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.
As you undoubtedly recall, months ago Google launched their Google Print Library Project scanning thousands of books from the country's libraries for potential search, putting up whatever fair use or the publisher would allow.
Publishers, in typical copyright-holder paranoia fashion, worried that perhaps the two line snippets Google would be providing of their books would spell the end of the world for their entire industry. They wrote articles attacking Google for their cruelty and finally, today, Google announced it would back down.
That's right: Google won't even scan any book copyright holders ask them not to, even though doing so is perfectly legal. It's as if copyright holders got to dictate what books get placed in libraries. Their short-sighted selfishness will cost us all, depriving us of our heritage in our online Library of Alexandria.
There has been another terrorist attack, this time taking the form of a series of bombings in the London underground and a bus. Be careful and stay alert today, everyone. My prayers are going out to the innocent people who have been badly frightened, injured, or killed.
The producers recently secured rights from Tribune Media Services (TMS), a division of Tribune Company, and will attach a writer over the next month. The plan is to pitch a modern take on the classic crime-fighting hero to networks this summer.
Actually, I would kind of like to see a Dick Tracy television show.
Downhill Battle: "The project is a free, open source set of software tools for watching and distributing high quality, full screen videos over the internet at almost no cost to the publisher (BitTorrent, baby). For viewers, this means you can elegantly and simply subscribe to your friends' channels, a channel for your zipcode, or organizations and watch a truckload of videos that you can't get on regular TV. For videomakers, you'll finally have a publishing tool for all your videos -- it will be as easy as blogging -- just upload your files and you have a channel."
Xeni @ BoingBoing: "At present, Google Video allows you to search within an expanding archive of TV content -- sports, docs, and news, mostly. But today, with the launch of the company's Video Upload Program, Google has begun accepting video content from anyone who cares to upload it."
When Doug Heckman was installing a PC Pitstop program, he actually read the EULA. In it, he found a clause stating that he could get financial compensation if he emailed PC Pitstop. The result: a $1,000 check, and proof that people don't read EULAs (3,000 people before him didn't notice it). The goal of this was to prove that one should read all EULAs, so that one can see if an app is spyware if it is buried in the EULA.
So many links on copyright and fair use, so little time. Here are few that caught my eye in the past week:
Via Frank Field via CoCo, Metallica frontman James "let's sue Napster dead" Hetfield, on Beatallica, the band that recently received a C&D [PDF] for offering remixed versions of Beatles and Metallica tunes: "'Yeah. I heard that. That was amazing. Someone put a lot of thought and talent into that man!...I heard it online. It was about a year ago, or more. It was pretty amazing. It was pretty well thought out so I'm glad there's people like that in the world to do that and it's very entertaining for us, for sure!'"
Ronald Coleman @ Likelihood of Confusion, commenting on the tattoo artist suing NBA star Rasheed Wallace for displaying his copyrighted work in Nike ads: "Rasheed is a money tree and this guy wants to snip off a branch because he fortuitously got to carve something in the bark. He is seeking rent. There's no right or wrong about it, really, but the rules we decide on probably should address the almost certain expectations of both sides that the deal was a tattoo for $450 -- not a one-time license for a 'graphic.'"
Copyright guru/prolific Sivacracy author Ann Bartow, commenting on WB's planned remix of the Looney Tunes characters, the "Loonatics": "Cripes, can't the copyright maximalists do something about this travesty? :>)"
Prankster/author/professorKembrew McLeod, describing his adventures in trademarking the phrase, Freedom of Expression®: "When talking to reporters who responded to a press release I sent out, I played the quasi-corporate asshole to Brendan's indignant anarchist underdog, spouting poker-faced lines such as 'I didn't go to the trouble, the expense, and the time of trademarking freedom of expression® just to have someone else come along and think they can use it whenever they want.'"
EULA criticEd Foster, commenting on EFF's defense of three programmers against a Blizzard Games EULA that forbids reverse-engineering even though that's a fair use under federal copyright law: "The only things that are at stake in the case are open source programming, the concept of fair use, competition and innovation. Hey, no pressure, guys."
