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.
The indefatigable Michael Geist has posted the slides and audio of his "ACTA 101" talk. This is must-see stuff, covering pretty much everything you need to know about ACTA, the Anti-Counterfeiting Trade Agreement that's being negotiated mostly in secret right about now. (I had some problems with the embedded version - you might need to click through to blip.tv to watch it.)
As Cory says, ACTA "stands to fatally wound all user-generated content sites from mailing lists to YouTube; [...] criminalize kids for noncommercial file-sharing; [and] put your internet connection in jeopardy if anyone in your house is accused of infringement..."
Of course, you'd have to buy all new equipment to comply with this. The straightjacket and compulsory eyes-open technology will no doubt be included, to ensure you're actually watching what and when they want.
Please, take a moment to read over Public Knowledge's suggested comments, make them your own (or write your own) and submit them.
At least that's what the DoJ thinks is fair, according to papers it has filed in the Jammie Thomas punitive damages debacle. Yes, certainly Congress intended low-income students and single moms to be ordered to pay USD 2 million because... um, because something. Well, the DOJ seems to think that huge damages are deterrent. Which we can clearly see from the massive drop in file-sharing that has taken place since Congress passed this law in 1999. File-sharing has gone down in the last decade, right? That's what deterrence means, right?
Today a friend pointed me to a blog entry by Phil Coomes, a picture editor (and photographer in his own right) for the BBC. In this posting Coomes relates several stories of photographers in the UK who have been harrassed or worse for taking pictures of public buildings, of police officers, and so on. It appears that the British photographers and photojournalists have had enough and are forming an organization called, explicitly enough, "I'm a Photographer, Not A Terrorist".
The site invites people to upload their own photos, presumably posed with signs like the ones on the home page. In addition, they provide a "bust card" that people can print out and carry with them. The instructions are specific to the UK and relate to its "Section 44" law that had photographers protesting outside Scotland Yard not too long ago. I would be very interested in seeing examples of similar cards customized for other countries, such as the US and Canada.
(Full disclosure: I'm a hobbyist portrait photographer in the US and though I don't make any money from my photos I'd like not to get arrested for pointing my lens at a policeman somewhere.)
First, I want to acknowlege the comment made in this blog by Christopher, an owner of a small radio station. It's pretty clear that small radio stations are struggling, like many small businesses. The question is whether the bill contains the claimed exemptions for small stations and whether mega-conglomerates like Radio One are also struggling or whether they're simply using people like Christopher as shields.
The FCC is reviewing the complaints against the radio stations that refused to run the ads, and promises there will be a public comment period during the review, but no timeline is mentioned. Meanwhile the Post's article gives a hint of some of the confusion surrounding the issue - Radio One is reporting some revenue gains, but also a signficant drop in ad dollars. They're also claiming that the bill would result in job losses - but isn't that always the claim made when people want more money for things?
Finally, in a moment of amusing irony, I note that among Music First's sponsors are the noted Cartel bright boys, the RIAA. Maybe broadcast radio should have come to the aid of Web radio when the Cartel leaned on them, eh?
The French constitution contains clauses promoting a presumption of innocence and the Council determined that the legislation - which had already passed in Parliament (WAKE UP YOU GUYS YOU'RE BEING OWNED) - violated those clauses as well as infringing on French Constitutional guarantees of free speech.
The legislation already had to be revised once but passed on a second go. Now it's unclear whether the plan will be scrapped or whether Sarkozy will modify the law as the Council described and resubmit it.
In addition to Vikings, reindeer, and cute blonde girls, Sweden can now say it has a Pirate member of the European Parliament. According to Veronica Ek's story for Reuters (here reprinted by the Globe and Mail) about seven percent of the Swedish electorate cast ballots that sent a member of the Pirate Party into office.
The party has been in existence for some time, largely known as a single-issue copyright deregulation group. However, the recent conviction of four operators of The Pirate Bay torrent-linking site has drawn attention to the party and its platform, though the site and the party are not linked. That platform calls for copyright deregulation, abolition of the patent system, and a reduction in Internet surveillance.
To back up a bit: Blizzard makes World of Warcraft the insanely popular online multiplayer fantasy game(*).
MDY makes and sells a program that plays the game automatically (called a "bot," for "robot"). Many players resent bots and botters, and Blizzard has waged war against them for years. However, the bots are popular. Apparently over 100,000 copies of MDY's bot, called Glider, have been sold at $35 a pop.
The question raised in this case, which was just decided in an Arizona court, are whether Glider violates the DMCA by "circumventing protections" as Blizzard claims. It appears that all sides agree that Glider does not decrypt anything, hack anything, nor break any security. It uses the legitimate credentials of the player.
Timothy Lee, at ars technica, calls this "DMCA hairsplitting" and I think he's right. I further think he is correct in pointing out that Judge Campbell has made a decision with some bad implications. This gets a bit detailed, so bear with me...
Campbell drew a distinction between components of the game, thus: the bits stored on disk (called "literal elements") and the bits encountered by the game player during the course of the game (called "non-literal elements"). Part of the World of Warcraft client ensemble is a program called Warden that attempts to control how the client operates and can be accessed while it's running. Campbell decided that Glider did not violate the DMCA with respect to the literal elements, but because it attempted to evade or circumvent detection by Warden while the game was running, it did violate the DMCA with repect to the non-literal bits. Confused yet?
MDY's argument rested on the thesis that these non-literal bits were not protectable by the DMCA because they don't constitute a separate copyrighted work. If that's true it doesn't matter what interaction Glider and Warden have. Campbell rejected MDY's contention that the non-literal bits were too ephemeral, since they could be captured by recording software. That seems reasonable - all kinds of ephemera have been ruled copyrightable for various reasons. More interesting to me is MDY's contention that the ephemera weren't solely Blizzard's work. The ephemera are created in the interaction of the game and its many players.
This is significant as it describes pretty much every "Web 2.0" content-sharing site such as Facebook or LiveJournal. In these sites, too, the named software company provides a vehicle or environment into which users place their content interactively. For example, LiveJournal strongly resembles a blogging system in which individual registered users write postings on which other people add comments. Attempting to apply Campbell's logic to the blogosphere would be troubling at best.
Judge Campbell also agreed with Blizzard that violation of the game's EULA meant that the gamers no longer had a license to play the game. This is extremely troubling in that the logical extension of this reasoning is that any violation of a EULA involves forfeiting your license to that software. I don't know about you, dear reader, but I'm quite certain I've violated more than a few EULAs and am probably in violation of some right now. I don't think that means I give up my licenses to those software programs, nor do I think it means I'm infringing the copyrights of those programs - or at least I don't think it should mean that.
Finally, there's an additional twist in that Cambell ruled that MDY's founder Michael Donnelly, who wrote the Glider bot, was also personally liable for the infringement because he should have known that his and his firm's actions were illegal. Donnelly's good faith argument was rejected.
(*) Your humble author is himself a confessed WoW addict, who has spent more than a few hours battling botters and other in-game cheats. I'm not at all impartial on the topic, just in case you had any illusions.
OK, enough with the funny stuff. The new Obama administration is shaping up to be a disaster for Copyfighters everywhere. In particular the new Department of Justice is stacked with lawyers who've been on the wrong side of copyright and intellectual property lawsuits for the last eight years.
Then there's the #2 man, currently slated to be David Ogden. If that name only rings a faint bell it's because you have to cast your mind back to Eldred v Ashcroft, the argument on whether retroactive copyright term extensions were legal. Sitting over there on Ashcroft's side? That's Mr. Odgen. For extra-bonus ick points, Ogden also was involved in defending the heinous COPA legislation, fortunately now dead and buried (but not forgotten).
The capper on this line-up of suspicious characters is Donald Verrilli, now up for Associate Deputy Attorney General. This specimen of legal acumen is front and center in the Cartel's jihad, having appeared for Viacom when it sued YouTube, for the RIAA against Jammie Thomas, single mother. And if we peer back a little farther, we find Verrilli's dirty fingerprints on MGM v Grokster.
So what does all this portend? Well, if you ask Julian Sanchez over at Portfolio.com he thinks it's a tempest in a teapot. He thinks they'll all behave and recuse themselves properly and just because a lawyer consistently goes to bat for a certain kind of client doesn't mean much about their professional views. Lawyers are paid guns, after all, and the Cartel's side has consistently paid well.
Declan McCullagh, over at CNET, is much less sanguine, pointing out that many of these cases are still ongoing (e.g. big lawsuits against YouTube) and further noting that Vice President Biden showed a great deal of hostility toward free use when he was in the Senate.
I'm on Declan's side. To the extent that someone has to set the tone of this administration in dealing with intellectual property matters, it's looking pretty grim.
Part of the issue is that Davis presides in the Eighth Circuit, a district where the courts have held that "actual distribution" has to occur for a copyright infringement case to proceed. Other jurisdictions have held differently, but for this case (against single mom Jammie Thomas) the RIAA has to abide by that precedent.
The CAFC issued something called a writ of mandamus, a document compelling a government official to perform his duties properly. In this case, the Court took to task Eastern judge John Ward for his refusal to allow a venue transfer for Lear Corp v TS Tech. Lear had sued in the Eastern District, hoping for a favorable venue; TS Tech wanted things moved up to Ohio, which would have been more convenient for them.
Because the CAFC is a superior authority in patent cases, this writ and its supporting arguments can be used by other defendants who feel the Eastern District is too plaintiff-friendly and can bring good arguments for a change of venue. This isn't a pure "get out of jail free" card - suits will still be heard in other venues but clearly there's strong feeling that the merits of particular cases are weighted differently depending on the venue in which it's heard.
I was curious about this because, so far as I know, there are no grounds in US law for rejecting patents on ethical or moral bases. Certainly US defense contractors get patents on all kinds of horrific killing technologies and I believe there was at least one patent on the electric chair.
Unfortunately, the US media are not terribly informative on the background for this latest patent rejection. According to Kevin Grogan's story in PharmaTimes
the EPO already has a ban in place on the patenting of inventions “whose commercial exploitation would be contrary to public order or morality”, and specifically prohibits patents on uses of human embryos “for industrial or commercial purposes”.
Grogan also quotes David Earp, the chief counsel for Geron, a US-based pharma research firm, as claiming that the current decision is more narrowly drawn than the quote above would suggest, and expressing confidence that Geron's other human embryonic stem cell work can be protected in Europe.
In this blog I spend most of my time on the production side of the issues - talking about business models, distribution, artist compensation, and so on. Once in a while it's important to remember that there are also complimentary rights - your right to own materials produced by creators, for private viewing. Making or buying legal copies of creative works is an essential part of the process - all the author rights in the world don't mean jack if nobody can buy what's created. Sometimes we need to remember those rights because they get attacked.
The problem seems to center around images that appear to be young children. It's pretty hard to determine the age of a character in a fiction, unless the author explicitly states it. So the prosecution is based purely on the appearance of an image. Subjective judgement, anyone?
As the parent of two young children, I'm a bit sensitive to the actual use of real children in visually explicit material. I don't think children can consent in any meaningful way, and I don't think they understand the adult implications of explicit or sexual acts. Real people - children and adults - need protection against unscrupulous content producers of any sort who would take advantage of or coerce them.
But that's not what we're talking about here. We're talking about made-up images of purely fictional people. I think it's important to defend the right to own, and the right to view, legally obtained copies of material against overreaching laws.
Bloggers attributed this 'oversight' on the RIAA's part to the presence at Harvard of the Berkman Center for Internet & Society, an organization noted for its outspoken opposition to the Cartel's jihad1. Harvard also hosts a world-class law school, whose students have taken on a number of high profile causes on a pro bono basis over the decades. If your strategy is to deploy enough high-paid legal muscle that your opponents are intimidated into instant surrender then it makes sense to avoid a place with resources like these.
RIAA v. Joel Tenenbaum may become the Cartel's English Channel. As you'd expect, Nesson isn't just trying to defend one student. He's attacking the foundations of the RIAA's entire campaign, as well as the constitutionality of the laws on which it is based. He's filed counterclaims, and is seeking to have the RIAA itself named as a defendant.
Techdirt's write-up on this is dripping with delicious anticipation.Mike Masnick notes that Nesson has a lot of caselaw and is using the RIAA's own words against them. But we're still at the very earliest stages yet. My guess is that the RIAA will drop its case against Tenenbaum and attempt to get the countersuit mooted rather than try to defend on the merits.
1Full disclosure: Corante, the organization that hosts this blog and many others, has had close professional relations with the Berkman Center for many years. I have no personal affiliation with Berkman, nor is there any influence from that organization on this blog.
U.S. Attorney Thomas O'Brien has asked for an injunction that would seize the Mongols' trademarked name. If the order is approved, any Mongol would no longer be able to wear a jacket displaying the gang's name or emblem.
"It would allow law enforcement to seize the leather jackets right off their back," O'Brien said.
I suppose, in the sense that a trademarked logo is a tangible asset with some value, it could be seized in a law enforcement action. But, really, do you want to be the guy assigned to take a biker gang member's jacket off his back?
That name sounded familiar but I hadn't heard it recently, so I went back into the archives and found a Nate Anderson piece on ars, from back in April, that talked about this proposed legislation. Anderson does a good job of summarizing the problem that the bill is trying to solve - if you can't determine the copyright status of a work, what can you do with it? And if you do reuse it, what protection do you have from being submarined?
The idea in this bill is to set up a system of rules that an artist would need to follow; if those rules are followed and a legitimate copyright holder later emerges, the re-using artist can't be sued into oblivion. In effect we get a 'safe harbor' for innocent infringement. The re-user doesn't get free access - he still has to pay license fees to the late-emerging copyright holder. But he would be immunized from large punitive damages.
So, what is causing the Illustrator's Partnership to use such harsh language? They claim that the bill "goes far beyond current concepts of fair use" and "has a disproportionate impact on visual artists." They use further alarmist language about "forc[ing] artists to risk their lives' work" and they go on and on at some length. Are we sure Jack "Boston Strangler" Valenti isn't writing this stuff from beyond the grave?
Rangnath's blog entry also points out how some of the bill's language has changed in direct response to concerns that were expressed when the bill was first introduced. It's just not clear to me why these changes haven't averted the apocalyptic verbiage from some quarters.
OK, I'm in need of help here. Have I got this right?
I got an interesting pointer from a European Copyfight reader indicating that I should take a look at the growing controversy over the European Parliament's proposed new telecoms package. As far as I can tell the source of this controversy is here: http://www.europarl.europa.eu/eplive/expert/shotlist_page/20080708SHL33636/default_en.htm
This is a set of innocuous-sounding proposals to "co-ordinate" and "harmonise" radio spectrum use. It contains high-minded phrases like "safeguard media pluralism." It proposes setting up some kind of overarching governing body (Body of European Regulators in Telecommunications (BERT)). National regulators would have to submit proposed regulations to BERT. Seems pretty simple. That's one side.
The FFII claims to be "largely responsible for the rejection of the EU software patent directive in July 2005" and to speak for over 100,000 members. Their objection to the telecom package seems to revolve around a set of amendments that were (to use a US phrase) back-doored in at the last minute. Apparently, these amendments would permit BERT "to define which are the authorised software applications for the internet." Which is to say, if your preferred app doesn't meet with regulatory approval then you can't run it, your ISP can't provide it to you?
In particular, ISPs currently aren't required to monitor or police content or user identities on their networks, until something specific arises such as an allegation of copyright violation or other illegal activity. ISPs are "mere conduits" under current laws; the new amendments would remove that protection and force ISPs to track or even block individuals' access to the net.
TelecomTV is arguing for the removal of three specific amendments that would force ISPs to act as copyright police. They are also opposed to the spread of something like a "3 Strikes" rule ("Riposte Graduee" in French) that would require ISPs to warn, discipline, and eventually sever users.
This doctrine is presently generating a lot of criticism in France where it was first proposed. Organizations such as "La Quadrature du Net" are calling for a moratorium on new rules related to digital telecoms rights & freedoms. The argument is that the MEP (Members of the European Parliament) didn't really understand what they were voting on, don't grok the net, and need to consider the implications of new regulations more fully before passing them.
I hope I've done this issue some measure of justice. An American point of view isn't necessarily going to translate some of these things well, even though most of the published materials are in English.
In the ongoing saga of Universal Music versus a dancing baby, we have finally gotten a ruling stating that copyright holders must take fair use into account. Timothy Lee's write-up on the decision for ars technica goes through the claims Universal made and notes that the judge either simply ignored them or slapped them down. (Hint to Judge Jeremy Fogel: ignoring the Cartel's willful stupidity may reduce your blood pressure but isn't likely to get them to stop it.)
So what happens now? Well, Stephanie Lenz's suit against Universal is still alive at this point, but there's nothing stopping them from throwing more legal sand in the gears. In theory Lenz and her EFF lawyers can now begin discovery for their case. We'll see how far that goes.
I don't blog much about the minutae of the cascade of digital music-related lawsuits in part because there are people who obsessively blog these things and I've lost patience with it over the years. One place that hasn't lost patience and generally does a very good job with the details is Recording Industry vs The People.
Here's a short list of things the RIAA would like us to believe and have (by and large) gotten judges to agree with:
You are not allowed to make MP3 copies of tracks on CDs you legally own
Placing MP3s into a file directory that might be accessed from outside your computer is equivalent to giving away copies
An IP address is equivalent to a personal identifier
There are more, of course, but let's focus on these for a moment as we've further developments to discuss in Atlantic v. Howell, a case I pointed to in December of last year. At that point, there was contention over whether the Cartel were backtracking on the question of whether CD owners have the right to rip their own CDs.
