight, that allows you to search for pictures posted to the Web photo hosting site flikr. The cool part is that you can check a box that lets you search for Creative Commons-licensed photos.
I just got a pointer to Kevin Kelly's blog "Street Use" that is dedicated to reporting on different ways people are using technology. I'm sure the Cartel isn't happy about things like "Phone Mining" (scroll down to Dec 19th).
A friend linked me to Brian Dettmer's "Book Autopsies". Apparently these works of art have been shown in the (US) National Gallery of Art. I love these images and really I can't see much difference between this - which we call "art" - and the use of pre-existing visual or auditory media in a mashup that gets called "piracy". Same point as Lethem made in his essay early this year.
WIRED's blog has a nice roundup by Scott Gilbertson of the latest entrants in the unlock-your-iPhone race. I'm not that interested in the cracks, but it is worth repeating Gilbertson's note that a recent exemption to the DMCA specifically permits lawful connections of any handset to any wireless network, exclusive deals between Apple and anyone else notwithstanding.
Jacqui Cheng at ars pointed to a series of Eurobarometer phone surveys on kids' online behavior. Covering kids 9-14, the surveys are intended to be used by the European Commission's "Safer Internet Programme." Not surprisingly, kids admitted downloading copyrighted materials. Equally unsurprisingly they had a wide variety of excuses for doing something most of them seem to know is illegal. As always, the "everyone is doing it" answer was popular, including many kids' assertion that their parents do it.
Ars Technica has a nice piece talking to Steven Page, singer and guitarist for the band Barenaked Ladies, on the topic of compulsory licensing. I think a pair of quotes sums it up nicely:
Page: [compulsory licensing] would allow consumers access to all the music they want and would ensure that artists get paid.
US Register of Copyrights, Marybeth Peters: this [is] a bad idea.
Yes, Ms Peters, we knew the Copyright Office has no interest in consumers getting music nor in artists getting paid, but you needn't have put it so bluntly.
The US House passed a bill that would establish a program to educate judges on patent law and procedures as well as allowing cases to be shuffled to judge who opt into the program. The goal is, of course, to have more knowledgeable judges process patent cases faster and more consistently. Certainly the BSA (Big Software... err, Business Software Alliance) sees it that way. However, as ars technica noted, this could just encourage more patent litigation, more patent bullying, and an "in club" of patent lawyers and patent lawyers-turned-judges.
I have a stack of entries I want to make, just as soon as work and life lighten up a bit, but I couldn't resist this one if only for the headline.
Mattel, the makers of Barbie and all things Barbie-ish, are suing the creators of the Bratz doll line. The allegations include claims of breach of contract, theft of trade secrets, copyright infringement, and racketeering. (Racketeering? When did that get to be a civil tort?)
According to the story in Businessweek, Mattel has literally been kicking down doors in its search for evidence. Funny, I thought that was the RIAA's job.
This Video Brought to You by the Letter 'U' and the Numeral '2'
An anonymous Copyfight reader sent me a link to this video mashup. It's a 'cover' of U2's "Sunday, Bloody Sunday" featuring rapid-fire clips of George Bush. I'm pretty sure that the music is done by rx, of the Party Party but I've no idea who did the video.
Friend-of-a-friend notes that he has left MP3tunes on good terms. Apparently his girlfriend lives up in San Francisco and he's moved up there. Also in the rumor mill is that he's gone to work with DoubleTwist Ventures. If they're for real they sound like the Cartel should be carpet-bombing them with lawyers already. One choice tidbit from their mission statement: "...the reverse engineering of proprietary systems for which licensing options are non-existent or impractical."
Greg Aharonian has posted the (PDF) text of a speech given by CAFC Chief Judge Paul Michel. In this talk, Michel tries to address the question of "how can I know if I might be violating a patent?" On the one hand, the answer is the same as how one knows if one is violating criminal law or governmental regulations - you read the appropriate public information. On the other hand, the availability, organization, and language of applicable patents and patent claims are... well, awful. Michel calls for things that should be obvious, such as standardization of claims drafting, use of clear terms, disallowing of vague and overbroad language, and more uniform conventions used by courts in construing claims. All good things.