Annalee Newitz, encouraging those fed up with EULAs to do something about it: "With consumer activism, as well as actions that push our legislatures and courts to change consumer protection laws, we can prevent corporations from taking away our rights one mouse click at a time. If you have been harmed by a EULA, or threatened with legal action because of one, EFF wants to hear your story. Email us at EULAharm@eff.org. "
LawMeme blogger/Creative Commons & EFF alum/EULA criticJames Grimmelmann, sharing the terms of the Best. Clickwrap. Evar: "'Incoherence Copyright (c) 2004-2005 Greg Hazel and Steven Hazel. All rights reserved. By installing this software, you agree that you have seen this copyright notice.' And that's it."
Nobody's denying that the papers own this content. And they do realize some revenue from paid access to the archive content as well as database services such as LexisNexis. The argument revolves around what it means to be a source of record if that record only exists for a short time. I doubt many people dig through the archives of blogs - even Copyfight. But the fact that the archives are stable means that search engines can find and index the content. It means that the cross-referencing that makes the Web a vital peer communications medium can continue. But many newspapers continue to stand apart, protecting what may be in fact a tiny revenue stream rather than realizing the gains of being the source of record on the Web.
In my blogging I try very hard not to cite NY Times or Boston Globe (boston.com) stories because I know they'll go away. There are other sources, such as sfgate.com, which I consider equally authoritative and much more blog- and Web-friendly. Given the chance, I'll put up a link to them instead. Does that drive traffic and revenue for them? I dunno. But it sure as heck doesn't drive any for the gray lady.
I wrote TinyP2P to illustrate the difficulty of regulating peer-to-peer applications. Peer-to-peer apps can be very simple, and any moderately skilled programmer can write one, so attempts to ban their creation would be fruitless.
A method of styling hair to cover partial baldness using only the hair on a person's head. The hair styling requires dividing a person's hair into three sections and carefully folding one section over another.
Inventors: Smith; Frank J. (233 Cosmos Drive, Orlando, FL 32807); Smith; Donald J. (517 Brockway Ave., Orlando, FL 32807)
Appl. No.: 643681
Filed: December 23, 1975
Good Santa: "So in the spirit of the times (sussing great gift ideas), I've convinced an old friend, and my former Dean, to spend a couple days in this space talking about his new book, Perilous Times. Starting Wednesday, Geof Stone will be blogging here about the book. It is a great and amazing history, both optimistic and depressing. It will be Geof's first time blogging, so please make him welcome.
And were I to use this space to self-promote, I might point to Businessweek's pick of the top ten books of the year. But I won't waste your time with that."
Bad Santa: "In their zeal to stop people from using their legitimately purchased content, [some] companies have gummed up their media with so much copy-prevention garbage that it's practically impossible to watch or listen to anything at your leisure. You might as well wrap your digital media presents in chains.
And then, after you eagerly unchain your presents, get ready to see a lot of contracts called end user license agreements (EULAs). ...Why would I want to give my sweetie a neat entertainment device or program if it might spy on him or her or simply stop working if he or she tries to run it in a nonapproved player?"
We've been waiting for an active, successful "GeekPAC" for years, and now we've got IPac, an intellectual property PAC that focuses like a laser beam on a worthy goal: bringing constitutional balance back to copyright law. But some supporters worry that in supporting candidates who support balance, they might also inadvertently support other, not-so-great things.
"There are many candidates out there who may stand for the copyright fight but may be against personal beliefs and views concerning our society and politics," writes a supporter. "This, for me at least, presents a moral dilemma. Though I understand and agree with being non-partisan, how can I vote for someone who is against my social and moral beliefs, and how can we know that we are voting into office the best person for a job based on one area of concern?"
It's a good question, and IPac's Matt Stoller has an good answer. The organization encourages you to support IPac in any case, of course, but if you're uncomfortable with that, give selectively.
"As election time approaches, we will send you notices on who we endorse, and the reasons why we endorse them," writes Matt. "You can choose to give to specific candidates at that time, and though IPac will have no control over where the money goes, those candidates will know that you care about the issue of copyright reform. This gives you the advantage of being able to control for ideological factors and isolate your donations to those with whom you are politically comfortable."