Well now we a judge rejecting the RIAA's motion for summary judgement in the case. If the judge had bought into the RIAA's premises above the case would've been another slam-dunk win for the Cartel. Instead Judge Wake appears to be ready to change his earlier stance and agree with the defendants (and their EFF counsel) that simply placing copies in a directory is not a "distribution". This is key because if there's no distribution then there's no copyright infringement.
Furthermore, there's a good question to be argued as to whether the defendants are even the ones who put that MP3 file there. Such an issue would be settled by a trial, but the RIAA doesn't want trials. Its jihad is based on filing and rapidly settling thousands of these lawsuits. Having them go to trial would prove time-consuming, risky, and expensive even if the Cartel won.
For a large variety of reasons, the Cartel can't afford to wage this war in the court trial dockets. It needs to be conducted in the mass, scalable fashion whereby the threat of the judiciary is used to extort payment from consumers... err, victims... err, named defendants.
Despite the amount of time this case has already dragged out, it's still in the very early stages. As Eric Bangeman pointed out in his ars technica story on the denial, Judge Wake's reasoning is at odds with other judges' decisions on similar issues. For the great majority of cases, the RIAA is being successful in its jihad. My guess is that they'll argue this case a little further to see if Judge Wake can be swayed back. If he continues to rule against them, they'll drop the case before it goes to trial - they have no incentive to get an actual verdict on the books against them and an appeal would be even more expensive. So long as the tide continues to run in their favor, the Cartel can keep going even if it has to drop a case now and then. To truly kick the legs out from under them would require an act of Congress or a decision by a much higher-level court. Neither will happen soon.
The basic question is whether or not the lexicon itself is a protected fair use creation or whether its printing should be enjoined as copyright infringement. Or, as Rowling called it, "wholesale theft."
Rowling's arguments seemed to be laced with emotional appeal and what strikes me, frankly, as shenanigans. She's so upset about the book that she had to fly personally to New York to testify, even though the judge offered to accept written testimony. The book has also "decimated [her] creative work" even though she gave the Lexicon Web site an award in 2004. And, somehow, the publication of this book is going to stop her project of doing her own lexicon, as if her fans wouldn't buy every single work she published. Did you know she was just about to give away all the proceeds from her lexicon to charity? News to me. Hey, Rowling, how about you take some of that $9 billion in book sales and donate it instead?
Mind you, I'm not convinced she's not right - the Lexicon book may well be infringing. I just dislike cheesy appeals to emotion. Think of the children! Puh-leeze. None of this is really germane to the question of whether or not the Lexicon is a transformative reference work, in which case it ought to be protected. Fortunately there's no jury to be swayed in this trial - let's hope Judge Patterson sticks to reasoning from the facts.
There's no magic here - he just did a lot of drudge work, digging up prior art, and some fundraising work, getting his blog readers to donate the USD 2,520 fee required to file the challenge. Yesterday the patent office issued a 17-page "reexamination document." This document does not comment on the original patent - it simply judges the validity of the patent's claims against the submitted prior art. That judgment found that two of the patent's main claims were not invalidated by the prior art, and that allowed three dependent claims to escape as well. The rest of the claims are disallowed.
Interestingly it appears that the invalidating evidence was not just public-domain literature, but actual issued US patents. Which means that both Amazon and the PTO did shoddy jobs searching through the patent database. Greg Aharonian of PATNEWS and others have been claiming for years that PTO searching is a joke when it comes to software patents - compare the prior art listings on your average biotech patent with that on a software patent. Stories like this can only add credibility to those accusations.
Aharonian adds a bit of detail
The PTO relied on two patents provided as prior art (which the PTO had been unable to find on its own): 5819034 (a one button ordering process for interactive TV) and 5729594 (online financial transactions with BUY button). Also used was a Newsweek article, and a prior Amazon patent.
It seems likely Amazon will appeal, as this can affect not only their settlement with B&N but also any ongoing licensing arrangements.
The RIAA has been handed a huge victory in its first-ever jury trial. Jammie Thomas is now on the hook for USD 220,000 at the going rate of 9,250 for each of 24 songs. The jury, according to Sandoval's CNET piece, didn't seem to care that she hadn't actually been proven to have shared the files.
This money and other monies extorted from customers is "reinvested" in the jihad. As Eric Bangeman reported for Ars earlier this week, that campaign is a big money pit. I'm totally unsurprised by this, having guessed as much many months ago. Bangeman thinks it's a 'bombshell" that the Cartel isn't making any money off of this and really has no idea how much money it's losing (if any) to file sharing. I think it's totally unshocking and the fact that they'd admit it in open court is just a measure of how confident they are.
So what we're left with is a potential appeal or possibly the Cartel offering to settle for a few pennies on the dollar. They're not getting a quarter-million from a single mom and they know it. But they never really expected to - what they want to do is punish, inspire fear, and intimidate. I'd say they won on all those counts.
Meanwhile, file sharing continues unabated. You don't change peoples' attitudes and behavior through punishment, fear, and intimidation on anything less than a governmental level, and maybe not even then.
For years now the Cartel have played it coy on the issue of whether they think it's legal for people to make personal copies of music you bought. Certainly the naive reading of the laws on personal backups and the like would encourage people to think they can make private backup copies of their own CDs. The alternative is that you ought to buy a copy of the CD for each car, computer room player, and boombox. And don't forget to buy another copy for every digital music player you want to download for, though most of the online stores explicitly let you use a tune on multiple players.
The Cartel has tried to have it both ways for years. You may remember that in MGM v Grokster, the RIAA agreed that it was OK to copy your own CDs, then promptly backtracked on that position in the Feb 2006 DMCA rule-making process.
This week we have Jennifer Pariser, the head of litigation for Sony BMG, testifying in Capitol Records, et al v. Jammie Thomas uttering this bit of... um, let's just agree to call it 'self-serving bullshit':
When an individual makes a copy of a song for himself, I suppose we can say he stole a song.
Eric Bangeman's piece for ars on the case, linked above, highlights what may be an interesting point, if the trial judge lets the defense pursue it: the RIAA is... oh, I need another phrase here, let's use "lying through its rotten teeth" about ownership of copyrights in the music it's suing people for sharing.
Ars has been publishing stories for much of the last few months pointing out that the Cartel has gotten sloppy and overreaching in these suits. Mostly they get by because nobody can afford to fight them in court and risk a big loss. But if there''s a dirty underside here, maybe we'll see a single mother from Brainerd, Minnesota, expose it.
The first one is probably good news for all digital-music listeners, as it concerns patents on MP3 compression technology. Judge Rudi Brewster threw out a jury verdict and the associated USD 1.5 billion award against Microsoft. The loser here is Alcatel-Lucent, the plaintiff, who claimed that Microsoft had violated its patents; Microsoft claimed it had licensed the patents. Alcatel-Lucent plan to appeal; the judge plans to order a new trial on the second disputed patent. According to Eric Bangeman's note on ars technica, had the award stood the plaintiffs might have had a case to go against basically anyone else who makes a digital audio player.
Meanwhile, in the "not with a bang, but a whimper" department, Microsoft asked for a 30-day postponement in the start of trial proceedings in its long-running dispute with Eolas. As you may recall, Eolas sued nearly eight years ago on the basis of a 1998 patent it claimed covered browser plug-in technology. Fast-forward to 2003 when - contrary to the incessant Internet punditry about obviousness and prior art - the verdict came down about half a billion against Microsoft. Oops.
Of course technology doesn't stand still - IE6 came out and used a different plug-in technology than the ActiveX controls Eolas claimed were infringing. Microsoft has also been fighting this on the legal front, including instituting a separate challenge to ownership of the patent. Based on the US's first-to-invent patent standard, different from other countries' first-to-file standard, it may be possible for Microsoft to show it invented the technology covered in the Eolas patent in which case it would be given ownership of the patent.
Or they could just settle, like I said they would back in 2004. What concerns me is not that settlement but what will follow and whether this patent will be wielded against other browser manufacturers. Props again to Eric Bangeman, whose link-rich summary on ars technica helped remind me of the timeline in this case.
MercExchange has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market share, reputation, good will, or name recognition, as MercExchange appears to possess none of these.
The difference between using a patent as a sword (to stop someone from doing something) versus as a shield (to protect something you're doing yourself) is often glossed over in discussion of the value of patents. In my opinion it's a fundamental distinction and I'm glad to see it getting recognition.
Over on art technica, Eric Bangeman has a nice writeup including a bit of the back-history (this case goes back over 10 years) and some other choice and cutting verbiage from the judge directed against MercExchange and how it has behaved in this case.
I guess we'll find out next week which Webcasters are hosted outside the US and thus potentially able to escape this crash-and-burn. The Internet Radio Equality Act of 2007 is still alive and slowly wending its way through Congress but there's no hope it will arrive in time to save the present landscape from clear-cutting.
Back in 2001, the US Supreme Court issued a decision in a case called New York Times v. Tasini. In this decision the Court ruled on rights of freelance photographers such as Tasini to control or be compensated for works (photos) that were sold for one purpose, such as print, and ended up in an archive later to be used for another purpose such as CD ROM publication.
Now of course the Times wasn't the only entity doing that. Prominently the National Geographic published a CD ROM archive and promptly got itself sued by several people who felt their works had been used in unauthorized and/or uncompensated ways. Because of the locations of these suits a couple ended up being settled in different US Circuits. For this discussion consider the Second and Sixth Circuits
In a 2001 decision known colloquially as Greenberg I (formally as Greenberg v. National Geographic Society I, 244F.3d1267) a panel of the Sixth ruled in favor of photographer Greenberg, holding that the Geographic's archive violated his rights. However, the Second had ruled the opposite way in other cases against the Geographic, basically saying that what the magazine had done was legal and no further compensation was due.
In the normal course of things rulings at the Circuit level stand, even when they're in conflict, until SCOTUS issues an opinion that resolves the differences. In fact, conflicting Circuit opinions are a major factor in the decision to grant review of cases that are appealed to SCOTUS. It's also possible for a full Circuit court to reverse one of its own panels, potentially resolving the difference. The Sixth has not done so, possibly because the judge who wrote the Greenberg I opinion is regarded as something of an expert on copyright law. So far so good.
Now comes the curious case: earlier this month in an opinion informally called Greenberg II (formally Greenberg v. National Geographic Society II, 97-03924-CV) a different panel of the Sixth reversed the earlier panel, pretty much to everyone's surprise. "Curious" is polite lawyerspeak for what you and I might dub "WTF"? WTFF?
First off, the new panel of the Sixth includes a visiting judge from the Second, who wrote the new decision. That's a bit odd.
Second, the rules of the game as it's generally played are that one panel of a Circuit is bound to abide by (and certainly not overtly reverse) previous panels' opinions unless the full Circuit or SCOTUS has something to say on the matter.
Which brings us back around to Tasini. According to McDonald's column (I haven't read the original opinions) the new panel claims to be relying on SCOTUS's reasoning in the Tasini case. If they're right, that case gives them grounds to overturn Greenberg I. But here's where it gets more curious. McDonald quotes several intellectual property lawyers as saying that Tasini really isn't on point here. It's dealing with a separate set of facts. And to make matters even more curious the judge in Greenberg II appears to be relying not on the formal decision of Tasini itself but on explanatory comments (called 'dicta') that the Greenberg II judge feels give "tacit approval" to deciding the case in favor of Geographic.
So what happens now? Well, Greenberg could throw in the towel. It's six years on and he hasn't seen a dime - a 2004 judgement of $400,000 led to the appeal that was decided in Greenberg II. I hate to think how big his legal bills are by now. If he soldiers on there's an obvious appeal to an en banc Sixth and who knows how that will turn out. If it goes against Geographic it seems likely they'd ask SCOTUS for a ruling that would presumably clarify the disparate Circuit views. However, the Court denied certiorari on Greenberg I so they might not take this one, either.
The implications of this are potentially staggering and the order has been stayed pending appeal. Part of the complaint here is that this ruling would force defendants to create documents they would otherwise never have. That alone is unprecendented, to my knowledge. Additionally the implications for the use of all kinds of digital services are huge. Imagine applying this kind of logic to VoIP RAM traffic - who needs to bother with all that complicated paperwork for getting a wiretap?
Much of the concern is over the privacy implications. Many services, from FedEx and AmEx to Internet registrars offer the ability to do business transactions without revealing personal information. Entire businesses exist purely to act as trusted third parties so that people can be confident and confidential at the same time. If this ruling is upheld all that goes into the dumpster.
And while there are some standards to prevent discovery proceedings from turning into open-ended fishing expeditions, those standards are much looser and less subject to review than requests for subpoenas and other current legal methods of obtaining information in an adversarial proceeding. Creating this weapon of mass discovery would have the side effect of weakening all of those protections.
(In an interesting aside, the CNET story notes that the USD 2 billion figure of losses from online activity is merely an MPAA estimate, not the 'fact' that the LA Times story made it out to be. Shame on the Times for shoddiness - maybe they can take lessons from CNET.)
Ars Technica is reporting that the US Copyright Board has extended by two months the date on which its new regressive (and retroactive) fee schedule is to go into effect. The new date is July 15, 2007. So maybe there is time for Congress to act. This is not a lot of time, but in theory the Internet Radio Equality Act could be passed and signed in these two months, restoring a flat-fee structure that is compatible with the non-profit segment of Web radio.
As before I urge my US readers to contact their Representatives to sponsor and push for quick passage of this bill. You non-US folks can sit back and laugh at we fools and the fools that govern us.
Proposed legislation - the Internet Radio Equality Act - would roll back the Copyright Board's regressive new fee structure, giving us back the flat-fee revenue-based method that has let the industry grow this far. The proposal is for a flat 7.5% of revenue through 2010.
The bill appears to be largely the result of a successful Internet campaign that, according to the CNN story linked above, has generated over 400,000 emailed complaints to Congress about the new fees. That's a good number both in terms of its impact on this discussion and in terms of showing that Internet radio is developing a significant, motivated, audience.
Unfortunately, the bill doesn't solve anything in the immediate future. Even if it passes and is signed quickly its implementation is still months away. Something like a court order would be needed to stay the implementation of the new CRB fees in about two weeks, an event that will likely cause most non-big-commercial Web radio to go dark, even if only for a while. That could be significantly harmful and might be enough to kill much of the alternative streaming community in the US regardless of what Congress does.
Today's update on Radio Paradise has several links people can use, including an online petition and links people can use to look up the names and numbers of their Congresscritters.
For quite a while, digital (Web) radio has had to pay significantly higher performance royalty rates than analog broadcast services. In effect, analog radio gets for free what Web radio pays through the nose to stream. That has hampered the growth of the industry and stifled any number of free, independent and likely new creative Web radio initiatives. But it gets worse.
On March 1 of this year, the Board issued new rates and decided to base those rates on a "per play" computation scheme championed by (wait for it...) the RIAA. The computation itself is based off an assumption of mass audience and significant commercial revenue. If you're a big Clearchannel station the assumptions behind this new fee schedule make total sense.
What can we do? I'm honestly not sure. I know that ratepayers affected by the Copyright Board's decision have a time period to appeal. RP asked for people to blog about it, digg it, make the public aware, and so I'm doing that. I don't see any obvious mechanism under which the Copyright Office is collecting citizen comments - perhaps a message from Congress is required?
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.
A friend has asked a question to which I don't have an aswer. To wit: "What constitutes infringement against a design (not utility) patent in the Web space?"
Does anyone have examples of cases being brought against Web design patents?
The source of this question, of course, is the recent award of a design patent for search results, to Google. That is Design Patent No. 533,561 which appears to be patenting the design of incorporating non-traditional search results (news stories, product links) into a search results page. CNET gave me this PDF link to supporting drawings for the patent and all the images show a header section above the list of results.
So without getting into the specific merits/demerits of this patent it's hard for me to say what, in general, constitutes infringement on a design patent within the Web space.
In a possibly related bit of patent irony, Google also announced this week the Beta of a patent search site. The USPTO's search is a bit arcane but even as a layman I've found it useful. Has anyone compared the two, yet?
Ars Technica is blurbing a BBC story that pre-leaks some results from the UK's Gowers Review. This review is actually a commission set up to suggest reforms to the UK's Intellectual Property laws. One of the big issues before the review is the length of copyrights for sound recordings. Currently that's 50 years, but there have been pushes for longer terms such as 95 years or life-plus-70.
The pushes have come from big names, including the U2's Bono and the British Library, but if the leak is true then it appears Gowers will reject these proposals. What that would mean is that the first of the Beatles' music would enter the public domain in the UK in 2012 or thereabouts. It would not be public domain in the US because of recent term extensions here (the so-called Mickey Mouse law) and part of the push on UK laws has been to "harmonize" them with the US laws.
As Nate Anderson points out in the Ars piece, "harmonization" has been a remarkably one-way process in the past, with the nod always going to the more restrictive set of rules. Thus, Bono et al might have been hoping for a Parliamentary Sgt Pepper act to extend ther monopolies. They may get it anyway, since Gowers is a recommending body, not a legislating one. Or maybe the public domain will win one.
Oh, yes, friends, the case is dragging into its third year and not only is it dragging, there's no likelihood of a trial on the facts any time soon. As near as I can make out, both sides have buried the judge in motion requests, each of which has to be considered on its merits and ruled on by the judge before anything else can happen.