"Politics and greed" are the main reasons, or so says The Reg's Andrew Orlowski. Not much new here - Orlowski is just recounting the sad reality that the hardware, software, networks and so on to allow a person to stream music he owns to himself anywhere have been ready to go for years. All that stands in the way are the fears and greed of the copyright holders. I get so tired of saying this, but it's still true - the customer experience is paramount. Making more isolated sandboxes and throwing up more barriers to transcoding and transport will not increase revenue. Really.
FAS - the Federation of American Scientists has posted a PDF of a governmental "research" (and I use that term loosely) report titled Patent Reform: Issues in the Biomedical and Software Industries. The thing is weak and bland. Aharonian referred to it as a "trite summary" and I tend to agree.
Get Your Sneak Peak While Authors Are Allowed to Give Them
Neil Gaimon's blog today has a wonderful "sneak peek" at the upcoming comic The Eternals. Gaiman posted the image without geting a bevy of lawyers involved and permissions forms signed because he's a creator who loves what he does and wants to share his love with fans (like myself) who enjoy this kind of thing spontaneously, not when it's a corporate-sanctioned mass media "event."
Emma Bull's LJ/blog pointed me to a detailed description of book P&L from the point of view of a professional editor at Tor Books. Editors at Tor (and I imagine other houses) have to do a P&L in order to justify a decision to buy a book. The entry gives fictionalized examples, but based on real numbers.
Via boing-boing, a pointer to a snarky p2pnet piece on the RIAA's loss in its attempt to transfer legal responsibility for some alleged file-sharing activity from a mother to her daughter. Sadly, they lost on incompetence (failure to produce necessary documents) rather than on principle.
Fellow copyfighter Joe Windish had an unpleasant run-in with Amazon's "Search Inside" feature, and blogged about it here. Essentially, he discovered that the publishers have gotten Amazon to put secret limits on peoples' online browsing.
Ralph Koster's blog has a short note about a gaming guild calling itself "The Syndicate" trademarking its name. This is, as far as I know, completely new legal ground. Questions will certainly arise about ownership given that most games' Terms of Service give the game company explicit rights to things created in the game. However, the organization (clan, guild, whatever it's called) is an extra-game and cross-game real-world entity, not something created within the fantasy world. As such, is it entitled to the usual trademark protections? Can it try to impose those protections inside the game world?
Well, yeah. We knew that. But this time it's coming from someone inside the record industry - Canada's Nettwerk Music Group, that country's largest record label. Nettwerk are defending (and taking the financial risk of a loss for) one of the victims of the RIAA's jihad on its customers on the principle that the ongoing legal campaign is not helpful to the artists it represents. No kidding, eh?
Another announcement landed in my inbox, this one for "holiday shopping" in case you want to give the gift of music without supporting the Cartel. Freeculture.org has put together a sextet of lists, each with ten suggestions for CDs you can buy while staying outside the grips of the major labels and the RIAA in general.
Brennan Center for Justice Report on Free Expression
Marjorie Heins of the Brennan Center for Justice's Free Expression Policy Project sent me a blurb touting their new report "Will Fair Use Survive? Free Expression in the Age of Copyright Control." The report (PDF) is available online. I have not read the report yet myself, but it's touted as covering threats to both fair use and free expression, at least as these things are understood in US law.
How the Sony DRM Debacle Can Benefit the Digital Music Market
Derek Slaterobserves that DRM proponents, who like to argue that "the market" stops DRM from going too far, don't much like it when the market stops DRM from going too far: "If you think current music DRM restrictions are not so bad, I challenge you: start the 'say yes to DRM!' campaign. And if consumers don't buyyour message, take that as a signal from the market."
Alex Halderman @ Freedom to Tinker: "It turns out that the web-based uninstaller SunnComm provides opens up a major security hole very similar to the one created by the web-based uninstaller for Sony’s other DRM, XCP, that we announced a few days ago."
Cory Doctorow, describing the kind of business models DRM enables: "They take the media that today lets you do everything copyright permits -- timeshifting and quotation, format-shifting and backup -- and they take away all those things. Then they painfully dribble each of those rights back as a 'feature' that you pay extra for. Drip, drip, drip -- each drop of functionality painfully and expensively squeezed into your living room, every time you want to do something you used to do for free. That's not a business-model. That's a urinary tract infection."