Giving to IPac means you're going to give to a political campaign -- and no one has control over what a candidate will do once elected. IPac will help you learn about the candidates beforehand, and you can "control" for other factors that way. That's all any group could do to help ensure that your money is going in the right direction. The advantage of giving through IPac is that your candidate will know it's because you support balance in copyright law.
It's a short, one-sentence blog post + a link, à la Kottke remainders (see below for an example). We'll be using "blink" posts here at Copyfight to share links to articles, resources, and websites of interest that do not necessarily require paragraphs of context or analysis. Enjoy!
There are two solutions to this overEULAfication problem. A court could throw out this kind of egregious EULA, or at least narrow its scope. Alternatively, users could raise the price of this behavior by refusing to use overEULAfied products. Realistically, this will only happen if users are given the tools to do so.
I would love to see a "EULA doghouse" site that listed products with excessive EULAs, or that rated products by the content of their EULAs. At the very least, EULA evaluation could become standard procedure for people writing reviews of software products.
Later: James Grimmelman: "This agreement, whether characterized as a 'license' to use Gator's copyrighted software or a 'contract' between you and Gator, is still a manipulative, low-down, dirty, no-good document."
Later #2: Edward Felten: "I would love to see a 'EULA doghouse' site that listed products with excessive EULAs, or that rated products by the content of their EULAs. At the very least, EULA evaluation could become standard procedure for people writing reviews of software products. Unfortunately, there hasn't been much progress on this front."
Remember when the Motion Picture Association of America (MPAA) proudly debuted its copyright "education" campaign for school-age children? There was a handy classroom booklet entitled "What's the Diff?" in an evident attempt at kidspeak. And the kiddies already had a wascally weasel mascot, which, if you took the booklet's "lessons" at face value, the Business Software Alliance (BSA) blatantly stole from Walt Disney Comics.
Now, Downhill Battle has published the inevitable rejoinder, sans tangible condescension. Kids who can use Google (know any?) will able to check it out and absorb its lessons -- including how best to poke fun at transparent corporate propaganda.
This isn't a true copyright counter-curriculum, of course, but it makes a valuable point: kids aren't stupid. There are subtleties in copyright law, and feeding children a cartoonish "dumbed down" version will only decrease -- not increase -- the "respect for copyright" that the MPAA and BSA want so dearly to cultivate.
Bonus link: fellow Copyfight author Aaron Swartz details his encounter with the copyright police at Stanford (scroll down to "What the F***k Is Fair Use?"):
[Stanford Senior University Counsel Lauren Schoenthaler ] gripes a little about a 2005 state law making filesharing a crime, which she thinks is unnecessary. But her real purpose is to "get the word out on the DMCA." She claims the DMCA says you can't fileshare and, furthermore, permits copyright holders to track the Internet for people sharing. (Neither of these are true. When contacted by email, Ms. Schoenthaler defended the statement by saying that while it is "less than precise" but communicates the "big picture." This seems an odd position for a lawyer.)
In what has to be among the most bizarre-yet-cool trademark infringement settlements ever, Postal Service, the pop sensation whose song is covered on the excellent Garden State soundtrack, will be granted free license to use the name "Postal Service" in exchange for working to promote using the mail. Reports the NYT (reg. req.):
Future copies of the album and the group's follow-up work will have a notice about the trademark, while the federal Postal Service will sell the band's CD's on its Web site, potentially earning a profit. The band may do some television commercials for the post office. The group also agreed to perform at the postmaster general's annual National Executive Conference in Washington on Nov. 17.
It's interesting to compare/contrast this solution to the one proposed by the evidently clueless garbage collection company Sunset Scavenger, which has forcedWide Hive Records to change the cover and title of the DJ Zeph CD, "Sunset Scavenger." DJ Zeph might have helped Sunset Scavenger improve its profile; it sure wasn't going in the other direction.