One of the motions filed by IBM was a request for summary judgement - essentially saying "Judge, this is crap so please just tell them to go away." It is my sense from talking to various legal people that judges are usually extremely reluctant to issue summary judgements. If nothing else, a judge tends to feel that even a far-fetched case deserves a hearing and to be fair it may be that new things emerge at trial, or the threat of an actual public trial may force parties to settle or compromise. Not to mention that any summary judgement in a high-stakes case is itself going to be appealed and may put the judge him- or herself under scrutiny.
So if IBM wants to win this motion it really has to deploy extremely convincing evidence in support of the motion. Naively speaking they'd have to show that their case against SCO is a slam-dunk or that SCO's claims are utterly without merit.
Which brings us back around to the blog posting. Since the trial documents are not public (and may never be) we have at best a redacted version of IBM's supporting document (linked at http://www.zensden.net/misc/IBM-838-1.pdf and http://www.zensden.net/misc/IBM-838-2.pdf). There appear to be five reasons IBM is willing to argue why SCO's claims should be dismissed.
1. No Code, No Crime. SCO has yet to produce any evidence to support their claim that IBM copied protected code into Linux. In addition, IBM argues that SCO hasn't produced evidence to show what rights it has in the particular code it claims IBM copied.
2. Got License. IBM argues that its various licensing deals permit it to use the code. The judge may also be swayed by the argument that some of those licenses came from SCO's predecessor companies or organizations in which they were members. Caldera's actions in respect to that same code under the GPL may also be relevant.
3. Promissory Estoppal. IANAL and I don't pretend I can explain this concept in general, but it appears that IBM is claiming SCO's legal predecessor (Caldera) encouraged and endorsed use of the code. SCO can't go back on that.
4. No Copyrightable Code. IP Wars admits that there's a lot of relevant context in the material not in the public domain, but what appears to be happening here is that IBM is claiming the particular lines of code identified as contentious are themselves a functional entity and not expressive in the manner that would invoke copyright protection. This is not a position statement from IBM on the copyrightability of code in general, but rather an argument that SCO is picking-and-choosing particular statements (e.g. function prototypes) that don't _do_ anything. There's a technical point here about whether the code lines constitute part of an international standard and/or an API definition in which case IBM may be drawing on previous case law that has ruled such interfaces are not copyrightable.
5. Copyright Misuse. IBM appears to be claiming that SCO is trying to enforce copyright law in ways not permitted. IP-Wars claims that "the penalty enforced by federal courts for overreaching copyright claims is forfeiture in the instance." So if this is true and the court finds that SCO overreached itself, the court might dismiss the entire case on these grounds alone.
Now with all that said it's important to remember that SCO will be submitting material arguing the other side and it's possible they'll find persuasive counter-arguments to each of IBM's points. Or maybe the judge will chuck this entire mess in the trashbin where it belongs.
How do I know this? Well, I don't. I can only infer it from the fact that the Department of Homeland Security is picking up people at the border for apparently nation-threatening involvement in T shirt copyright infringement. No, seriously.
Courtesy of Bruce Schneier's CRYPTO-GRAM, I was pointed to this gem, titled "Terrorist in a bootleg T-shirt". According to the piece's author, he was detained and questioned on entry into the US not on account of his time in the middle east, nor on account of his extensive phoning back and forth while in Pakistan. Instead, he apparently upset someone by selling Boston Celtics' sportswear without a license in Boston in 2003.
My fellow Americans, this is our tax dollars at work. The author has some pretty nasty words for Homeland Security, too.
Tim Berners-Lee has an extensive blog entry (with Real video) about the importance of Net neutrality. One of the things I like about his blog entry is that it contains a simple formulation of what's wrong with Net bias. EFF and others have been making esoteric arguments about what might happen, or what-if favoritism scenarios in the world of Net bias. What Tim B-L says, that bears repeating until the Congresscritters get it.
Net Neutrality means that if I pay for a certain level of service and you pay for a certain level of service, then we get to communicate with each other at that level.
Depends on whom you ask, of course. SIRA, a House effort to reform copyright licensing, is drawing the ire of a lot of folk, ranging from the EFF and consumer-advocacy groups to commercial vendors such as BellSouth. On the other side, entities such as the RIAA and music publishers want changes to an old approach that requires separate licensing for song recordings. Their goal is a "blanket license" that they claim is required to speed up copyright approvals for large amounts of music at once.
That seems like a laudable goal - nobody is claiming that the US system of managing copyrights is simple. The problem is in what each side wants to consider a "performance" and what is a "recording." And which category do transient copies (such as caches) fall into? The bill's opponents claim that the current language will put digital recordings into BOTH categories, forcing double license payments.
Although the bill has been okayed by a House panel there's still a long road ahead and I expect to see more on this topic before Congress recesses this session.
And of course there's the pernicious notion that people would be required to pay (usually by increased prices at retail) for time-shifted viewings, PVR recordings, and other personal-use copying that is currently allowed under fair use exemptions.
Invoking the terrorist bogeyman, our latest Gruppenfuhrer has apparently secretly informed ISPs and maybe search engines that they are required (by what law, one wonders) to retain all records of user activity for two years. Initially, this push for universal net surveillance was draped in the cloak of "protecting the children." That's always a convenient hook on which to hang intrusions because, hey, who's going to stand up and say they're in favor of more rights for child molesters? But that's just a ruse, a shell game. This kind of regulation has nothing to do with kiddie porn. It has to do with this government's insatiable hunger for spying on its own people.
Apparently, even China doesn't retain this much information on its citizens but this is the YEW-ESS-AYE and we have to do everything bigger here than anywhere else. So when we screw up it can be a screwup of truly monumental proportions.
Now excuse me, there's someone knocking on my door - I'll just go see who it is...
Peter Kaplan has a Reuters story (here on the Washington Post) covering the Supreme Court decision in the eBay/MercExchange patent battle. As Kaplan paints it, the SCOTUS decision comes out rejecting a bunch of things decided by lower courts.
For one thing, MercExchange lost its injunction. The lower court now has to reconsider the injunction request, but on different grounds. For another thing, the Justices rejected a lower court's notion that there is a general right by patent holders to injunctions against infringers. Finally, they appear to have soundly rejected the US District Court's opinion that failure to use a patent (by manufacture or license) is grounds for losing the injunction right. I don't think that SCOTUS expressely addressed the notion of "patent trolls" but Kaplan points to a concurring opinion signed by four Justices that expresses sympathy with the concerns of companies - particularly in high tech - that feel they are being held hostage by patent holders who have no function other than to sue everyone in sight.
Nolo, the "law for everyone" people, have updated several of their how-to guides for non-lawyers dealing with the US intellectual property system. Updated information is available on:
- Getting a patent (possibly without a lawyer)
- How much copying is OK under "fair use" rules?
or, why you should never bet on the same horse as I do. I had pretty much given up Apple Computer's trademark suit as a lost cause. It seemed naively clear that Apple Corps Ltd. had the right when it came to use of the Apple name in the music arena. However, the Judge in the case was willing to accept Apple Computer's distinction between "Apple-the-music-store" and "Apple-the-music-sold-by-the-store" and so ruled in favor of the downloading empire.
It appears that Apple Corps will appeal, but for the moment the end result is "no change" for the music business.
Paul Alan Levy of the Public Citizen Litigation Group sent out a letter pointing his readers to an ongoing debate in Editor & Publisher on the topic of HR 683, the "Trademark Dilution Revision Act." Levy has, for some time, been trying to draw attention to provisions in this bill that will strip the defense of noncommercial use from defendants in trademark infringement cases.
Part of the point made by Levy is that people are commenting without reading the original bill, which I haven't done, so I'll refrain from adding my own commentary here. If you can wade through it and want to add something I'd appreciate that.
Ebay and MercExchange got their day at SCOTUS this week and much coverage seems to be along the lines of Jessica Holzer's jibe in Forbes at companies like Merc as being "patent trolls." The gist of this argument - advanced by large tech companies - is that lower court judges ought to have lots of latitude in dealing with situations where patents are found to be infringed. In particular, automatic injunctions are a scary proposition for these big tech companies.
This theory holds (as was originally judged in the Merc vs Ebay case) that if the patent holder isn't actually using the patent, or being harmed by its use, then the proper remedy is some kind of compensation while the infringer continues on about his business. Deep pockets companies like this - they can pay. However, it weakens the positions of patent holders who can no longer use a threatened shutdown to extract the best possible terms. So far so good.
However, the 800 lb gorilla in the room is not really the tech industry, which is riddled with crappy patents. The gorilla, which is pretty damned proud of its patent quality, is bio-pharma. These companies, particularly the drug companies and biotech research houses, see patents as their absolute protection. They base entire company strategies on the principles of exclusive license to market and produce. Permitting an infringer to pay to make copies of a new drug or genetic product would potentially be devastating.
In my book this is still more evidence that computer software and processes need a new and different form of intellectual property protection. Neither copyright nor patent seems right and working (in the sense of 'producing results we want').
Copyfight friend Branko Collin pointed me to an entry in the blog of Adam Curry, which reports on a copyright victory for Curry. The self-described "local media celebrity" had published photos on Flickr of himself and children on vacation. The photos carried a CC "Attribution-Noncommercial-Sharealike license" but were taken and reprinted by a Dutch gossip magazine. Curry sued and the judge in the Amsterdam District Court upheld the validity of the Creative Commons license, forbidding the magazine from using such photos without permission.
Matz's ruling agreed with Perfect 10 on one aspect of its claims, that thumbnail images used by Google Image Search are copyright violations. The judge declined to issue an injunction based on Perfect 10's other claim, which is that Google was responsible for providing links to third-party Web sites that, themselves, host images illegally copied from Perfect 10. So linking was OK, but caching was not.
And therein lies the rub. Caching is used in a number of Internet technologies, including proxy servers, media services such as Akami, server farm and load balancing applications, and of course all search engines and services that run Web spiders. Matz is clearly trying to tread a line that both allows Google's indexing business and respects Perfect 10's copyrights. The problem is that I don't think there is any such line to be walked. Either what Google does is fair use and Perfect 10 can go away, or it isn't and we will have to fundamentally rethink Web search and indexing.
Or maybe their memories are as faulty as their DRM systems.
As noted in EFF's Deep Links, the RIAA have submitted a comment filing as part of the DMCA rule-making process. In this comment we find the claim that it is not fair use for you to copy your own CDs to your own iPod. Problem? Well, aside from being an absurd claim rejected by tens of millions of consumers, it's also directly contradictory to what these same folk argued in front of SCOTUS during the MGM v Grokster case.
Deep Links has the pointers both to the filing and to the PDF of the oral argument transcripts, as well as the snarky and on-point comment that the RIAA's characterization of personal copies as being "pretty legal" seems to mean "legal until we say otherwise."
(I had meant to post this prior to posting Peter Cassidy's response; apologies for the order-reversal.)
Generally, the law assumes that people control images of themselves. There are some exceptions, such as for public figures, crowd shots, public places, events of public interest, and so on. But I've always thought that the principle in US and most Western law systems is that you get to say "That picture is me" and exert some control over it.
Except that photos aren't just intellectual property. Among other things they're means of identification. Passports, for example, contain photos and there are some restrictions on what counts as a legitimate (legal) passport photo in the US. Even if you follow the law you may not be in the clear. A friend of mine recently traveled to Puerto Rico and had some serious hassles with US Customs for failing to look like her passport photo, including the memorable line "Well, you shouldn't have cut your hair." No, really.
Over in the UK, they've been accepting digital photographs of citizens for identification cards. However, people don't necessarily take the best digital photos and, according to The Reg story, the UK Passport Service is starting to wrestle with the maleability of the digital image.
The sequence apparently goes something like this - you take a digital pic that you think is you and submit it as a passport pic. It gets rejected. So you pop it into Photoshop or your favorite equivalent and touch it up a bit. Apparently, this is now frowned upon. So one is left to wonder precisely which photo-enhancing operations are legal, illegal, and which make a "you" image "not you" or vice versa.
I'm no photo wizard, but I regularly touch up digital shots for myself and friends - fixing light and color balances, sharpening features, blurring out unwanted intrusions into the frame, removing redeye. It's all still pictures of them, right? Maybe, maybe not. And if it's not a picture of that person any longer, who has what rights to the image's use?
Texas' Attorney General has filed suit against Sony for violations of that state's anti-spyware laws, as well as consumer protection charges. The suit is civil in nature, rather than criminal, asking for up to USD 100,000 per violation.
I've been writing for some time about the way in which the Cartel has gone about controlling the language used in the Copyright Wars - and why I use terms like "cartel" in response. This suit has the potential to seroiusly shift the language-scape. If the consumer zeitgeist begins to see "DRM" and "spyware" as synonymous terms, there could be trouble that far exceeds the tar pit Sony seems to be sinking into.
Grokster's death will likely spur several more rounds of frustratingly recursive debate over how to resolve the P2P infringement dilemma. Which is why, if you're new to the debate, you ought to skip on over to Freedom to Tinker and A Copyfighter's Musings, thereby advancing immediately to square two.
At Freedom to Tinker, Princeton professor Edward Felten writes:
Arguments about the [RIAA] lawsuits often get bogged down in confusion over exactly which argument the lawsuit opponents are making. There are three types of anti-lawsuit arguments.
A moral argument against lawsuits says that bringing the lawsuits is morally wrong.
A pragmatic argument against lawsuits says that bringing the lawsuits isn’t the most clever strategy for a self-interested RIAA to follow.
An empirical argument against lawsuits says that the lawsuits are not reducing infringement.
Why are these distinctions important? Because they carry different obligations. "If you believe a pragmatic argument, then you must believe there is something more clever the RIAA can do; and you should tell us what that is," writes Felten. "But if you’re making a moral argument or an empirical argument, then you have no obligation to describe a better plan, because you’re not asserting that there is a better plan."
Indeed, you may even legitimately believe that no better plan exists. Explains Felten:
This is a common fallacy in policy analysis: assuming that whenever there is a problem, the solution must be some kind of bold new action. Sometimes bold action is just what’s needed. But sometimes bold action doesn’t solve the problem. Sometimes it only causes new problems. Sometimes your problem has no solution and your best course is to suck it up and figure out how to live with the problem.
This is where A Copyfighter's Musings come in. You see, some people believe that while no perfect solution exists, there's a better way forward than perpetual lawsuits (or, for that matter, perpetual arguing over perpetual lawsuits). Derek Slater, who's been carving out middle ground in this debate for quite some time now, attended the recent P2P Litigation Summit and has a few thoughts to share about where we've been and where we're headed. Dr. Urs Gasser, a fellow Berkmanite, has a succinct description of what you'll hear if you tune in:
In the first piece, Derek reports about the P2P litigation summit he participated in, arguing that we have to learn more about -- and from! -- the stories of the people that got sued by the recording industry. In the second podcast, Derek provides a big-picture analysis of possible (technological, business, and policy) approaches to the file-sharing problem. In essence, he makes a strong case why policy-makers should not take drastic measures (such as, e.g., compulsory licensing systems or, as the worst-case scenario, mandatory DRM schemes) to address the current digital media crises. Rather, policy-makers may be well advised to trust in the evolutionary power of market mechanisms on the one hand (emerging business models, in fact, might address the problem) and to focus on the reform of the DMCA and certain procedural protection measures on the other hand.
"Procedural protection measures" is a cold term, but they're exactly the opposite: they're aimed at protecting the innocent people caught in the crossfire of this battle. Even if you support the litigation campaign, you can also wholeheartedly support doing it right. Fairly.* And, as Tim Lee urges, you can also give serious thought and energy to considering what happens when, "a decade and 100,000 lawsuits from now," P2P is more popular than ever.
"The United States Supreme Court unanimously confirmed that using this service to trade copyrighted material is illegal." That's what the Grokster Web page says today as the result of a just-announced settlement. (Here are pertinent Google News and Technorati searches.) That's not, however, what the Supreme Court said... the language you now see on the Grokster home page was unquestionably scripted by the settling plaintiffs as PR -- without scrupulous regard to an accurate reading of the Grokster decision.
I've been particularly disturbed by the impact that a technology mandate would have on hobbyists and tinkerers. Right now, I can (and have) built an open-source personal video recorder -- imagine a TiVo on steroids -- to record and playback HDTV. I'm not redistributing television indiscriminately over the Internet, I just like being able to pause live TV or move recorded shows to my Treo to watch at the gym. If the broadcast flag were implemented, I wouldn't be able to buy replacement parts for that machine; even those building commercial TiVos would need to impose government-approved restrictions. [Link & emphasis added.]
Adds Wendy @ Legal Tags: "The question that left Dan Glickman cold came from Rep. Meehan, asking about the compulsory licensing of technology standards: (paraphrase) Do you think tech companies should have to surrender their intellectual property to protect yours?"
Update: Frank Field @ Furdlog: "Jesus H. Christ! This is what I get for being away from this for a couple of weeks...I am sure that proponents will point to this language as supporting innovation:
Section 101. No person shall
[…]
(b) manufacture, import, offer to the public, provide or otherwise traffic in any
technology, product, service, device, component, or part thereof, that —
[…]
(2) has only limited commercially significant purpose or use other than to modify or cause an analog video input device to no longer conform to the requirements set forth in subsection (a); or
Of course, any novel application is not going to have more than 'limited commercially significant purpose or use' until it gets disseminated and understood (c.f., TiVo). As written now, without the funds to implement VEIL, a firm looking to develop a new application (or, God forbid, an open source application!) would be formally restricted."
