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.
Horstenmeyer took a bit over a week to realize what direction this was likely headed and voluntarily dismissed his own lawsuit. The EFF wrote a final "...and by the way, you're wrong" letter that's pretty funny to read. Probably the end of this and one hopes a shining beacon of education to other lawyers tempted to call attention to their own failings.
The Libertarian Cato Institute has released a terrific report (PDF link) documenting ways the Digital Millennium Copyright Act hinders innovation.
Why won't iTunes play on Rio MP3 players? Why are viewers forced to sit through previews on some DVDs when they could have fast-forwarded through them on video? Why is it impossible to cut and paste text on Adobe eBook? In a just released study for the Cato Institute, Tim Lee, a policy analyst at the Show-Me Institute, answers these questions and more.
The new legislation’s most profound
effects will be on the evolution of digital media
technologies. We have grown accustomed to,
and benefit from, a high-tech world that is
freewheeling, open-ended, and fiercely competitive.
Silicon Valley is a place where upstarts
like Apple, Netscape, and Google have gone
from two-man operations to billion-dollar
trendsetters seemingly overnight. The DMCA
threatens to undermine that competitive spirit
by giving industry incumbents a powerful
legal weapon against new entrants.
Sound copyright policy has obvious attractions for advocates of small-government and deregulation. Copyright has become more regulatory, and more market-crippling, as it expands, and the DMCA is a case in point. As Lee describes, the DMCA has been (ab)used to prevent competitive development of audio and video players, cable boxes, and even, for a time, printer cartridges. Instead of a free-market rush toward the best technology to meet public demand, we get a trickle of major-label "approved" devices that must be bug-compatible: region-coded DVD players and can't-record cable boxes.
I don't agree with Cato on everything, but this report is spot-on. Let's hope it inspires more in Congress to join Reps. Boucher, Doolittle, and Barton in support of the DMCRA.
We've discussed the definition of "copyfighter" before (IAAC - I Am A Copyfighter and Defining "Copyfighter"). Regardless of the details of the definition, I think we certainly have to add the New York Times Editorial Board to the copyfighter category. For example, here are a few recent editorials from the Times:
These are thorny issues indeed. Freedom of information is at the root of American democracy, and yet every day we see that freedom being compromised, controlled and limited. The Grokster decision is a ruling in favor of keeping our bets open about which technologies will turn out to serve our freedoms best.
It would be better for consumers if Apple began licensing its digital rights management software, only because the iTunes Music Store will not be able to lock up access to all the copyrighted music in the world. But RealNetworks' contention that Apple is stifling freedom of choice is self-serving. You can play music from any CD on an iPod, once it has been digitally copied, and the device works on PC's and Macs.
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.
Congress seems instinctively to side with those who instinctively want to put a chokehold on new technologies. It's always easier, after all, to try to protect what appears to be "an absolute, inviolable set of rights" than it is to find equitable new ground to stand on in the rapidly shifting debate over digital copyright.
Kudos to the NY Times Editorial Board for recognizing the importance of these issues and making their position clear.
The core argument: copyright infringement over peer-to-peer networks is a problem for artists -- but you don't solve that problem by killing technological innovation or sending it overseas.
The fundamental problem I have with P2P is that the creators dont get paid for the distribution of their work, and I don't really buy the arguments that this "free" dissemination encourages people to buy CDs, or that it builds a fan base, or that it promotes their live appearances. The hard numbers really don't bear these contentions out. INDUCE, however, attacks the wrong part of the problem by attempting to stop technology in its tracks. As the VCR proved, the MPAA's position in the Betamax case was shortsighted at best, and the current bill proves they and their allies haven't learned anything in the intervening 20 years.
Rather than figure out how to get paid from the technology, Big Content is supporting INDUCE in order to stop the technology from coming to market. This is just stupid. INDUCE isn't going to stop hardware and software developers outside the U.S. from working on new technology and bringing it to market. It is going to stop U.S. developers from participating in this growth, just as it will stop U.S. manufacturers, distributors, and retailers from achieving any share of the profits to be made, or employing the people who perform these functions, and no one else is going to be paid, either.
I don't always agree with Dave Winer, but in this instance I couldn't agree more. In the last few years I was there, John Palfrey managed to rekindle, and then to build upon, what makes the Berkman Center for Internet & Society more than just another think tank: its commitment to active research. The Internet isn't an object to be studied from afar. You have to dig your hands into the dirt. Once you're there, you can't help but understand that it's something worth fighting for.
A more hopeful model [for cultural theory and criticism] was proposed [in a recent talk] by Siva Vaidhynathan...He outlined the work of a diverse and lively cadre of economists, sociologists, linguists, anthropologists, ethnomusicologists, communications scholars, lawyers, computer scientists, philosophers, librarians, literary scholars, and historians who work together to explore an emerging set of concerns. These include intellectual property, fair use, the impact of legal and computer codes on cultural practices and production, and what he called "semiotic democracy" -- that is, "citizens' ability to employ the signs and symbols ubiquitous in their environments in manners that they determine," such as the right to make meaning from, read, and revise cultural products.
What distinguishes critical information studies from cultural studies is that its practitioners are committed to both open source scholarship and open communication with members of the public. Rather than obfuscating everyday practices by filtering them through veils of theory, they clarify complex technological and legal structures and demonstrate their cultural implications.
This just in: satellite television giant DirecTV has decided at last to stop suing or threatening to sue people for merely possessing smart card devices. Instead, it will pursue lawsuits against only those people it suspects of actually using the devices to illegally intercept the company's satellite signal.
This comes after months of negotiations with folks at EFF and Stanford's CIS Cyberlaw Clinic, who have been working together to help people defend themselves in the face of settlement demands that made it easier to give up than to fight.
"American innovators and hobbyists shouldn't have to fear legal action merely for possessing new technologies that have many legitimate uses," says Copyfight's own Jason Schultz in the official press release. "We're also pleased that DirecTV has agreed to stop targeting general purpose devices in its campaign and will investigate all substantive claims of innocence."
An extraordinary victory. Kudos to the entire DirecTVDefense team. It is moments like this that keep us going.