I am not a lawyer and so can't hazard much more than a guess, but wouldn't Sony be liable if someone's machine got cracked using the exploit that Sony/BMG installed? They might claim that the flaw lay in the original OS and not in their code, but I can't imagine Microsoft would let that claim stand. Certainly they'd be liable for contributory damages, even if not criminal penalties?
Because the street finds its uses [hyperlink, mine]: "Blizzard Entertainment, the maker of World of Warcraft, has created a controversial program that detects cheaters by scanning the processes that are running at the time the game is played. Called the Warden, the anti-cheating program cannot detect any files that are hidden with Sony BMG's content protection, which only requires that the hacker add the prefix '$sys$' to file names. "
Tim Lee in Reason, criticizing the misleading arguments IP maximalists use to discredit people who support traditional limits to copyright: "By lumping together the very real threat of the government taking people's land with an imaginary threat of IP anarchists abolishing intellectual property, the copyright industry and its allies hope to portray themselves as defenders of traditional property rights. The problem is that their own copyright agenda is a radical departure from America's copyright traditions." Lee has more about framing copyright debates here.
Mark Russinovich has discovered a rootkit on his computer that he believes is part of a DRM scheme for a Sony CD. Like your average malware, it's hidden, poorly written, difficult to get rid of. And according to Russinovich, the EULA says not a peep about it, meaning Sony didn't even bother with the usual pretense of giving people fair warning: "While I believe in the media industry’s right to use copy protection mechanisms to prevent illegal copying, I don’t think that we’ve found the right balance of fair use and copy protection, yet. This is a clear case of Sony taking DRM too far."
Laura Quilter: "The point of people’s support for Google Print is not that we support Google, love Google, or want Google to control our access to information. The point is that Google, and any other entity who wants to do it, should be able to add value to information. Google should not be THE ONE; Google should be ONE OF MANY."
Continuing my long string of flat-wrong predictions, I was apparently wrong again in the RIM/NTP case. SCOTUS has denied RIM's request for a stay while the appeal is considered. Since the appellate court has already denied RIM's request it's entirely possible that an injunction against RIM sales could be enforced in the near future. I've no idea what effect this would have on continuation of service to existing customers. An injunction against that would have tremendous impact and would probably be tantamount to forcing RIM to settle.
Mark Gibbs has a nice piece in Network World discussing the proposal for ID3 tags for music files. The gist is that ID3 tags could be added to any digital encoding format (ogg, MP3, etc) and that these tags could contain information such as table-of-contents. Thus, you could rip a whole album to one file and yet retain the ability to skip around to various tracks within the larger file, using a player that read the ID3 information. In theory, Version 2 of the ID3 tag proposal permits any sort of tag, including very long ones. Given that freedom, it's easy to see that DRMistas and others will have many uses for them, including encrypted watermarks, hidden alternative encodings, and I'm sure you can all think of other amusing nastiness.
Noted tech pundit Walter Mossberg lays it on the line for the intelligentsia, in a column titled "Media Companies Go Too Far in Curbing Consumers' Activities." Mossberg is no copyfighter, but he is very tech savvy and understands just how much DRM can damage existing and emerging technologies. Let's hope that the right people read this column and "get it," too.
Spoke too soon; can't resist pointing you to Cory's new 3-minute elevator speech on what the broadcast flag is and why it matters -- because you know as well as I do that despite recent setbacks, the prospect of unprecedented veto power over new technologies is far too attractive for the entertainment mega-corporations to stop pushing for it. So plans A, B, and C didn't work. Get ready for plan D.
Sad, sad, sad: "The Association of American Publishers filed suit against Google Wednesday, charging the search giant with copyright infringement for its plan to scan and digitize books for its Google Print online library program." Courtesy of Xeni Jardin and Jason Schultz, the actual complaint (PDF). Update: A post containing links to previous Copyfight coverage on the library project is here.
According to WIRED, he's moving to go to work for a start-up in San Diego. No idea what on, though it purportedly involves reverse-engineering. Which, in turn, leads me to note that San Diego is within both US and California legal jurisdictions. And, really, not all that far from Cupertino, either.