Yep, that's three horrors -- one for each profoundly misguided government technology mandate that the RIAA and MPAA are pushing, hard:
On Thursday, November 3rd, the heads of the MPAA and RIAA presented to the House Subcommittee on the Courts, the Internet, and Intellectual Property their plans for the future of digital technology.
For high-definition television (HDTV), the MPAA demands every receiver must have, and obey, the broadcast flag. For new radio technologies, you'll be restricted to recording radio shows for a minimum of 30 minutes, for a maximum of 50 hours. And all analog to digital video conversions will be forced to watch for, and obey, a concealed copy restriction mark.
If any one of these provisions pass, it would be a disaster for you and for innovation.
There'll be no room for open source software here. All of these devices must be "robust" -- welded shut to prevent alteration by their owners.
There'll be no room for innovation without the say-so of Hollywood. And there'll be no fair use copying without breaking the law.
James Boyle, contemplating the birth, 15 years ago, of the first web page: "What would a web designed by the World Intellectual Property Organisation or the Disney Corporation have looked like? It would have looked more like pay-television, or Minitel, the French computer network. Beforehand, the logic of control always makes sense. 'Allow anyone to connect to the network? Anyone to decide what content to put up? That is a recipe for piracy and pornography.' And of course it is. But it is also much, much more."
Only Danny O'Brien can make reading about the undead, relentlessly stalking broadcast flag and its terrifying brethren...fun. Too bad the threat of multiple technology mandates is so very un-fun.
Halloween is traditionally the time when the undead walk; preposterous monstrosities that no one could imagine living stumble and moan through the land.
So guess what the entertainment industry decided to dust off for an extra spooky session with the House Judiciary Committee on Thursday?
But that's not spooky enough for the MPAA. For their party trick this year, they want to take one of the most basic and ubiquitous components in multimedia, and encase it within a pile of legally enforced, complex, and patented proprietary technology -- forever.
Ladies and gentlemen, the MPAA have chosen Halloween week to resurrect their most misconceived monster ever: the Thing from the Analog Hole.
Feel free to flick through this new Halloween document [PDF]: it's a legislative draft proposed by the MPAA for a hearing of the House Subcommittee on Courts, the Internet, and Intellectual Property, on the topic "Content Protection in the Digital Age: The Broadcast Flag, High-Definition Radio, and the Analog Hole," on November 3rd.
Keep the torches handy. Cory promises that we'll soon have more information about who on Capitol hill supports this latest Very Bad Idea.
Update: Via the Pho list, a few more details on the MPAA's Halloween surprise: the spot where you can watch the live webcast of the hearing, plus the witness list:
Dan Glickman, Chairman and Chief Executive Officer, Motion Picture Association of America (MPAA)
Mitch Bainwol, Chairman and Chief Executive Officer, Recording Industry Association of America (RIAA)
Gigi B. Sohn, President, Public Knowledge
Michael D. Petricone, Vice President, Government Affairs, Consumer Electronics Association (CEA) on behalf of CEA and the Home Recording Rights Coalition
A friend pointed me to a story in last week's NYTimes on the FBI's latest move to extend its reach (maybe it was feeling outdone by the Cartel?). The current scheme is to force libraries, universities, wireless providers in airports and ISPs to do expensive upgrades. Why? So that the FBI can tap your communications better, of course. Universities are threatening to band together in a lawsuit over what they say is the USD7 billion pricetag for this upgrade.
Pushing CALEA out still farther isn't likely to do anything more to catch crooks and terrorists, but since when has efficient use of time and resources been a requirement at DoJ. The ultimate payees, of course, will be the citizens, since the costs of these forced upgrades are inevitably going to be passed on to consumers in the form of higher tuition, additional fees, increased access charges and the like.
Earlier this month, the CAFC rejected RIM's request for an en banc hearing of its appeal. As I noted back in August, a CAFC panel held against RIM, upholding most of the patent infringement claims. RIM is asking for a stay while it appeals to SCOTUS. RIM's jurisdictional theory has already been rejected at district and appellate levels. My guess is that SCOTUS will refuse to take the case and RIM will finally have to get into serious settlement talks with NTP. They'll pay something, but Blackberry will continue to function.
Earlier this week I wrote about how, despite claims to the contrary, DRM Is Not a Contract in which you "agree" to give up all of your fair use rights for the dubious privilege of becoming a hapless pawn in the digital media wars. Now Derek Slater has a thoughtful follow-up explaining that Hacking Is Not Fair Use -- or, to be more precise, that if you oppose reforming the DMCA to allow people to circumvent DRM to make lawful uses of digital media, you can't pretend you're doing anything but opposing lawful uses.
Writes Derek:
[Patrick Ross's article] reveals why many DMCA supporters truly laud the law - not because it prevents widespread infringing file-sharing (it doesn't), but rather because it drastically shrinks fair use. ...Here's the key passage from Patrick's article:
"But if HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider." (emphasis added)
Of course, fair use is codified. It's just not a set of bright line rules, and that's probably for the best. That's how we get innovation like time-shifting or GooglePrint - who could have predicted such uses ahead of time, distinguished them from related but unlawful uses, and clearly protected them in the statute?
Regardless, just because fair use is unclear doesn't mean that it permits everything. HR1201 only permits circumvention for lawful uses; if a claim of fair use were unfounded, consumers would still be liable.
In other words, HR1201 is about permitting fair use, not "hacking," piracy, or anything else.
So why should Ross and other DMCA supporters want to restrict lawful uses? Because restricting lawful use can be rewarding. You can't sell back fair uses of digital media unless you first take them away.
Derek has more, including a link to previous post that subtly encourages DMCA supporters to come clean. Rational people can agree that the DMCA is a failure [PDF] at preventing mass copyright infringement on the Internet -- its ostensible purpose. So what is it "good" for? And is it possible to have an honest discussion about that?
Danny O'Brien has another update on the relentless Capitol Hill machinations to force through the Broadcast Flag. It helpfully unravels two mysteries:
Question #1: Why did 20 representatives send an open letter pledging their allegiance to the Flag? Hint: it wasn't due to an overwhelming groundswell of support from their constituents.
Question #2: Why did PFF's Patrick Ross suddenly take it upon himself to argue, unconvincingly, that the DMCA is somehow about ...the freedom to contract? Hint: it wasn't because he just, you know, wanted to express himself.
Answer #1: Why did those 20 reps send an open letter? Because the Broadcast Flag isn't a slam dunk. As Danny points out, the entertainment industry lobbyists are tallying their support, but they haven't yet convinced everyone they need to convince:
The letter is short, with a single substantive talking point. If Congress doesn't deliver a Broadcast Flag pronto, warns the letter, content producers will abandon free, over-the-air broadcast TV.
To pound home this dire threat, the phrase "free, over-the-air television" is repeated no fewer than eight times -- with four repetitions in four consecutive sentences. It's a little like the local racketeer rustling up extra protection money by emphasizing over and over how beautiful your precious Ming vase is, and what a tragedy it would be if anything were to happen to it.
But no matter how many times this threat is repeated, it's not even close to credible. The corporations that make up the MPAA have been threatening to boycott digital TV for years, without ever actually managing to stop broadcasting. Of course, Mr. Upton doesn't really need convincing, anyway. He's already gone on record as supporting the Broadcast Flag.
So why are 20 House representatives writing him a public letter? Because Mr. Upton is the one who needs a show of support.
You see, it appears that the MPAA and RIAA may have a problem with the House of Representatives.
Which brings us to Answer #2: Why did Patrick Ross suddenly write a piece passionately defending the DMCA? Because the "problem" is Congressman Joe Barton:
The driver of digital TV legislation in the House is Joe Barton, Chairman of the Commerce Committee. And if what we hear through beltway back channels is true, Barton wants a deal. He believes that if the MPAA wants the Broadcast Flag in his bill so badly, it should be willing to compromise.
Specifically, in exchange for movement on the Broadcast Flag, Congressman Barton may be asking for movement on HR 1201 -- a bill that seeks to protect people who are excercising their fair-use rights from liability under the DMCA.
In other words, if government-mandated DRM + the DMCA remove your rights, Congressman Barton wants a way for you to take them back. Which Patrick Ross tells us is bad because it infringes upon...the freedom of corporations to impose a unilateral "contract." Which would clearly harm consumers, because they would otherwise benefit from continued "innovation" in the booming removing-consumer-choice sector.
Today I got a surprise telephone call - I mean a real surprise - from Heather Riley in Senator Saxby Chambliss' office. On Wednesday I sent an e-mail to my Congressman and both Senators regarding the Broadcast Flag issue I saw on Copy Fight...Heather called to tell me that Senator Chambliss received my e-mail, that they are aware of the Broadcast Flag amendment in a reconciliation bill coming up for consideration, and that the Senator will try to have the amendment removed when they take up the bill after recess. According to Heather the Senator agrees with consumers - this bill needs to be debated on its own merit, not slipped in under the radar attached to some unrelated matter.
Thank you Senator Chambliss. I routinely complain about my representatives voting for big business and against consumers. It's nice to be surprised.
Do you agree that the Broadcast Flag ought to be considered on its own merits, rather than rammed through as part of another piece of legislation with no hearings or debate? Here are two spots where you can say so:
Parliament passed a bill to amend Finnish copyright legislation on Wednesday. The measure was approved by an overwhelming 121 votes to 34...The most controversial aspect of the law is that it makes it illegal to make any copies of a recording with copy protection, even for home use.
The Australian High Court today brings us refreshing copyright sanity.
It ruled for the mod-chippers in Stevens v. Sony, the case in which Sony was suing under Australia's anti-circumvention laws to stop people from modifying the Sony PlayStation to play cheaper overseas versions of games. Specifically, it found that:
[The] true construction of the definition of "technological protection measure" must be one which catches devices which prevent infringement. The Sony device does not prevent infringement. Nor do many of the devices falling within the definition advanced by Sony. The Sony device and devices like it prevent access only after any infringement has taken place...[In] construing a definition which focuses on a device designed to prevent or inhibit the infringement of copyright, it is important to avoid an overbroad construction which would extend the copyright monopoly rather than match it.
If I'm interpreting correctly (and that's a big "if"), the Court has essentially said, "If you're not using a technological protection measure to stop copyright infringement, you don't deserve protection under copyright law. We will not uphold your 'right' to use technological protection measures to protect anything but copyright."
In other words, the Court refuses to turn an appropriately limited monopoly right (copyright) into an unlimited "ubercopyright."
[Measures] like those used by Sony are about controlling use of and access to Sony PlayStation consoles. Sony controls all kinds of things about the way people use Sony consoles. For example: they control whether people can:
play legitimately purchased games sold in overseas markets;
play games created by someone other than Sony on the Sony console (something that cannot be done on a non-chipped console owing to the absence of an access code).
So while Sony can argue that it wanted to prevent piracy (it clearly did), and that the measures acted in part to deter piracy (they clearly could), Sony's own approach to the measures muddies the waters. It doesn't just act to prevent infringement, and that point is taken notice of by the Court here. One can't help but suspect the legal reasoning would look different, in this case, if Sony only used its power over the console to actually prevent use of 'pirated' disks.
Here's PK's sample letter to the members of the two committees that will consider Broadcast Flag legislation:
I write to you today to ask you to oppose any "broadcast flag" or "radio protection" legislation offered in response to the recent U.S. Appeals Court decision striking down the Flag Order issued by the Federal Communication Commission (FCC). These protection schemes will hurt me as a consumer: not just by harming how I like to use my consumer electronics and computers, but harming my choice of new and affordable products in the market place.
As a consumer, I want you to be aware of the following points:
* This Legislation is Broad: There is no "narrow" way to implement the broadcast flag scheme because it necessarily puts the FCC in the role of gatekeeper, having to approve and certify every technology that might carry DTV - computers, cellphones, gameboys, etc. Drafts of the language is broad so as to give the FCC permission to do both the broadcast flag and radio protection. As proof of the broad scope of the flag, when petitioned to exempt lawful uses of digital television, the FCC declined saying "practical and legal difficulties of determining which types of broadcast content merit protection from indiscriminate redistribution and which do not."
* Causes Consumer Confusion, Will Slow DTV Transition, and Probably Halt Digital Radio Rollout: At a time when Congress is concerned about making television sets obsolete at the end of the DTV transition, the flag would similarly render obsolete much consumer equipment because commonly used devices will not work together unless all use the same copy protection technology. The broadcast flag will not help the transition to DTV, and indeed might harm it because it makes consumers' TVs less functional than before. Digital radio protection is aimed at being intrusive and restraining inside a consumers own home.
* Limits Fair Use: As the May 11, 2005 Congressional Research Service report noted, the flag will prevent important fair uses, like the ability of teachers to engage in distance learning and the ability of individuals to email fair use portions of works to themselves and others. Making excerpts for public criticism of television media is critical, yet it will be severely limited as a result of this legislation.
Lastly, the flag will also hinder educational use of copyrighted content, and will stifle the design, operation, and further development of innovative consumer electronics. To me, this legislation is a bad idea, especially if Congress were to pass it with zero public debate. I urge you to oppose any broadcast flag legislation.
One more point for open-source programmers and enthusiasts: government technology mandates are especially bad news for open source. Your software is "non-robust," in Broadcast Flag terminology. It won't take orders from the top. That means it could turn out to be more useful and attractive to the market than the "consensus" devices everyone else is agreeing to hobble. That ruins the Broadcast Flag's "well-mannered marketplace." Which means your software is going down.
As PK says, you know the drill. Two minutes out of your day can make a real difference. If you don't think so, read this post. And please, send your letter today.
What's another word for "Cartel?" How about "racket?" How about "organized criminal conspiracy?"
That's the charge made by Tanya Andersen, the latest addition to the anti-RIAA supermoms club. Ms. Andersen, a disabled single mom, decided not to roll over and play dead when the Cartel came knocking. Instead, she's gone on the offensive, filing a counter-suit charging the RIAA and the recording industry with Oregon RICO violations, fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, the tort of "outrage", and deceptive business practices.
I don't know where Ms Andersen will get the legal muscle to pursue this raft of charges (she's currently being represented by Lory Lybeck of Lybeck Murphy in Oregon) but if she can make even one of them stick it could be a significant victory against the Cartel's anti-consumer jihad. What she's claiming is that the Cartel is (ab)using the legal system to get peoples' personal information, purely for the purpose of turning this information over to its collection center. She's further claiming that the Cartel's collection agency (err... "Settlement Center") admits to mistakes but won't halt collections even in cases of error. She's claiming that the Cartel intruded on her computer in violation of the law. She's claiming her innocence and asserting that because the Cartel continued its collection activities in the absence of any evidence of wrongdoing that its behavior is "coercive and deceptive."
There's much more detail over on the P2Pnet site. My guess is that the Cartel will do its damnedest to prevent this ever getting in front of a judge and jury. If Andersen can somehow survive long enough and the judge appears unfriendly, the Cartel will offer a settlement and may even promise to reform some of is more egregious abuses. As long as it's not backed up by an actual court judgement they'll feel free to ignore any such promised reforms.
Note to RIAA: quit picking on moms. They're way tougher than you are.
Thanks to Declan McCullagh's latest CNET piece on the currentpush for the deeply unpopular Broadcast Flag, here's a list of 20 policymakers who want to give the FCC the power to issue mandatory design blueprints for any device capable of receiving free over-the-air high-definition TV signals, regardless of the impact on consumer rights and technological innovation:
Charles Pickering, R-Miss.
Edolphus Towns, D-N.Y.
John Shimkus, R-Ill.
George Radanovich, R-Calif.
Mike Ferguson, R-N.J.
Marsha Blackburn, R-Tenn.
Bart Gordon, D-Tenn.
Mary Bono, R-Calif.
Lee Terry, R-Neb.
Ed Whitfield, R-Kt.
Bobby Rush, D-N.J.
Vito Fossella, R-N.Y.
John Shadegg, R-Ariz.
Eliot Engel, D-N.Y.
Albert Wynn, D-Md.
Michael Doyle, D-Penn.
Charles Gonzalez, D-Tex.
Charles Bass, R-N.H.
John Sullivan, R-Okla.
Frank Pallone, D-N.J.
Is your representative on the list? If so, here's where you can send a letter speaking your mind about his or her decision to support the Broadcast Flag.
Thanks to commenter Walter Oaknight I was led to a nice layman-language analysis of the current state of the fight over Eolas' Web patent. The unbylined column in ClientServerNews notes a couple of new things, not least of which is that some of the language in the '906 patent review may give Microsoft an out. That is, the patent language may in fact be valid (novel, not covered by prior art, etc.) but may cover things different from what Eolas says it covers.
However, even if this particular patent is evaded, the column points to another broader patent portfolio that may cover the core technology of displaying inline active content. I'm also concerned that one or more of these patents might be close enough to torpedo AJAX, which I think is the most interesting new tech paradigm to emerge on the Web in some time.
EFF has just published a half-time report from the WIPO meetings in Geneva, including a summary and analysis of the developments we've been puzzling over here @ Copyfight:
EFF returned to Geneva this week for the WIPO General Assembly, a two-week marathon meeting where last year's progress is reviewed and future plans are hatched laid. While there are dozens of items on the agenda, we're tracking two very closely: the future of WIPO's work vis-a-vis the developing world (a.k.a. the Development Agenda) and a proposal to turn broadcasters into a new class of copyright holders (a.k.a. the WIPO Broadcasting Treaty). Both are currently moving in the right direction.