Later: James Grimmelmann, who evidently was thinking the same way about this, but 4 days earlier: "Americans who buy stamps, a tiny bit of your money is going to hire some musicians to play a show. San Franciscans living in the Sunset, a tiny bit of your money is going to sue a musician and force him to pay to reprint an album. Which of these two seems like a better deal?"
The Lawyers - ElectionLawNews.com
Brought to us by the Moritz College of Law at Ohio State University, this site plans 'round the clock coverage starting today until...well, none of us are sure about that, are we?
The Indian Chief -- er, the Pollster - Electoral-vote.com
This is a one-man operation, and the one man, Andrew Tanenbaum, will be staying up all night on Election Day to give us the latest news on which candidate has captured which state.
One last pointer, to Marty Schwimmer's post on common-sense steps to take as you prepare to vote. Nice to have that information in one spot.
Speaking of interesting news items, you might also want to check out The Regular, by the good people at Downhill Battle. It debuted today, and aims to be the "Slashdot of politics" -- covering everything from the presidential debates to IP activism. I can't tell yet how it's gonna work -- but I wouldn't put it past these guys to succeed.
* Help EFF Fight for the Freedom to Innovate - Give to the
BnetD Defense Fund!
Fair use was recently dealt a harsh blow by a Federal Court
decision that held programmers liable for creating free
software designed to work with commercial products. The
court ruled that creating BnetD - open source software
that provides a way for gamers to play popular Blizzard
games online - violates the Digital Millennium Copyright
Act (DMCA) and the company's end-user license agreement
(EULA). According to the court, building alternative
platforms for legitimately purchased software should be
That's not good for innovation, and it's definitely not
what copyright law is for. The three authors behind BnetD
built something for free that added value to their
lawfully purchased software. This kind of creativity
shouldn't be stifled; it should be applauded.
If this decision is allowed to stand, other innovators
will have to be even more wary of anti-competitive
companies with hungry lawyers.
EFF is appealing the decision, and we need your help. Our
legal work in this case is done for clients who can't
afford representation, so we depend on people like you
for funding. If you value technical innovation and
balanced copyright law, please donate to the BnetD
Legal Defense Fund today:
It doesn't surprise me in the slightest that legendary Harvard law professor Charles Ogletree has admitted to mistakenly "lifting" passages from legendary Yale law professor Jack Balkin's published work.
It isn't because I believe, as the headlines will surely scream, that "plagiarism" is running rampant in the top echelons of Ivy League universities, or that "academic dishonesty" is on the rise. It's that so much academic writing is a product of what I would call collaborative authorship -- that is, researched, drafted, edited, rewritten, edited again, fact-checked, proofread, etc., by more than one person. A research assistant doesn't often get his or her name put on the book cover, but that doesn't change the fact that the work is collaborative.
Professor Ogletree says he read the final copy of the book with quote marks mistakenly deleted from the excerpted passage, but didn't recognize that the words were not his own. Again, no surprise. I certainly don't remember every word I've written over the past few years here at Copyfight, and writing a book often takes quite a bit longer than that. In addition, the editing process can take a piece of writing quite a distance from the original draft, and Professor Ogletree, scanning the six paragraphs quickly under a tight deadline, may have assumed that they were indeed his own -- only modified through the editing process.
Finally, it's likely that Professor Ogletree originally chose to include an excerpt from Professor Balkin's work in his book because it resonated with him. And because of that, the passage may indeed have sounded "familiar"-- the way a really good song sounds like you've heard it before. I find this perfectly understandable.
To be clear, I'm not suggesting that copying passages wholesale and calling it your own is okay. That's unethical. I'm simply pointing out that the fictions we create about authorship -- the solitary author who creates something out of nothing (rather than, say, responding to the work of his peers), who then "owns" his words the way he owns a car -- can lead to unfair judgments in situations like this. All artists are "borrowers" in some sense -- because we only have one world, under one sun, and there isn't anything new under it. There are variations we might call unique, but each of us is drawing from the same well. That's nothing to be ashamed of. Humbled, perhaps, but not ashamed.
If this were Capitol Hill, a PR professional might have advised Professor Ogletree to announce that "mistakes were made," so as to spread responsibility. I would say that "books were written" -- and that spreading responsibility in this instance is the only honest thing to do.