Jason Schultz @ LawGeek, in a post explaining why IP maximalists can't plausibly claim to be champions of a "free market" approach to copyright issues: "If they want to mandate and veto the pace of innovation in the tech market for the next 20 years, they should just come out and say that and own up to its criticisms. But to accuse others of being anti-market is cowardly and most importantly, wrong."
William Patry, in a post tracking the evolution of the legal definition of a "copy": "We may be at the end of the road conceptually and semantically when 'copy' can be impressed into banning all sampling and imposing liability for buffering and caching no matter the end purpose."
And as an individual property owner, you might want more control over how your property appears on a map, and whether it appears at all, as well as the right to demand payment.
But the law would be stupid to give property owners that right. Imagine how terrible maps would be if you had to negotiate with every landowner in the United States to publish the Rand McNally Road Atlas. Maps might still exist, but they'd be expensive and incomplete. Property owners might think they'd individually benefit, but collectively they would lose out—a classic collective action problem. There just wouldn't really be maps in the sense we think of today.
Bradley Rhodes, a.k.a. "DocBug," bemoaning the fact that Hymn can't strip the DRM from iTunes 6.0 purchases :"If I'm going to give my hard-earned money for music, it'll be a form where I can play it where I want, loan it to a friend or sell it to a used record store when I'm tired of it." Amen.
Anthropologie Sues Wal-Mart for Stealing Boho Chic
David Bollier on the news that Anthropologie and its parent company, Urban Outfitters, are suing Wal-Mart over allegedly copying the design of two skirts: "In its complaint, Anthropologie claims that Wal-Mart 'has embarked upon a conscious strategy of copying the designs of others as part of its effort to build its "cheap chic" line.' It cites the fact that Wal-Mart opened a 'trend office' in New York’s garment district to track of the latest fashion trends. Pretty alarming, eh?"
Wal-Mart, selling cheap knock-offs of trendy, high-end clothing. The nerve.
Via Cory, NTK's description of the pestilence that is Europe's coming Broadcast Flag: "[This] variant seems a lot nastier: tweaked by Hollywood lawyers to determine at a much finer grain what Europeans get to record off their TVs, where you get to save it, what constitutes a 'family,' and who exactly in open source will be buggered this time."
Alex Macgillivray Andrew McLaughlin has the scoop in a post that explains why Alan Davidson, the former associate director of CDT, joined Google: "Our mission in Washington boils down to this: Defend the Internet as a free and open platform for information, communication and innovation."
Michael Geist has an excellent post on the "take-away" lessons for Canada from the Australian High Court's decision in Stevens v. Sony. Among them: Like Australia, Canada doesn't have to set up a legal regime identical to the one in the US in order to carry out its obligations under WIPO agreements. It can refuse to let copyright holders turn a limited monopoly over copyrighted works into an unlimited right to control what technologists and consumers do with legitimately purchased products -- preserving innovation, free competition, consumer rights, and traditional balance in copyright law.
Jamie Love of the Consumer Project on Technology, in the group's statement on this year's WIPO General Assembly: "The United States government and the European Commission should abandon efforts to use WIPO as an instrument of uncritically expanding intellectual property protection and the protection of their export industries."
Siva Vaidhyanathan's Culture As Open Source; Open Source As Culture is available for download from the "Open Source Jahrbuch 2005" (that's "Open Source Yearbook 2005" for English speakers). According to Siva, the open-source "revolution" isn't really revolutionary, but, rather, about "recapturing and revalorizing the basic human communicative and cultural processes that have generated many good things."
Yahoo has announced that it's working with the Internet Archive, the University of California, the University of Toronto, the National Archive in England, and others on a project to scan books in archives around the world and make them searchable via the Web (NYT coverage). The difference between this new "Open Content Alliance" and the Google Print library project: the Alliance will scan only public domain and freely licensed works, so that the entire collection can not only be searched but also downloaded for free. In addition, you'll be able to search for the books using any search engine -- including Google's.
Peter Suber: Does Google Library Violate Copyright?
The indefatigable Peter Suberprovides what your newspaper can't and won't: in-depth coverage of the debate so far among the experts who usually only get a sentence or two in the Google article du jour, plus links to additional materials and original sources so you can see what's happening sans spin. The bonus: Peter's personal assessment of the situation, which includes the following gem: "On the merits, it's an important question to settle. But I admit that I'm not very comfortable having any important copyright question settled in today's legal climate of piracy hysteria and maximalist protection -- a new world order getting old fast."