Canadian Recording Industry Association (CRIA) President Graham Henderson, in a Hollywood Reporter piece on the group's support for "tighter" copyright law because it will stop teens from illegal downloading: "We want the Canadian legislation to look like American and European legislation, because it's working there."
I suppose that's right, if by "working," you mean, "not working."
Writes Michael Geist:"Perhaps the most telling response [to the CRIA media campaign] came at the Bill C-60 Open Forum yesterday. The CRIA release was mentioned by one of the speakers. The entire audience from all sides of the copyright debate just laughed."
Just in time for government hearings on the proposal for copyright reform in Canada, uber-copyfighter Michael Geist has announced publication of In the Public Interest: The Future of Canadian Copyright Law -- a 600-page peer-reviewed book that covers every aspect of the current bill from a public-interest perspective, including essays from 19 copyright experts on future issues such as user rights, copyright term, and crown copyright. But that's not all. Writes Geist:
[The] publisher (Irwin Law) has published the book under a Creative Commons license so the entire book can be downloaded for free. This marks a first for a major Canadian publisher and we've agreed to donate any royalties back to CC.
Additional details are available @ Professor Geist's website, where he writes, "As we embark on a debate on the future of Canadian copyright, we need to hear from our own experts in their voice. This book moves us in that direction. Buy it or download it, but most of all read it."
CPT's Jamie Love has rough notes from the debate at WIPO over whether to hold a fast-track diplomatic conference to create new "middleman rights" on top of copyright for companies that merely pass content from the creator to your desktop. Predictably, the US delegation is champing at the bit: "US pleased to support prompt [diplomatic conference]. Timely and appropriate. Urgent 2006 DC." But Thiru Balasubramaniam reports that there has been enough push-back that consensus was not reached. I'm not as well-versed in WIPO-speak as I'd like to be, but it seems to me that this means delegates may have more time to evaluate whether and/or when to hold the conference.
Another bright note: "Jamie Boyle's article in yesterday's FT was widely circulated and read, and it had a big impact."
Edward Felten, proposing a "Pizzaright Principle" litmus test for determining whether or not expansionist proposals to create new intellectual property rights make sense:
Lately, lots of bogus arguments for copyright expansion have been floating around. A handy detector for bogus arguments is the Pizzaright Principle.
[...]
Suppose that Bob argues that the profitability of broadcasting may be about to decrease, so broadcasters should be given new intellectual property rights. He could equally well argue that if the pizza business has become less profitable, a pizzaright should be created.
(The flaw in Bob's argument was the failure to show that the new right furthers the interests of society as a whole, as opposed to the narrow interests of the broadcasters or pizzamakers.)
We are deeply troubled in the nature of the proposed property right. It is not based upon creativity. It is not based upon invention. It is a claim that the investment in transmitting information should create a 50 year exclusive right to content, far longer than the term of protection for databases in Europe, and more than 10 times the term of protection for test data for pharmaceutical clinical trials in the United States. This right is on top of the copyright in copyrighted work, and applies even to works in the public domain under copyright laws.
[...]
We don't give book publishers a layer of rights on top of copyright. We don't give the post office a layer of rights for delivering mail. We don't give taxi cab drivers a right to control the use of documents that are transported by passengers in their cars. Why do we decide to give broadcasters a right of 50 years?
James Love and Manon Ress of the Consumer Project on Technology are circulating an open letter asking the leadership of the House and Senate to block US support for a fast-track diplomatic conference on this controversial treaty until there has been analysis of its potential impact; you can learn more and sign the letter here.
The Broadcasting and Webcasting Treaty, currently being debated in Geneva, is an IP hat trick.
Much of what is broadcast over the airwaves is copyrighted – the broadcaster licenses the film or song from a copyright holder and then plays it to you at home. What you probably do not know is that nearly 50 years ago broadcasters in some countries got an additional right, layered on top of the copyright. Even if the material being broadcast was in the public domain, or the copyright holder had no objection to redistribution, the broadcaster was given a legal right to prevent it – a 20-year period of exclusivity. The ostensible reason was to encourage broadcasters to invest in new networks. The US did not sign this treaty. Has the US broadcast industry stagnated, crippled by the possibility that their signals will be pirated? Hardly. Copyright works well and no additional right has proved necessary. Has WIPO commissioned empirical studies to see if the right was necessary, comparing those nations that adopted it with those that did not? Of course not. This is intellectual property policy: we do not need facts. We can create monopolies on faith.
But now a new diplomatic conference is being convened to reopen the issue. Doubtless the goal is to abolish this right? There was never any empirical evidence behind it. Broadcasters in countries that did not adopt it have flourished, albeit casting envious eyes to the legal monopolies possessed by their counterparts in more credulous nations whose politicians are more deeply in the pockets of broadcasting interests. The right imposes considerable costs. It adds yet another layer of clearances that must be gained before material can be digitised or redistributed – compounding the existing problems of “orphan works”, those whose owners cannot be identified. So is the broadcast right on the way out? No.
In the funhouse world that is intellectual property policy, WIPO is considering a proposal to expand the length of the right by 30 years and a US-backed initiative to apply it to webcasts as well. After all, we know that the internet is growing so slowly. Clearly what is needed is an entirely new legal monopoly, on top of copyright, so that there are even more middlemen, even deeper thickets of rights.
In related news, here's the story of a similar scenario playing out on Capitol Hill. Specifically, the MPAA and RIAA are moving to sneak Broadcast Flag-like provisions in a reconciliations bill -- the better to avoid any public debate or protest:
One especially sneaky way to get an amendment passed is to smuggle it into a reconciliations bill. Reconciliation is the mirror image of appropriations. Appropriations is about taxes; reconciliation is all about making cuts. Because Congress dearly loves to appear thrifty, reconciliations has special fast-track status. It can't be filibustered, it's almost impossible to amend once agreed upon, and it only needs a plain majority to pass.
[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.]
As I noted below, one of the most troubling aspects of this new set of rights is that they would create a mechanism by which anyone can gain control over the distribution and use of freely licensed material and/or works that have fallen into the public domain. You feed any combination of sound and images through a web server, and suddenly, people must deal with you. If the material is already under copyright, they must negotiate with the copyright holder -- and, oh yes, also with you. For 50 years. Meanwhile, there has been no real analysis or public debate about the impact this would have on...well, just about anyone it will affect.
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.
Negotiators are moving full-steam ahead, and there may be movement on this as soon as next week. CPTech has already petitioned the Library of Congress and US Patent and Trademark Office to slow down and invite the public into the process, but Congress may be more effective at calling on US negotiators for a time-out. I hope so.
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.
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.
[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.
For more on why a Broadcast Flag-style regime for digital radio is a bad idea, check out Public Knowledge President Gigi Sohn's opinion piece from last spring, Say No to a Radio Broadcast Flag.
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.
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."
In other words, it's not cool to make copyright infringement sound cool.
KaZaA has announced that it will appeal the ruling.
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.
Yes, Lexmark is the company that already tried and failed to control the printer cartridge after-market using the Digital Millennium Copyright Act (DMCA). Contract and patent law are clearly proving more amenable. The question is, how will the ruling impact the way companies do business in the future? Asks Fred:
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"?
Obviously, we can't know yet. But the danger is there.
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:
Michael Madison: EULA Developments: "In the contracts arena, consumer advocates won the UCITA battle but are losing the ProCD war. (And they're losing it on the authority of the patent law experts at the Federal Circuit!) What remains of a meaningful 'assent' requirement is slowly, but surely, disappearing altogether."
Mark McKenna: Blizzard and Arizona Cartridge: "I'm not sure I agree that, as a general rule, it would be okay to contract away all the protection of copyright law as long as consumers clearly understood that."
Lauren Gelman: The Problem of Online Contracts: "But this wouldn't really be an issue except for the fact that companies are purposely making contracts difficult to find and read to bind users to terms they ordinarily would disagree with...What is the appropriate scope of online contracts? Should the fact that we know that users don't read them (or can't understand them) inform the scope of what we allow the contracts to bind?"
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 prohibits 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.
There's a formal inquiry on the issue, with comments due by October 7, 2005 -- just over a month away.
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:
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.
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.
[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."
In other words, the government not only wants service providers to make your private communications easily open to government surveillance, it also wants the providers -- and therefore you, the customer -- to pay for it.
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.
The two posts are worth the read in full, especially for those curious about the legal paths available to people like Lynn who have information they believe they must share with the public:
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.
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.
Public Knowledge has been taking the initiative, post-Brand X, on getting people up-to-speed on why they should support network neutrality. For much more on the issues at stake, check out PK's Broadband Policy page.
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:
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").
I expect ZDNet should be getting a cease-and-desist order any day now, and Copyfight can expect one not long thereafter, because once it's illegal to write about it, how long can irresponsible criminals like myself be allowed to discuss news stories about ISPs that host sites that have links to sites that... oh, never mind.
Am I the only one who thinks this is absurd? By the way, the original target of this ire is mp3s4free, which appears to be either severely slashdotted or actually down at the moment. The court order as reported by ZDNet was for the defendants to pay court costs, not for a site shutdown nor payment of fines/penalties.
Back in November of last year I noted a court case in which saved Web pages from the Internet Archive (informally the Wayback Machine) was used as evidence. At the time I expressed surprise at the judge's ready acceptance of the evidence and noted that this is an extremely murky and untried legal area.
Now, if the report in the NJ Star Ledger is correct, we may see some litigation of a few of the issues raised by an archive of this sort and its involvement in copyright and court proceedings.
As best I understand it, what seems to be happening is the operators of the Wayback Machine are themselves being sued. Geist pointed to a Geocities page for a copy of the actual complaint, but it was 404 when I went to look.
What Kevin Coughlin's story says is that Healthcare Advocates is suing Wayback because the operators of Wayback failed to block access to certain archived materials during a 2003 trade secrets dispute. According to the complaint, the opposing counsel at the time obtained pages from the Wayback Machine. One issue is how those pages were obtained - did they come from normal searching or from some kind of "hacking?"
Another issue is the copyrights of the pages - if the pages were copyrighted by Healthcare Advocates, then what was Wayback doing with copies of them in the first place? And why was it serving up copies of material it didn't own the copyrights to? And were opposing counsel engaged in knowingly obtaining by extra-judicial means material they knew was supposed to be protected by IP laws? And does the Internet Archive have responsibility in part due to what it apparently admits were broken "blocking procedures"? (My instinctive guess is that their spider wasn't properly obeying robot exclusion directives.)
Kurt Opsahl, staff attorney for the EFF, is quoted as opining that the doctrine of fair use generally allows the gathering of copyrighted materials as evidence in trade secret cases. In which case, the whole thing may get chucked out quickly and no legal precedents will emerge. But I remain convinced that this is the barest tip of a huge legal iceberg that is going to crash into the business of search engines and other 'net archives, soon. Maybe not this specific case, but the issues I pointed to last year still remain completely unresolved and in the absence of guiding legislation parties wishing to establish principles have little choice except to litigate their claims and hope for good precedents.
So here's the ad I spotted on a billboard the day after the Grokster ruling. Induce-a-licious, is it not? The tune is (nudge, nudge, wink, wink) "Bad Apple." But of course, JBL and Apple get to be "bad," and we're fear mongerers if wesuggest that other companies may not fare as well.
The European Commission has been reviewing various ideas for collective management of digital intellectual property rights across the EU. The current situation is a total mess, with each of the EU's 25 members having varying rules and regulations. Licensing a single work for use across Europe becomes a trial for even the most honest and dedicated.
Now, as MarketWatch reports, the EU is looking to take a first step towards sorting out the mess by proposing a single rights sytem for online music. If this gets implemented, one immediate beneficiary should be musicians, who would only have to register (and pay) once to get a copyright instead of going through the process 25 times. Another obvious beneficiary would be online music services, which would have a single source they can go to when they want to license music for use or for offer on their services.
Big news. As reported by the BBC, the European Parliament has voted down the Computer-Implemented Inventions Directive, a law that would have given broad authority to the European Patent Office to start issuing US-style software patents in the EU. Rejection of this law is a huge, huge victory for innovation.
In particular, it's great to see the European Parliament realize that while software patents can spur some incremental innovation amongst coders, they often also inhibit wide adoption of new technologies, entry of start-ups into new markets, and the essential lifeblood of any network -- interoperability of programs and data. Kudos to the MEPs for standing strong on this issue in the wake of intense pressure to maximize patent protection at the expense of competition and universal access to knowledge. Kudos also to FFII, FSF, and all the other organizations that worked so hard to shed light on the true effects this misguided law could have.
A caveat: This vote doesn't outlaw software patents in the EU; it just doesn't officially sanction them. The European Patent Office will now have to decide on its own how to handle these issues, which should be interesting. Over the years, the EPO has granted some but not all software patents applied for, and has tended to do so on a haphazard basis. Hopefully, with such a resounding vote, it will curtail most if not all such grants. We'll see.
The Economist calls the Grokster decision the "best available balance under current laws" between the claims of media and technology firms, but argues that in light of the ruling, copyright holders' monopoly grant should be scaled back from forever minus a day to the original 14 years:
Copyright was originally intended to encourage publication by granting publishers a temporary monopoly on works so they could earn a return on their investment. But the internet and new digital technologies have made the publication and distribution of works much easier and cheaper. Publishers should therefore need fewer, not more, property rights to protect their investment. Technology has tipped the balance in favour of the public domain.
A first, useful step would be a drastic reduction of copyright back to its original terms—14 years, renewable once. This should provide media firms plenty of chance to earn profits, and consumers plenty of opportunity to rip, mix, burn their back catalogues without breaking the law. The Supreme Court has somewhat reluctantly clipped the wings of copyright pirates; it is time for Congress to do the same to the copyright incumbents.
I missed it Wednesday, but Marty Schwimmer has one of his great, deceptively simple posts that rewards the ponder: Test Your Skills Post-Grokster:
Client is computer and software vendor. It wishes to introduce its new computer featuring a CD-RW drive and MP3 management software with the advertising slogan: "Rip, Mix, Burn Your Own Custom Music CDs."
Client is a consumer electronics manufacturer. It invents a video recording device. It wishes to say in its advertising that its product allows the user to 'build a library' of his or her favorite shows.
Clients ask you if the advertising actively induces infringement.
The always eloquent James Boyle continues his call for evidence-based, rather than faith-based, intellectual property policy in a Financial Times column on the proposed Software Patents Directive in Europe:
In the absence of further evidence, sound bites prevail. Proponents of the directive are left claiming that "stronger rights will mean more innovation." Opponents quote Bill Gates' 1991 words about the expansion of software patentability in the US: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today."
There is, however, a very impressive empirical literature of the expansion of patentability on the US software industry that some European policy makers seem to have missed.
For example, Professor James Bessen and Robert Hunt of the Federal Reserve Bank found that the increase in the level of software patenting in the US was associated with a significant decline in investment in research and development by software companies. As more and more patents were granted, companies spent less on R&D. Correlation does not prove causation, as the authors appropriately caution. Nevertheless their conclusions are clear about the assumption that granting stronger property rights in software will stimulate innovation. "Our evidence suggests this assumption may be incorrect in the case of software patents. If, instead, the legal changes create patent thickets, the result might well be less innovation."
Another scenario where we need to see much more evidence and much less posturing: WIPO meetings.
Many people have been speculating lately that BitTorrent could be the next "'ster" -- that is, a technology under Grokster where the people responsible could be interpreted as inducing infringement. The potential smoking gun: a parody techno-activist's manifesto written by Bram Cohen in 1999. Ernie Miller, who's been all over the story, has the latest:
Today, Bram has added the following text to his agenda:
[This was written in late 1999, and is a parody of a cypherpunk's manifesto, which struck me as very dishonest manifesto claiming to solely be concerned about privacy. This screed is written in the exaggerated voice of a 'prototypical' cypherpunk, making much more direct declarations of his intent.] [emphasis, links in original]
Good answer. Hopefully it'll be enough to convince a judge should a lawsuit be launched.
Pretty scary.
More, from Katie Dean and Kevin Poulsen @ Wired, here.
If you're choking on data smog in the aftermath of this morning's ruling in Grokster, Eric Goldman has a pleasingly short, readable round-up of blog commentary. Yes, there's more to come, but this makes for a pleasant breather.
It's not About P2P: It's still not about P2P. Whether or not today's ruling unleashes new litigation against innovators, it will have no effect on the tens of millions of Americans who continue to use P2P file-sharing software, nor will it deter off-shore programmers living beyond the reach of US copyright laws. Hilary Rosen is right: giving music fans a compelling legitimate alternative, whether through collective licensing or simply competing with free, is the only solution.
No Matter What, We've Won: There is reason to celebrate in today's ruling. It could have been much worse. As many have noted, the Court rejected many of the more extreme positions that the entertainment industry argued for in the courts below. As discussed below, the Court left intact several important legal bulwarks for innovators. While the Court didn't shore them up, it also didn't tear them down.
Main Event #1: Sony Betamax. The Supreme Court left the Betamax defense intact by essentially refusing to say anything about it, although the sniping between the two concurrences suggests that a future battle may be coming. Neither side can declare total victory on this score and future cases are probably inevitable (especially where well-advised companies use today's decision as a roadmap for avoiding any hint of inducement).