Using two new punctuation marks, the question comma and the exclamation comma: and respectively, inquisitiveness and exclamation may be expressed within a written sentence structure, so that thoughts may be more easily and clearly conveyed to readers. The new punctuation marks are for use within a written sentence between words as a comma, but with more feeling or inquisitiveness.
Seems that this is sort of an addition to the faddish punctuation known as the Interrobang.
...has evidently been broken by two companies that make and sell DVD chips to companies that make products that (take a breath) have features that fail to hew to Hollywood's standards for copy "protection." So the MPAA is suing.
As John Borland points out, the suits have nothing to do with copyright law. To avoid the kind of lawsuits that destroy companies like 321 Studios, the chipmakers essentially 1.) asked Hollywood for permission to make the chips, 2.) agreed to make them in the Hollywood-approved way, and 3.) signed on the dotted line. It's a lot cleaner than squabbling over messy, intractable stuff like arguments for "personal" or "fair use" of digital media.
Later: Wendy Seltzer weighs in @ Legal Tags: "DVD-player manufacturers are in a Catch-22: Don't sign the DVDCCA's restrictive contract, and you're sued under DMCA; sign, and you're contractually bound not to listen to customers' feature requests. Don't let anyone tell you these cartels aren't clever (PDF)."
Induce No More: "As we fashion a strategy to address this threat to innovation and technical progress, I would welcome thoughts on whether the Induce Act does in fact gut the Betamax decision, how its effect will be felt beyond devices, and whether it raises any First Amendment issues by potentially chilling speech (e.g., product reviews)" [Congressman Rick Boucher (D-VA) @ Lessig Blog].
A Blueprint for Better Copyright Law: "Just as the U.S. experience has been riddled with errors, [the Canadian recording industry's] notice and termination proposal would cut off Internet access for entire families despite questions about whether there is even grounds for a copyright infringement claim, in addition to doubts over whether the party responsible for the file sharing is the subscriber, a family friend who used the computer without permission, or perhaps a stranger who accessed the family's wireless Internet signal" [Michael Geist @ The Toronto Star].
Heat Turned Up on Streaming Video Patents (reg. req.): "Acacia wants to extract a toll on each and every lesson that a student learns over the Internet. I think that's despicable. Universities are under enough pressure in their budgets right now to try to pay for everything. The last thing they need to do is give a pound of flesh to some tech company that doesn't even make a product" [Jason Schultz, to the Washington Post].
Farenheit FBI: "Do you think that the FCC has the authority to extend CALEA to the Internet, given that Congress explicitly rejected that notion a decade ago?" [Declan McCullagh to Attorney General John Ashcroft, @ CNET].
EFF CALEA FAQ: "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."
Rob Pegoraro, in a Washington Post article indicating that the public is finally waking up and smelling the broadcast flag: "Left on its own, the market could give TiVo's system its appropriate reward. Except we don't have a free market in digital television -- the FCC guaranteed that by approving the broadcast flag.
The MPAA and the NFL phrase their objections as reasonable attempts to err on the side of caution. 'We're asking them to just wait awhile, let's think it out more thoroughly,' Attaway said.
But if a programmer or an engineer with a bright idea has to go to Washington, hat in hand and lawyers in tow, to request permission to sell a better product -- and is then told 'just wait awhile' -- we are on our way to suffocating innovation in this country."
Richard Harpel, director of federal relations for the National Association of State Universities and Land-Grant Colleges, in a Texas Online article on universities finally waking up (PDF) and smelling the Induce Act: "Our main concern of the bill is not so much a specific problem that we could put a finger on, but instead general concern of a global nature in some of the terminology present in it. It could be interpreted by some court as a violation the way the language reads now -- at the very least, it could be a mischievous opportunity for people to make false claims."
Ernest Miller, in an Importance Of... post on the Bush and/or Kerry camp (not) waking up and smelling the copyfight: "Leftist copyfighters are unlikely to switch votes because Bush promises to stick it to Hollywood, and conservative copyfighters are unlikely to switch if Kerry turns on his Hollywood money donation machine. In such a situation, why should a politician stake out a clear position? Kerry will likely talk about protecting and promoting innovation, while protecting the rights of copyright holders and creative artists.