Intellectual Property Watch: "After a week of meetings at the World Intellectual Property Organisation General Assembly, the United States is possibly alone in firmly objecting to the continuation of a high-level meeting on a proposal for a WIPO development agenda." Quelle suprise.
Gary Shapiro, head of the Consumer Electronics Association (CEA), speaking before a congressional committee on "Protecting Copyright and Innovation in the Post-Grokster World": "Right now the recording industry is approaching another Senate committee with a proposal to give the FCC broad power to impose design requirements on new digital radios. Unlike the TV 'broadcast flag,' the proposal from the Recording Industry Association of America (RIAA) is not aimed at mass, indiscriminate, anonymous distribution of content over the Internet. The RIAA digital radio proposal is aimed squarely at limiting noncommercial recording entirely within private homes and automobiles."
Microsoft Desperately Searching for Stake and Holy Water
According to Dennis Crouch's Patent Law Blog, the USPTO has once again decided that the Eolas patent is valid. If you've blissfully managed to put this thing out of your brain, let me refresh: this patent won Eolas a half-billion dollars at trial against Microsoft, prompting cries of doom from many corners because it covers a technique that could be considered core to the current Web expereince. The case is presently before SCOTUS but the Patent Office's ruling is definitely a blow to Microsoft.
Drew Clarkcalls attention to a little-reported aspect of the Verizon/Disney deal: "[A] careful reading of the press release put out by Disney and Verizon shows how Verizon is agreeing to do copyright tracking that it refused to countenance on behalf of the RIAA."
Update: Says Fred von Lohmann (via email): "The press release says that Verizon retains the option to either terminate OR wait for a subpoena. So I think, fairly read, Verizon has NOT retreated from its earlier practices. But the mistake is understandable; I thought the same thing until someone pointed out the 'or.'"
The San Diego band Switchfoot, explaining why it has decided to help fans circumvent industry-mandated DRM: "It is heartbreaking to see our blood, sweat and tears over the past two years blurred by the confusion and frustration surrounding this new technology...We refuse to allow corporate policy to taint the family we've developed together." Update: Out-law.com notes that Switchfoot is a Christian band, and "is not encouraging people to steal" but aims to "improve the accessibility of CDs that have been purchased legitimately by fans who then encounter limitations on how they listen to the music."
The UK copyfighters who are creating an EFF-style digital rights group now have a blog, helmed by none other than Corante's own Suw. Check out the BBC article on the group, with photos of a filmmaker, a podcaster, a blogger, and an activist (yep -- it's Cory), plus the question, "Are you a digital citizen?"
In light of a possible likely Chief Justice John G. Roberts Jr., Jeffrey Rosen's excellent NYT Magazine piece on the kind of constitutional battles we'll see in the future is an even more valuable read. Of special interest to copyfighters: Section VI -- Property, Free Expression and the Right to Tinker.
A member of the Pho list, commenting on the news that Singapore's Creative Technology has secured a patent that it claims covers the way music tracks are selected on a device (like, say, the iPod) where the user navigates through a hierarchy of three or more successive screens on the display of the player: "It is my honest belief that the idea of filing things into categories can be tracked as far back as ancient Sumeria."
Brad Hill @ The Digital Music Weblog, responding to the John Borland piece on the DRM Microsoft is building into Windows Vista: "[Borland writes,] 'In short, the company is bending over backward -- and investing considerable technological resources -- to make sure Hollywood studios are happy with the next version of Windows.' Bending over forward seems more like it, but I can understand Microsoft's position."
Next, MPAA Will Pass Stamp Act, Establish Discriminatory Levy on Tea
Derek Slater @ Deep Links, commenting on the news that the international arm of the MPAA is using general search warrants to tackle piracy in Delhi, India: "These kinds of warrants are ripe for abuse. That's why they're prohibited in this country under the Fourth Amendment, which was prompted by British abuses of power during colonial times. The MPA has the right to go after those suspected of infringment all around the globe, but it should be ashamed of using tactics that ignore basic civil liberties."