Main Event #2: Vicarious Liability. The Court chose to punt on this issue, choosing to base its decision on inducement instead of addressing the entertainment industry's "you could have designed it differently" theory of vicarious liability. The Court's exposition of inducement, however, suggests that it would be hostile to any theory that imposed a free-floating obligation to redesign (without any evidence of inducement) on technologists. That's good news.
Main Event #3: Inducement. The Court conjured a new form of indirect copyright liability, importing inducement from patent law. Lawyers will be reading the tea leaves here for years to come, trying to divine the precise boundaries of this new form of copyright liability (and, contrary to what the patent lawyers will tell you, patent precedents don't resolve all the questions). The opinion suggests that copyright plaintiffs must show some overt act of inducement; the design and distribution (along with the usual incidents of distribution) of a product, by itself, are not enough. But the Court's opinion may lead lower courts to conclude that once you find an overt act, however small, virtually everything else becomes relevant to divine your "intent." That would be a bonanza for entertainment lawyers eager to foist huge legal costs on defendants. Reminiscent, in some ways, of the securities class actions that have bedeviled high tech companies for years.
More about the details of the Court's inducement theory soon.
Ernie Miller provides notes from the MPAA/RIAA press conference on the Grokster ruling: "What the court is doing is setting a commonsense standard. If you're Apple, you're fine. If you're Grokster and StreamCast, it is clear from any number of things that they are inducing, you're not going to be fine. We don't think it will be difficult to determine what is an illegitimate or legitimate business."
Cardozo law professor Susan Crawford, in a post entitled, "A Balanced View":
Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.
Professor Crawford argues that Grokster was a "balanced" opinion. In the sense that Grokster pretty much leaves Sony alone, I agree. In the sense that technology itself can continue to advance—it's just business plans that misuse technology that are suspect—I agree.
I don't agree, though, that the end result is "balanced," or that Aimster establishes a "formless balancing text." I think what the Court did here was largely to evade the Sony test's theoretical foundation with two limiting devices.
Seth Finkelstein, in the comments below: "It's not so much 'balanced' so much as 'buffeted by conflicting forces' -- not at all the same thing! :-) "
EFF has now issued a press release on the ruling; here, the meat:
Today the Supreme Court issued a ruling that could impede makers of all kinds of technologies with expensive lawsuits. The long-awaited decision in MGM v. Grokster states that P2P software manufacturers can be held liable for the infringing activities of people who use their software. This decision relies on a new theory of copyright liability that measures whether manufacturers created their wares with the "intent" of inducing consumers to infringe. It means that inventors and entrepreneurs will not only bear the costs of bringing new products to market, but also the costs of lawsuits if consumers start using their products for illegal purposes.
"Today the Supreme Court has unleashed a new era of legal uncertainty on America's innovators," said Fred von Lohmann, EFF's senior intellectual property attorney. "The newly announced inducement theory of copyright liability will fuel a new generation of entertainment industry lawsuits against technology companies. Perhaps more important, the threat of legal costs may lead technology companies to modify their products to please Hollywood instead of consumers."
The Supreme Court has also ordered the lower court to consider whether peer-to-peer companies Grokster and StreamCast can be held liable under the new standard. StreamCast is confident that it will pass muster under the new, multi-pronged test.
Ernie Miller, blogging in tripletime, has notes from this morning's press conference with members of the Grokster and StreamCast defense teams & amici, many of whom admit they are still digesting the opinon. A common theme: relief that the Sony Betamax standard lives -- and disappointment that it's not clarified.
Ernie's paraphrase of CCIA President and CEO Edward Black's comments contains a memorable turn of phrase, "[If] you consider Sony an umbrella and shield, it is now full of holes."
Here's the ruling itself [PDF], finding that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."
Much to absorb. Back with more soon.
A few key spots for watching the conversation unfold:
The Wall Street Journal Grokster Roundtable, where Ernie Miller argues that despite the "tough" treatment of Grokster and StreamCast, the ruling itself "may turn out to be a significant victory for technology providers in general."
The SCOTUS Blog forum, where C.E. Petit argues that the Court "evaded the biggest question: What is the limit of the Sony doctrine?"
Picker's MobBlog, where Douglas Lichtman opines that the movie studios et al. have a "hollow" victory, "MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation. Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear -- tell everyone that your technology is designed to facilitate only authorized exchange -- and you have no risk of accountability. This is not the standard I was hoping for."
SCOTUS Blog brings the news that the Supreme Court has "ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the Internet."
More details -- including the ruling -- forthcoming.
SCOTUS Blog reports on the Brand X case: "In a 6-3 ruling, the Court decided that cable operators offering high-speed Internet access have no legal duty to open their service to customers of all Internet service providers.
In the cable case, the Court upheld the decision of the Federal Communications Commission that broadband cable modem companies are exempt from mandatory common-carrier regulation. That, Thomas wrote, is a lawful interpretation of the Communications Act, and thus is due deference."
No link yet to the ruling itself...
It also looks to be a very sad day for the reporter's privilege: "The Supreme Court on Monday turned aside pleas by two reporters and a magazine urging the Justices to create, for the first time, a right not to be forced to reveal to the government their confidential news sources. The action means that, at least for the time being, the Constitution and federal common law do not recognize a 'reporter's privilege' of confidentiality. (The Court denied review in Miller v. U.S., 04-1507, Cooper and Time Magazine v. U.S., 04-1508.)"
It's not about P2P. The P2P genie is irreversibly out of the bottle, with the software already installed on hundreds of millions of computers and developers in countries beyond the reach of American laws. It's the rest of America's innovation sector that will be living with the Supreme Court's ruling. So, as you read what they have to say, ask how it will affect not just Apple, HP, and Intel, but also the next "genius in a garage," like Sling Media or the kids developing urban vehicular grid technology.
That's only the opener. As we are wont to say in the blogosphere, read the whole thing.
Ultimately Congress is likely to be asked to rewrite whatever standard the Court articulates in Grokster. Motion picture studios and recording companies will likely insist on a rule imposing liability on any business that profits from infringement. High tech companies will likely insist on limiting any expansion of liability to businesses that profit from unlicensed peer-to-peer file trading. Under pressure from those industries, Congress is unlikely to draw a new line of general application that differs significantly from the one drawn in Sony. Drawing a sensible and robust line of general application would require Congress to revisit copyright remedies at a fundamental level. Industry lobbyists, seeking quick fixes to meet their immediate needs, will have little interest in such a project. Congress, therefore, will probably do what it has done before: enact a narrow rule that purports to fix the problem but proves unhelpful within months of enactment because technology has morphed in unanticipated ways.
Siva will be writing a reaction piece for Salon after the ruling comes down, just as he did post-Eldred.
As this short note over @ SCOTUS Blog says, it has lined up some terrific participants for metablogging MGM v. Grokster when the ruling comes down -- including Derek Slater, who will also be posting for EFF at Deep Links. Another excellent spot to watch: the Picker MobBlog, where Randy Picker, Doug Lichtman, Lior Stahilevitz, Julie Cohen, Wendy Gordon, Jessica Litman, Lawrence Solum, and Phil Weiser will be weighing in.
Richard Stallman has a great piece in the Guardian this week talking about the effects that software patents will have on the EU software industry, and in particular, Free/Open Source Software.
Especially effective are some examples he gives comparing software to other copyrighted works, such as a novel:
A novel and a modern complex programme have certain points in common: each is large and implements many ideas. Suppose patent law had been applied to novels in the 1800s; suppose states such as France had permitted the patenting of literary ideas. How would this have affected Hugo's writing? How would the effects of literary patents compare with the effects of literary copyright?
Consider the novel Les Misérables, written by Hugo. Because he wrote it, the copyright belonged only to him. He did not have to fear that some stranger could sue him for copyright infringement and win. That was impossible, because copyright covers only the details of a work of authorship, and only restricts copying. Hugo had not copied Les Misérables, so he was not in danger.
Patents work differently. They cover ideas - each patent is a monopoly on practising some idea, which is described in the patent itself.
Here's one example of a hypothetical literary patent:
Claim 1: a communication process that represents, in the mind of a reader, the concept of a character who has been in jail for a long time and becomes bitter towards society and humankind.
Claim 2: a communication process according to claim 1, wherein said character subsequently finds moral redemption through the kindness of another.
Claim 3: a communication process according to claims 1 and 2, wherein said character changes his name during the story.
If such a patent had existed in 1862 when Les Misérables was published, the novel would have infringed all three claims - all these things happened to Jean Valjean in the novel. Hugo could have been sued, and would have lost. The novel could have been prohibited - in effect, censored - by the patent holder.
To me the best sign was that Paul Grewal (pronounced "gray wall") of Day Casebeer kept pounding on the law, while opposing counsel Stephan H. Rovak kept pounding on the table, summoning the dread spectres of piracy (the defendants all had legal copies of the Blizzard game software) and copyright violation (all copyright claims were dismissed with prejudice in the lower court).
Last time we were waiting for news about the Grokster case, it was Cardozo law professor Susan Crawford who reminded us that there are other court battles that may have just as much, if not more, impact on the environment for innovation (It's Just As Important as Grokster). This time around, Declan McCullagh picks up the gauntlet, explaining why we should all be concerned about the outcome in Blizzard v. BnetD, the case in which open-source software developers are fighting for the freedom to reverse-engineer Blizzard video games in order to customize/extend the gamer experience:
The U.S. Supreme Court could release its decision on Monday in the much-anticipated Grokster case, which will determine whether file-swapping networks are legal to operate. Yet another, unrelated lawsuit before a federal appeals court taking place on the same day promises to be just as important.
The 8th Circuit Court of Appeals in St. Louis is set to hear arguments Monday in a case that may decide how the Digital Millennium Copyright Act, or DMCA, applies to computer software and the important practice of reverse engineering.
...Now that the case is before the 8th Circuit, the ideological divide highlighted in the Grokster lawsuit is repeating itself. Lined up on one side is the Electronic Frontier Foundation (which is also providing free legal assistance), the Institute of Electrical and Electronics Engineers, the Consumers Union, Public Knowledge, and some law professors. On the other: the Entertainment Software Association, the Recording Industry Association of America, the Motion Picture Association of America, and law professors.
Copyright buffs, of course, may remember that the DMCA includes limited protections for reverse engineering.
The text of the law is hardly clear, but it seems reasonable to conclude that [the lower court] was wrong and the DMCA should not apply. BnetD was invented to offer people who had bought legal copies of Blizzard games new ways to enjoy them.
While our Mr. McCullagh may be overstating the case a bit -- this isn't a battle where we stand to lose Betamax, after all -- it will certainly clarify just how much of a chokehold the DMCA has on innovation, interoperability, and free competition in an exploding market sector.
Two more must-read pieces on the case:
Blizzard v. BnetD Hearing Tomorrow Morning: "I hear you cynics saying that the courts let the DMCA trump everything, and in this case you may prove correct, but don't forget that the issue of the DMCA and the aftermarket was also at issue in the Lexmark and Skylink cases, and those cases worked out fine." [Groklaw]
Oral Arguments in Blizzard v. BnetD: "I think there is a reasonable chance for some sort of victory here as the lower court probably went too far. Of course, I wouldn't want to be arguing the case today ... the Grokster decision might have some impact (though it might not)." [Ernie Miller @ Importance Of...]
Update (2:30 p.m.): A few cautious words from our own Jason Schultz, who represents the programmers in the case: "The judges were struggling with the right questions. They're trying to balance copyright interests with the right to reverse engineer. They clearly recognized the public interest in reverse engineering, but they admitted this would be a hard case to decide."
A recording of the arguments will be available tomorrow, here.
In the US we've been trained to think of patents and copyrights as near god-given universal liberties, but they're not. They're specific rights granted by national governments and international treaties. That which is given can also be taken away, and it looks like Brazil is going to do this in an effort to keep more of its people alive.
Brazil's lower house of parliament has approved a bill to suspend patents on all antiretroviral drugs in order to permit local companies to make cheap generic copies of the drugs. The dispute centers on four specific drugs whose manufacturers have refused to give Brazil price discounts or to license the patents.
Brazil's problem is particularly acute because it has a nationwide free-drug program that attempts to reach all who need the medicine. These four drugs alone eat up 63% of the program's budget. According to research by the Brazilians, one of the drugs is presently being sold for 9.7 times its production cost. Of course the makers cry "research" and fail to mention that they spend more on marketing and advertising than they do on total R&D but let's not get into that. The question at issue once again is - where does intellectual property protection rate when stacked against 155,000 lives in Brazil alone? Should governmental grants of IP protection be absolute or be revokable?
Like many Copyfighters, I've come to rely on Creative Commons over the past few years to fine-tune my copyright. Creative Commons is prominently featured in "Darknet," and they're one of our major partners at Ourmedia.org. (The Guardian UK today calls CC and Ourmedia "cousins"; ah, the joys of familial bonds.)
I thought I'd ask Copyfight readers if you have any insights into two licensing areas.
1) Of all the Creative Commons licenses, none enables the creator of a work to allow her work to be used for commercial purposes but to be compensated for it.
There are several ways to go with this. The copyright owner grants an agent to negotiate on his or her behalf with a third party (such as a cable network or portable device manufacturer). The license provides that the creator is paid a fixed percentage of revenues generated.
A colleague and I approached the good folks at CC, who told us this kind of license wasn't in their game plan. So we're thinking of ways of making this happen outside of the CC framework.
Thoughts? Anyone interested in helping us devise a new kind of license that compensates the copyright holder? I could see rolling this out on Ourmedia in a few months, and thousands of people signing on.
2) On a few occasions, people have asked me whether they have the right to take photographs of individuals or children or teens in public places and publish these photos to the Web. The person or persons in the images are identifiable, but the photographer is doing it for creative, not commercial, purposes.
In some cases, they assign a Creative Commons license that allows derivative works to be made. Other times, they donate the image to the public domain.
It's happening today at sites like Flickr (and maybe Ourmedia, I'm not sure about that). If you tell the amateur photographers at Flickr that you need a release form from the subjects before posting the photos, they'll look at you like you're crazy. That's where the culture is moving.
I asked Creative Commons whether a photographer can assign a CC share-alike license to a batch of photographs if the subject in the photo is clearly identifiable, or whether you always need a release form (which no one except professional photogs uses).
Their answer was that it's a complex issue and not an area they generally get involved in.
I just bought a terrific new digital camera and, like millions of other people, now have the ability to snap amazing, beautiful candids of street scenes, public parks and other places where people hang out in public. My friend has a good lens on his digital camera and has snapped some terrific close-ups of kids playing soccer on a public field. Years ago, they might have appeared as a tiny fuzzy image. Now you can see who they are in full gigapixel glory.
In California, there's a right to control the use of your own images. Other states have other statutes, but most probably don't.
So. Any thoughts or guidelines about when it's permissible to donate images of identifiable people to the public domain or under a sharealike license without obtaining a release?
Via Roll Call, an interview with Rep. Joe Barton, Chair of the House Energy and Commerce Committe:
ROLL CALL: And copyright infringement?
BARTON: Are you talking about fair use?
ROLL CALL: Yes, I'm taking about the ability of people to steal movies,
music, all that stuff. Do you think you've done as much as you can do?
BARTON: Pure copyright infringement is Judiciary and some Energy and
Commerce. I want to protect our creators, the creative talent in this
country, the movie producers and the television producers, and the
musicians. I have great respect. ... I wish I had that talent. I don't, so I
respect those that do. And anything we can do to go against piracy I'm for.
Where I'm a little bit different, I believe that [Rep.] Rick Boucher
[D-Va.]; you buy a video, you buy a CD, you do have the right to make one or
two copies for your own personal use. That's called fair use. And we've
always allowed people, under the older technologies, to make one or two
copies. The problem when you get to the digital technology is that you can
make a thousand perfect copies. So, the Judiciary Committee ... their
solution has been to outlaw the act of copying. So you just can't make any
copies. That's the Motion Picture Association ... that's their position. No
copies. And so Boucher and I's position is, let's find a way to make a few
copies and then that's it - not for commercial purposes, not for resale -
just for your own personal use. And the technology is debatable. Some people
think the technology is there to do that. The CD people are putting that
technology in their CDs. The video people have not yet agreed that they can
do it, although I think they can. So that's an in flux issue.
Last month I spoke at BlogNashville, a conclave of folks who got together to discuss the state of blogging and the issues confronting emerging media such as podcasting and videoblogging.
At Dan Gillmor's session on grassroots media, I spouted off a bit (as I'm prone to do at these things) about fair use in the digital age. If the thousands of works that Ourmedia's 21,000 members have uploaded in the past two months are any indication, a majority of grassroots video and audio can be published and shared and remixed (if the owner allows it) by using Creative Commons licenses assigned by the creator to each work.
But there's another category of works that fall into the grey zone of fair use. And I said that it's important that we assert our fair use rights in this emerging landscape and not let the entertainment companies and their allies on Capitol Hill clamp down on this astonishing grassroots mediasphere before it has a chance to flourish.
A couple of sessions later, Gigi Sohn, the executive director of PublicKnowledge (and one of the heroes of my book), moderated a session about Copyright and the New World of Syndication. (The mp3 is here.
Gigi took the same position as Larry Lessig does -- that fair use is the right to hire a lawyer after you get sued.
That is perhaps true, given that fair use is not nearly as robust as many of us would prefer, and far less a bulwark against lawsuits than the public generally believes.
But the point I make about fair use in my book is far different: Use it or lose it.
So, what's your view on this matter, Copyfight readers?
I don't want to engage in a legal skirmish here, particularly because I'll be at a layman's disadvantage. But I'd love to hear some thoughts about high-level strategies for bulking up our fair use or digital rights as millions of us will want to borrow from and comment on our visual culture, just as 10 million blogs already do in the text world.
Here's some food for thought:
- A few minutes ago I just posted a set of fair use guidelines written for Ourmedia, on a pro bono basis (bless you!), by the remarkable IP team at Fenwick-West in San Francisco. They've reduced a monstrously complex thicket of laws into some easy-to-understand rules for the digital age (albeit rules with a lot of greys at the edges).
- Since Ourmedia launched in March, with the offer of providing free storage and bandwidth to anyone, anywhere, who wants to post works of personal media, we're naturally been dealing with issues of copyright infringement. You can find plenty of muddy greys on the site, as well as works we felt went over the line. (Not sure what the entertainment companies think about all this, but they should be pleased; we're giving our members a crash course in copyright law.)
- In my latest entry from the book on Darknet.com, I excerpt a section about a fellow who spent $700 to create a DVD to annotate his favorite TV show. I found it fascinating that Siva Vaidhyanathan and Ernest Miller gave different views of fair use for such visual works. I suspect both are correct, though they chose different parts of the legal tradition to emphasize.
- This morning I came across this video by Josh Wolf (see the 21MB QuickTime movie). He took a music video by a band and inserted news clips of people protesting U.S. foreign policy. Infringement? Creative reuse? Or muddy grey?
Bridgeport is policy making wrapped up in a truncated view of law and economics, shorn of analysis of all the public interest factors and harm to derivative creators that nuanced exponents, such as Judge Posner, engage in. ...[In] the end, it is creators of new sound recordings who build transformatively on the works of predecessors who will suffer the most, and thereby all of us. Hopefully cert. will be granted, and the 6th Circuit reversed.
Judge Marilyn Patel issued a ruling (PDF) Wednesday that settles an important question in the ongoing Napster (yes, Napster) case -- whether under the law, simply offering copyrighted material to others (say, by listing it in an index) means you're distributing it.
The record label lawyers, as Ernie Miller so delicately puts it, "were bloody idiots because they didn't nail down evidence of direct infringement before launching the Napster lawsuit." They have therefore been working hard at making the Artists' Rights and Theft Prevention Act of 2005 (ART Act) work for them, hoping Judge Patel would adopt a new, broader standard for the right of distribution based on one of its provisions. If Judge Patel found Napster liable for direct infringement on the theory of making-available-as-distributing, the labels could press forward against Napster's investors on that basis. No such luck.
Rather than requiring proof of the actual dissemination of a copyrighted work or an offer to distribute that work for the purpose of its further distribution or public performance, plaintiffs' theory is premised on the assumption that any offer to distribute a copyrighted work violates section 106(3). This is not sufficient to satisfy plaintiffs' burden of proving that Napster or its users directly infringed their copyrighted musical compositions and sound recordings, as they must do if they are to hold defendants secondarily liable for that infringement. Accordingly, the court holds that defendants are entitled to summary judgment on this issue.
In other words, copyright holders have to prove that someone actually downloaded the file from you before you can be found liable for distributing. The simple act of offering isn't enough.
Accordingly, the court holds that defendants are entitled to summary judgment on this issue.
In the context of the case, this is a minor victory -- Judge Patel did not dismiss the other theories for direct infringement, so the case will continue against Napster's investors on those grounds. But it does clarify the law, providing a safeguard against the over-reach that the ART Act threatened.
Last week Ernie Miller brought to our attention a news report revealing that none of the legislators pondering a new law to mandate the switch to digital television appeared to oppose the inclusion of a broadcast flag provision (Broadcast Flag Rears Its Ugly Head in DTV Transition Hearings). Not a surprise, but nonetheless deeply disappointing.
Now we have some extraordinarily good news from Communications Daily: someone does oppose the provision. Even better news: that someone is the bill's main author.
Reports CommDaily (unfortunately behind a pay wall):
The Motion Picture Association of America is unlikely to push for a broadcast flag component in DTV legislation establishing a 2008 hard date because the bill's main author, House Commerce Committee Chairman Joe Barton (R-TX), is against the provision. Meanwhile, the MPAA will keep briefing House and Senate members on a broadcast flag bill's importance and seek other ways to get the content protections it wants.
A new Congressional Research Service report raises concerns that the broadcast flag's technological limitations could hinder activities normally deemed "fair use" under copyright law. For instance, students might not be able to email themselves copies of projects incorporating digital video content because no secure system exists for email transmission. "The goal of the flag was not to impede a consumer's ability to copy or use content lawfully in the home, nor was the policy intended to 'foreclose use of the Internet to send digital broadcast content where it can be adequately protected from indiscriminate redistribution,'" the report said, quoting from the FCC order.
Limit fair use, you say? Whaddaya know.
I'm tracking down a copy of that report, and will post when I find it; stay tuned.
Update: It looks like the "new" report [PDF] was released in April, before the DC Circuit struck down the Broadcast Flag. It repeats the FCC's assertion of authority to impose the Flag but also notes the objections of public interest organizations (Public Knowledge, EFF, et al.). Evidently, the new bit is that Congressman Barton is (presumably) citing the report to justify his distaste for the Broadcast Flag provision. Nice.
The broadcast flag is just another tool devised by the MPAA to help insure that if people want to watch something beyond the original air-date, they'll have to go out and buy it.
The broadcast flag isn't about bringing media to the masses, it's about bringing media to the masses, grabbing them by the grapes and squeezing every penny they possibly can from the public.
Fact is, by the time a production makes it to broadcast television, it's made all the money it's going to make. Companies purchase advertising time, the production houses make some more money. At this time, it doesn't make one bit of difference whether someone tapes or doesn't tape a movie from the television, and the funny thing is, that the taping of movies from broadcast or cable television is protected under fair-use.
By insisting that there be a broadcast flag, the MPAA is basically saying, "We don't care about your right to fair-use, we want your money and we'll get it, one way or another."
It's not so much that they don't care about fair use. They simply want to sell our rights back to us at a premium. This time, they'll be called "features."
Several members indicated they'd seek a broadcast flag in any final DTV transition bill, including Reps. Jay Inslee (D-Wash.), Edolphus Towns (D-N.Y.), Elliot Engel (D-N.Y.) and Marsha Blackburn (R-Tenn.). No one actually came out against the flag. [emphasis added]
There is a lot of talk about the subsidy, but who cares? Subsidies will only matter for a couple of years, the changes the Broadcast Flag will implement will last essentially forever. Doesn't any of these representatives realize what a major change they would be making in our technology/innovation environment?
Rep. Elliot Engel, (D-N.Y.): "This is really a budget bill, not a telecom policy bill."
If you add the Broadcast Flag, it becomes a copyright/innovation/technology policy bill.
Now is not the time to give up on the Broadcast Flag! We need to explain to these Congressmembers that people aren't going to appreciate the change to DTV when they can't record a video for a friend who is out of town, or take copies of the kid's favorite shows to Grandma's when she babysits.
Want to know what it looks like after you've been pwn3d by the feds? Check out "Elite Torrents."
Andrew Zangrilli over at blogbook has a piece commenting on the fact that this shutdown was part of a bigger anti-torrent sweep carried out by the FBI and US Customs (!) Last October I wrote a brief note indicating that the Dept. of Homeland Security (which now controls Customs) has an "intellectual property rights center." I'm guessing this originated out of there.
CNN Money has a particularly slanted article on the raid, repeatedly using Cartel language and ominous phrases like "It's not known how much Internet piracy costs US companies every year" (hint: NONE. Do your damned background research, Ms. Crawford!).
Eric Sinrod for USA Today [hyperlink, mine]: "[The] first judge who has been called upon to rule on the issue has determined that the ART Act does not create copyright infringement liability for simply making copyrighted works available to the public without evidence of true distribution of those works."
According to Canadian cyberlaw prof Michael Geist, the Canadian Federal Court of Appeals has affirmed a lower decision denying the Canadian Recording Industry Association the right to subpoena the identities of 29 alleged filesharers:
The court focused much of its discussion on the privacy concerns associated with disclosing the identities of the file sharers. Although it noted the importance of intellectual property protection, it emphasized that in the Internet age "the potential for unwarranted intrusion into personal lives is now unparalleled." The court was clearly sympathetic to the privacy issues raised by the case and sought to map out some significant privacy protections. For example, it concluded that data associating users with an IP addresses goes stale very quickly and therefore evidence that is not current may be sufficient reason to dismiss a motion to disclose user identities. The court also noted that there must be care taken to ensure that personal information beyond the copyright allegations are not disclosed and that the identities of the individuals may be protected through confidentiality orders or by using initials.
While these protections are important, the court has certainly opened the door to new file sharing lawsuits. The court says that a "bona fide" standard is sufficient for disclosure, a different standard from the higher prima facie standard used by the trial judge. The court also left open many of the copyright issues, concluding that the trial judge should not have delved into the copyright analysis. While it raised some potential concerns with that analysis, the appellate court did not reach any definitive conclusions on the copyright issues.
As Ernie has noted, copyright scholar Bill Patry has started a blog. So far, it's a hit for copyright geeks like myself, presenting interesting issues, depth, knowledge, and fine writing. Patry has a particularly interesting discussion going on right now about the constitutionality of the federal anti-bootlegging statutes vis-a-vis the dormant Copyright Clause, with comments from two Boalt Hall law students and EFF's own Fred von Lohmann in the mix.
Here's the shockingly broad and badly conceived bill that Hollywood is shopping on the Hill, trying to find a Congresscritter so fantastically, suicidally stupid that s/he will actually set out to break America's televisions.
Nice article last week from Jonathan Krim in the Washington Post on the current "land grab" going on in the USPTO as it seems Congress might actually get around to doing something with the Office, instead of just talking about it. Whether any of the proposed "reforms" will address fundamental issues of poor patent quality, examiner workload, or other core items remains uncertain. What is certain is that the only voices currently being heard are those of patent holders - companies, individuals, universities. Other stakeholders, such as free/open software developers and even the patent examiners themselves, are not even invited to comment.
As Krim notes in plain language:
more controversial notions aimed at deeper change to the patent system [...] were snuffed out long ago, in a process effectively hijacked by large companies and powerful patent-lawyer groups.
Proposals that should be uncontroversial - such as enforcing the requirements that patents be unique and non-obvious, and that relevant prior art must be cited - seem to be beyond consideration even when they are recommended by nonpartisan organizations such as the National Academies of Science. This makes me feel particularly hopeless about software patents.
We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver status. And the agency's strained and implausible interpretations of the Communications Act of 1934 do not lend credence to its position. As the Supreme Court has reminded us, "Congress does not...hide elephants in mouseholes." Whitman v. Am. Trucking Association 531 U.S. 457, 468 (2001). In sum, we hold that the Commission only has general authority under Title 1 to regulate appartus used for receipt of radio or wire communication while those appartus are engaged in communication.
The [broadcast flag] rules set out to ban the use of Open Source/Free Software in digital television applications, and to require hardware components to be designed to be hard or impossible to create open drivers for. Fox exec Andy Setos told me that we were there to create "a polite marketplace" where no one would be allowed to disrupt his business model without getting his permission and cooperation first (cough planned economy cough commies cough).
I'm honored and thrilled to have been part of the gigantic upswelling of public outcry over this naked attempt to bootstrap the studios' limited monopoly over copying movies into an unlimited monopoly over the design of every device that might be used to copy a movie.
Update #2: Declan McCullagh @ CNET: "In a stunning victory for hardware makers and television buffs, a federal appeals court has tossed out government rules that would have outlawed many digital TV receivers and tuner cards starting July 1. ...One result of Friday's ruling is that, if upheld on appeal, the fight over digital TV piracy will return to Capitol Hill. The court noted that the FCC 'has no power to act' until 'Congress confers power on it' through enacting a law explicitly authorizing the broadcast flag."
The American Library Association, Public Knowledge, EFF, et al. just won our joint challenge to the FCC's ability to regulate consumer electronic devices that receive digital television signals, 3-0 at the D.C. Circuit Court of Appeals.
It's a lengthy administrative opinion, but it basically says the FCC can't regulate home use of digital content without explicit authority from Congress and that educators, librarians, and consumers have a legitimate interest in fair use of those materials.
According to the website of Bob Goodlatte (sounds like a James Bond villain, doesn't it?), the Republican High Tech Working Group will focus on the following issues:
Ensuring Employee Stock Ownership Remains Viable – We will vigilantly promote and protect the stock ownership and retirement security of high-tech’s rank and file employees.
Research & Development (R&D) Tax Credit – We will seek to extend the R&D tax credit and ensure that basic federal R&D spending is sufficient to maintain U.S. technological edge.
Skilled Workforce – We will continue to prepare and develop workers for an information economy by supporting education reforms and funding that improve American’s math and science programs in order to fill high-tech jobs.
Reduce Trade Barriers – We will continue to promote free and fair trade by lowering barriers and supporting trade agreements like CAFTA (Central American Free Trade Agreement).
Ensuring Fairness in Government IT Acquisitions – We will continue to promote the commercialization of the Federal marketplace to ensure an open and competitive landscape for all technology companies.
Patent Reform – We will work to modernize the patent system so that companies have incentives to produce new and high-quality patents, and that the United States Patent and Trademark Office (USPTO) provides effective turnaround especially for an industry that has rapidly changing technology and innovations.
Protect Intellectual Property from Digital Piracy - We will promote and enforce strong copyright and patent protection laws to prevent and combat the growing trend of digital piracy.
Spectrum Enhancement – We will continue to work to update the Telecommunications Act to reflect the changes in technology and competition that may have been driven by the Internet.
Spyware and Phishing – We will work to ensure that innovation is not stifled and consumer confidence is not threatened by bad actors, but that the Internet remains a safe and secure place for electronic commerce to take place.
Promote Health IT – We will work with the Administration to enact the federal electronic health initiative to move more medical records on-line to save costs, reduce errors, and provide higher-quality care.
Promote Broadband – We will work to fulfill the President’s goal of access to broadband by working to create economic incentives, to remove regulatory barriers, and to promote new technologies to help make broadband affordable for all Americans.
Australian Attorney General Philip Ruddock has just released an issues paper on "fair dealing, fair use and other exceptions in the digital age" in order to solicit opinions on whether Australia's Copyright Act should include additional specific exceptions to copyright or a broad "fair use" exception. Among the questions under consideration: whether Australia should recognize "format-shifting" and back-up copying as fair dealing/fair use.
A number of commentators have been channeling Wendy Seltzer on this issue, rightly arguing that we shouldn't create new (simultaneously over-broad/over-specific) laws to fight spyware, but rather, should follow New York Attorney General Eliot Spitzer's lead and simply use the laws we have. Over at the Trademark blog, Marty Schwimmer points out that we also have a stealth weapon in the arsenal -- the "(Ben) Edelman effect." According to Marketwatch, Ben's online muckraking has resulted in Ask Jeeves "terminating an agreement with a marketing/distribution partner that uses drive-by downloads (a form of adware)." Well done.
I see Ben's work as a kind of "Chilling Effects" for spyware. Journalists and litigants are getting hard data, and we're seeing real results. Can we apply this strategy to fighting other kinds of anti-consumer malware?
It isn't just that they want Canada to implement the WIPO Internet treaties, they want us to implement a Canadian version of the DMCA. They interestingly question whether the Canadian plan meets WIPO standards given the exclusion of devices from our anti-circumvention provisions. I think a plain reading of the WIPO Internet treaties suggests that it does. Meeting the US standard is, of course, an entirely different matter.
Faultline report published on The Reg indicating that the US Board of Patent Appeals and Interferences has ruled that InterTrust's DRM patents have precedence over Macrovision's. At least, in the US, because that's based on "first invention." However, overseas the nod usually goes to application filing date. There, Macrovision claims to have the edge, though I don't think they've gotten an official court ruling anywhere yet. InterTrust seems to believe it owns the international patents as well.
At stake is the MPEG LA licensing group patent pool and the potential very large pot of royalties that will emerge from it as DRM starts to become an issue on mobile phones.
A Reg headline caught my eye: Congress legalizes DVD censorship. *Blink* OK, that's not totally out of character, but what's up? The article, by Thomas C Greene, describes a bill called the Family Movie Act.
According to Greene, this bill "indemnifies any company that makes prudish versions of movies available without authorization." That sounds a lot like sharing remixes, which I know Congress won't go for. What means this "makes... available" anyway? So off I go to Thomas to read the bill. Unfortunately there are four versions in there, and it's not clear which one the House-Senate conference committee actually sent to the President's desk.
As far as I can glean, this bill legitimizes the unauthorized (by the original artists) creation of derivative works, so long as they're under a "family friendly" rubric and they're not resold for commerical purposes. The idea is not to produce a new DVD per se, but to permit technology, such as that made by companies like ClearPlay, that allows DVD players to show a different version of the DVD than might originally have been on the disk, for example by skipping past objectionable content, or overlaying G-rated audio. ClearPlay's current product involves "downloadable filter templates" that can automatically skip past "objectionable" content. According to the company site, the filters go on a movie-by-movie basis, so you download the specific filter for the movie you want to watch.
Unless there's something in the final bill that I missed (anyone have a link to it?) I don't see how this is censorship. My guess is that what you end up with is a lot like watching movies on airline flights. Greene does note (citing Marjorie Heins of the Free Expression Policy Project) that optional technologies have a distressing tendency to become mandates, such as Internet nanny filters in public libraries. Agreed that's a danger, but I still don't see a problem with the home consumer customizing the family viewing environment.
Update 2: the story is also appearing on more conventional media, including Declan on CNET, and an unbylined AP story (here on siliconvalley.com). Declan points out that the draconian punishments in the bill would in theory permit authorities to target individual P2P users with remarkably high penalties for sharing a single movie. Pontification on the obvious decay of a society that treats "theft" of "virtual property" more severely than actual theft of real property are left as an exercise for someone else.
Reuters wire story (here on CNET) indicating that a customer has sued Comcast for releasing her information without a court authorization or actually bothering to notify her. Apparently the first she heard about it was when a collection agency called seeking a USD 4,500 judgement.
Also on CNET, John Borland has a report that ESS has settled with the MPAA over ESS' sale of DVD-decoding chips. Terms unclear, but ESS is mouthing all the right kowtowing words, so my guess is they got their asses handed to them and now have to make nice in public.
Cody and co. are apparently very near an implementation of a utility that will allow people to turn songs acquired through Napster Light (the a la carte service) and Premium (the non-portable subscription service) into unencrypted files. You have to have paid for the songs first to do this circumvention, because the keys have to be retrieved from Napster. This tool will actually circumvent and remove the DRM, rather than recording from the sound card or employing other similar workarounds to create unencrypted files.
[...]
Cody sees his actions as "ethical," irrespective of legality, and he is willing to "fight the DMCA." He wants to be able to play his lawfully acquired Napster music on Linux.
Cory Doctorow @ BoingBoing: "A group of over a dozen poor nations (the 'Friends of Development') have presented a long, substantive proposal about how to reform IP in poor nations to encourage development. The US and other rich countries have come back with the ridiculous proposal that the way to help developing nations is to assign them 'buddies' from the developed world who will lend assistance in writing American-style copyright and patent laws in poor countries where they can barely afford to feed and shelter their citizens.
The developing nations are aggressively calling bullshit on this."
Ren Bucholz @ Deep Links (where EFF has been posting rough transcripts of the proceedings: Day 1; Day 2): "We won big this week. First, there is a genuinely substantive policy discussion going on within WIPO about its obligations to be more than an IP-factory and instead explore its capacity as a positive force for the social and economic development of its member states. Not only was the majority of the meeting spent discussing the excellent Friends of Development proposal, but the good guys secured two more meetings to focus on reforming WIPO, defeating those who wanted to limit the process to a single additional meeting. Second, WIPO agreed to open the next two events to the 17 non-accredited non-government organizations (NGOs) that fought hard to attend this first meeting."
South-North development monitor, SUNS: "Another highlight was a presentation by India, another major proponent of the Development Agenda. ...India said that much more needs to be done in WIPO to meet development challenges. In WIPO's terminology, 'development' means increasing a developing country's capacity to provide protection to IPR owners. This is quite the opposite of what developing countries understand when they refer to the 'development dimension.' It added that the FOD paper corrects this misconception, that the development dimension means technical assistance.
India said that the real development imperative is ensuring that the interest of IP owners is not secured at the expense of the users of IP, of consumers at large and of public policy in general. The proposal therefore seeks to incorporate into international IP law and practice what developing countries have been demanding since the TRIPS agreement was foisted on them in 1994."
William New @ IP Watch: "Private and non-profit sector representatives generally lined up on either side of debate between developed and developing countries undertaken in an inter-sessional intergovernmental meeting (IIM) this week. ...A wide range of civil society groups have joined developing countries in pushing for reform of WIPO’s treatment of development issues. ...Industry representatives, meanwhile, generally support the notion in the US proposal that no fundamental transformation of WIPO is necessary. ...One industry representative called the Friends of Development proposal a 'distraction,' and industry groups generally appeared interested in preventing the Friends of Development proposal from gaining too much traction within WIPO."
Bridges Weekly Trade News Digest : "[The] majority of developing country members, including the groups of African and Asian countries, expressed support for many of the issues raised in the FoD submissions, and stressed the importance of ensuring that the design and implementation of intellectual property rules take into account different countries' respective levels of development -- that one size should not be made to fit all. "
John Kennedy, head of the International Federation of the Phonographic Industry (IFPI), announcing a fresh wave of lawsuits in Europe: "We have been responsible and transparent litigators -- some might say the nicest litigators in the world." (Via CoCo blog.)
Later: More on what these super-cool nice guys are up to, from The Register.
Ren Bucholz @ Deep Links, blogging from behind closed doors at WIPO: "The world's premiere IP-expansionists are considering the radical proposal that more rightsholder protections aren't always in the best interests of developing nations. Several copyfighters have been taking collaborative notes all day inside the cavernous main hall, and you can check out the transcript after the jump."
I've only just skimmed the notes, but it appears that accreditation for the NGOs locked out of the meeting will no longer be a problem: "There's also agreement among regional coordinators on the accreditation of 17 NGOs at the first IIM." Wow. Fantastic news.
It also looks like there was considerable push-back on the notion that WIPO's engagement with development issues should be limited to "technical assistance." Many delegates spoke up in support of the Friends of Development proposal, stressing the critical importance of looking at intellectual property law and policy from a holistic standpoint. There are several refrains of the phrase, "IP should not be considered an end in itself."
Which isn't to suggest that Day 1 was free of the divisiveness that preceded it. The US representative, Paul Salmon, argued that while "more needs to be done" about development issues, that's not WIPO's domain. "WIPO should focus on IP -- the UN does not need any new development agencies."
"We don't believe the UN needs another development agency," said the lead US delegate. "We do not support setting up new bodies." He cited the UN Development Program and the UN Conference on Trade and Development as the key UN agencies with specific development mandates.
The developing country proposal specifically argues against development issues being limited to technical assistance and placed solely under the PCIPD.
The United States also argued that WIPO should focus on intellectual property protection, a point countered by several countries such as Egypt that want a broader focus.
The US delegate issued a potential threat to WIPO if it adopts a stronger development focus. "We support WIPO. We would not want to change WIPO in a direction that would diminish that support," he said.
[...]
Another procedural matter at the meeting was the announcement at the outset that seventeen "ad hoc" (not formally recognized by WIPO) non-governmental organisations would be allowed to attend the meeting after all. But the United States said the groups and their representatives should be carefully scrutinized before being allowed to attend any future meetings.
Earlier this week, David Bollier wrote about how the US and other wealthy nations are pushing developing countries to adopt ever-ratcheting intellectual property protection as an end in itself even as they consider for themselves the smarter approach -- judging a specific IP protection by its performance.
As CPTech's Jamie Love observes in The Financial Times, "Regardless of what is said in Delhi, back home wealthy countries are backing open standards for the Internet, open-source software, open-access archives for publicly funded scientific research, public domain databases like the Human Genome Project or the HapMap Project and similar open initiatives." Why? Because there are considerable social and economic benefits to doing so.
Now, in anticipation of next week's historic WIPO Development Agenda meetings (April 11-13), a number of public-interest groups are working together to ensure that all of the delegates have the tools to argue for IP law and policy that accords with their own national best interests. As my EFF colleague Cory Doctorow points out over BoingBoing, this includes a clear-eyed look at what wealthy nations are saying in Geneva while reserving for themselves the luxury of exploring more intelligent approaches at home.
Love has stepped up to bat, providing (1) links to various countries' proposals for interpreting the Development Agenda and (2) a telling "scorecard" of key words in the proposals, providing an at-a-glance analysis of substantive slant.
Compare and contrast the scorecard for the US and the "Friends of Development," which includes Argentina, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela:
USA [Proposal]
All words: 3,059
Abuse: 0
Access: 3
Access to knowledge: 0
Anticompetitive: 0
Consumer: 0
Doha Declaration on the TRIPS: 0
Education: 6
Exceptions: 0
Human Rights: 0
Limitations: 0
Market failure: 0
Monopoly: 0
Open source: 0
Poverty: 0
Public Health: 0
Friends of Development (14 countries) [Proposal]
All words: 12,040
Abuse: 6
Access: 3
Access to knowledge: 7
Anticompetitive: 4
Consumer: 9
Doha Declaration on the TRIPS: 3
Education: 3
Exceptions: 3
Human Rights: 2
Limitations: 4
Market failure: 0
Monopoly: 6
Open source: 1
Poverty: 1
Public Health: 5
Here we can see even more clearly the farce the WIPO Secretariat is carrying out by barring participation in these meetings by groups that are among the best-qualified to be there. Groups that were -- oh, say -- founded to address the issues the US representatives aren't addressing. Bonus headline for the "big media" journalists who ought to be covering this story: "IP Justice Barred From Meetings to Address IP Justice." It would be funny if it weren't true.
Two more of my EFF colleagues, Gwen Hinze and Ren Bucholz, will be blogging these meetings next week over at Deep Links, and I'll be alerting you to new posts here at Copyfight. Stay tuned.
The question of whether linking is legal continues to be a source of international wrangle. According to The Reg, the BBC have sent a cease-and-desist to a Dutch site that permits users to query British sports results published by the BBC on their Ceefax teletext service.
For whatever reasons, the BBC offers only a limited version of its Ceefax pages on the continent. So Hendrik Noorderhaven created a site (Ceefax.tv) that receives uploads of data published in the UK and permits local users to search it. Noorderhaven claims (with some justification I think) that he's doing neither more nor less than Google does - capture the data source, index it, and respond to queries. The BBC disagrees.
Visiting the site does indeed give one a Google-like feel. It's a bare page with a couple of buttons and a search text box. It notes that Ceefax is a trademark of the BBC. It's hard for me to discern on the face of it how the BBC can complain about this site and not any other search engine.
Public Knowledge co-founder David Bollier has a must-read piece on the current machinations at WIPO and the "irony -- if not hypocrisy -- that there is growing debate within the United States and Europe about the actual value of strict IP rules even as they press poor countries to adopt the West's legal regime":
While the US and Europe mull such changes, they are pressuring India to adopt a strong patent law that sanctions only closed and proprietary models for controlling access to knowledge.
Why such intransigence in the West about relaxing IP rules in order to help the poorest, most needy nations develop? Perhaps because in this time of American triumphalism, the West thinks it can prevail through sheer force. This is apparently the plan at WIPO, which has refused even to allow an open debate on the issue.
In the non-literal sense, this time: it has refused to hear Chamberlain v. Skylink, letting stand the appellate court decision that barred Chamberlain from using the DMCA to short-circuit competition.
As I mentioned at the beginning of March, the site heise.de was sued over an article that contained a link to a site. The targeted site provided information and (two clicks later) downloads for software that allows consumers to copy DVDs. The Munich court found that heise had deliberately violated German copyright law by providing assistance - essentially contributory copyright infringement.
In a small glimmer of hope, the court did find that it was not permissible to block publication of the article entirely, which the music industry had wanted. Heise has not yet stated whether it will appeal.
"remove references and links to sites or services that do not respect the copyrights of rights holders"
"require subscribers to consent in advance to the disclosure of their identity in response to a reasonable complaint of intellectual property infringement by an established right holder defence organisation or by right holder(s) whose intellectual property is being infringed"
terminate contracts of recidivist
implement instant messaging to communicate with infringers
implement filtering technologies to block sites that are "substantially dedicated to illegal file sharing or download services"
voluntarily store data for copyright enforcement
Did I say "wish list"? Sorry; that would be "hit list."
This media advisory suggests that the General Assembly language binds the secretariat to close out civil society NGOs, but the restrictive gloss on this language is a creation of the secretariat alone.
Previous relevant Copyfight coverage here and here.
Update: More preemptive spin control reported @ IP Watch: The Friends of Development detail their proposals for WIPO reform and rebut US representatives' counter-proposal aimed at minimizing/containing the Development Agenda: "[The] Friends of Development emphasized their view that 'the development dimension of intellectual property is not the same thing as technical assistance.' They affirmed that they attach importance 'to the role of intellectual property in the path towards development' and stressed their belief that 'WIPO could have a new role…if it incorporates the development dimension into its work.'"
Kevin Heller on Capitol Records v. Naxos of America, the New York ruling that has everyone worried about yet another expansion of copyright: "[The decision finds] that common law in New York 'protects ownership interests in sound recordings made before 1972 that are not covered by the federal copyright act.' ...If memory serves, this case would affect the outcome of the Grey Album scenario were that case litigated."
Ernie Miller, responding to the Court's assertion that the case "will have significant ramifications for the music recording industry, as well as these litigants": "Just the music industry? How about significant ramifications for the public? Seems like the Court forgot why it is called the public domain."
Fredweighs in on Bosley Medical Institute v. Kremer:
This is a very big deal (props to Public Citizen, which defended the case), as I'd say the opinion's rationale applies with equal force to the content, as well as the domain name, of a website. If that's right, then noncommercial critics are completely off the hook with respect to federal trademark and dilution claims. Free pass. Scott free.
Hmmm...Inquiring minds want to know: what does Marty think?
Update (April 6): Marty responds: "A guy named Kremer gets a hair transplant. Stop me if you heard this one."
Many have forgotten about the procedural and regulatory abomination that is ICANN. But the folks at ICANN Watch have not, and they report yet another scandal regarding domain names. In this case, the bogus procedures that have allowed the international airline cartel (IATA) to take over the ".travel" domain by proxy (ICANN reveals ".travel" sponsor is a front).
Read the whole thing and wonder why ICANN is still in charge of the domain name system.
You remember Floris Florian Mueller of NoSoftwarePatents.com complaining about the EU Council's thoroughly perplexing decision to make the EU Software Patents Directive an "A" (priority) discussion item? No? Here's a refresher:
"A wannabe Napoleon who heads the Commission and a Microsoft puppet that runs the DG (directorate general) in charge have decided to negate democracy."
The European Parliament has dropped its objections to the way the "common position" of the EU Council on the planned Directive on the Patentability of "Computer-implemented Inventions" was adopted. The Legal Committee of the European Parliament had initially insisted on examining the protocols of the decisive meeting of the Council of Ministers at the beginning of March. ...According to a parliamentary spokesman, the Legal Committee had now decided, however, no longer to take into account the "small irrelevant errors" committed.
That's how you make molehills out of mountains -- wait a little while, then proceed as if nothing happened.
Next up: more lobbying as the EU Parliament hashes out its objections to the Software Patent Directive within the confines of what CoCo blog calls "the restrictive procedure of the second reading."
The Bangkok Post provides a provocative "how-to" piece, Entertaining Ideas of Greed [hyperlinks and emphasis, mine]:
Kamal Idris, the head of WIPO, has a glowing tribute to intellectual property idealism. "Our goal for World Intellectual Property Day and beyond should be to encourage young people everywhere to recognize... the artist within themselves. From the classrooms of today will come the entrepreneurs, the scientists, the designers, the artists of tomorrow. WIPO is committed to promoting a culture in which young people can realize this potential.''
Excellent words. WIPO itself is not quite that open or open-minded. At two WIPO meetings this month, all 182 member nations will discuss intellectual property enforcement and its effect on development, and on developing countries. Mr Idris and his board decided to bar participation by the top experts in the field: public interest groups. They are not permanently accredited by WIPO, and apparently it is a full-time job to observe the UN body if you want to give your opinion about its work. [Ed.: this isn't quite correct, but unfortunately close.]
[...]
The always puckish Need To Know Internet journal suggests those who support copyright hold book-burning parties on April 26. No, not that kind; "burn" some of the tens of thousands of wonderful books out of copyright on to CDs so others can read them for free. Get some of the most popular at Project Gutenberg.
Get on the Internet and visit two new websites. At Peer Impact, you can download music and get discounts if you let other people download from you. Ourmedia.org actually encourages Mr Idris' young people to recognise the artist within themselves by letting them post their music, videos, writings and other intellectual property to let others share it.
In all, Justices Scalia, Souter, and Breyer were all squarely concerned about the impact on new inventors and future innovation, while Justices O'Connor, Ginsburg, and Kennedy were most interested in the interpretation of Sony and the merits of the other proposed tests. It was difficult to glean the stance of Justices Rehnquist, Stevens, and Thomas from the oral arguments alone.
My best guess is that the Court will not issue a decision that drastically hurts future technological innovation in general. It was comforting to hear that more than a few Justices recognized possible problems that future innovators would face if they reverse the 9th Circuit based on the existing Betamax doctrine.
Matthew Yglesias was evidently quite serious when he pledged to start writing about the copyfight (see Socially Optimal Piracy):
The idea that intellectual property law should have the protection of intellectual property as its purpose rather than as the means used toward the end of overall social betterment is a serious error that the content industry has been remarkably successful at inducing in American society.
Ask most 14-year-olds what GROKSTER is and they'll all know it as a place to find music and movies. But if you ask record and film executives, they'll tell you it is software that steals.
Yesterday the industry took their case against software developers Grokster and Streamcast to the Supreme Court. They're claiming that 85 million songs and 400,000 movies are being illegally downloaded every day without a penny paid to artists.
Grokster says it only makes software and should not be held responsible for what users choose to do with it. They say their software is similar to technologies like the video camera and the Xerox machine and that shutting them down will hobble the development of future, and important technologies for the knowledge economy.
Update: I managed to miss this, but you shouldn't -- Siva's .02 yesterday on Grokster: "If you have a problem with peer to peer, you have a problem with the Internet."