These are important issues, of course, but that doesn't mean they will be treated as important. Certainly, the copyfight won't be treated as important this election cycle. But that doesn't mean we should stop talking about these issues and pressing the campaigns on them."
What was my role amid all this change? Every day I worked to make sure the American movie could move freely and competitively, unrestricted and protected throughout the world. I believe I had some modest success doing just that....What's left to do? The highest priority is to corner and fight the dragon of movie thievery. It's a battle we will win new, secure technology, plus changes in public attitudes and more enforcement of copyright laws, will bring moral serenity to the marketplace soon.
Too bad American technology didn't have nearly the competitive freedom, thanks in significant part to Valenti. In any case, let us hope that his prediction here is accurate:
Which of my accomplishments will last? Probably the 36-year-old (come November) movie-rating system, which not only frees filmmakers from arbitrary rules but, more important, helps parents guide their moviegoing children.
So perhaps Jack Valenti acknowledges that laws like the DMCA and Sonny Bono Copyright Term Extension Act won't last.
The link to Jack's bio page on the MPAA's website is no longer there, but the somewhat-broken page is still up (A Look at Jack Valenti). Is the MPAA getting ready to put up a tribute page?
MIT's Technology Review makes an important point regarding software vs. music/movie copyright infringement (Can Peer-to-Peer Stop Software Piracy?). If you're downloading warez, you never know what you're installing on your system. Could be the game you want, could be a trojan. There are no guarantees. This means that software is better positioned to fight internet infringement.
On its face, offering to sell a piece of software in a forum where users can obtain the same product for free sounds like a futile endeavor. However, the illicit nature and reputation of these networks makes these sales more likely. Heres why: With the possibility for viruses so high when downloading a piece of software from these networks, consumers may be more likely to purchase software from a trusted source. If youre an intellectual property owner, you have to make it as easy to legitimately acquire your product as it is to swipe it, says Garland. People dont care if an MP3 file is Sony sanctioned. But if youre going to do your [finances] with a piece of software, you want to get the real McCoy.
Alan Wexelblat @ Blogbook asks whether calling the recording industry a "cartel" is no longer a slur but instead simply accurate:
Continuing to call the music industry a "business" is to fly in the face of reality. They've already been convicted of collusion and price-fixing (has anyone gotten their settlement check yet? I haven't) and now they're accused of blacklisting. These are the classic actions of a cartel (drugs, crime, oil) that seeks to retain its stranglehold on its chosen domain.
In order for the Cartel to continue to maintain that the P2P nets are illegitimate, they have to prevent those networks/companies from having any arrangements with legitimate companies. It's a lovely Catch-22 you see - since we won't let you have our music legally, any music on your net must ipso facto be illegitimate. Roll out the next round of lawsuits, boys!
The broadcast flag mandate is part of Hollywood's plan for what it considers the ideal transition to a future with high-definition television (HDTV). The mandate is aimed at locking down use of the high-definition signal so that copyright holders can exert maximum control over content. Unfortunately, that kind of control doesn't recognize the traditional fair uses we make of copyrighted material, including educational uses and good, old-fashioned discussion and criticism (think The Daily Show). In addition, by forcing manufacturers to remove useful recording features from television products and forbidding others, the mandate directly treatens innovation and free competition. As EFF's Seth Schoen put it when the mandate was adopted, "The FCC has decided that the way to get Americans to adopt digital TV is to make it cost more and do less."
EFF's response? Use the time we have left to build broadcast flag-resistant personal video recorders (PVRs) that do more and "cost" less -- at least in the sense that they won't rob us of our current ability to time-shift and lawfully manipulate media.
Spearheaded by fellow Copyfight author Wendy Seltzer, EFF's Digital Television Liberation Project will use these PC-based PVRs as benchmarks, comparing the capabilities of the general-purpose computer to the limited subset of viewing options broadcast flag-compliant devices can offer. "When people see how many more features today's PVR has than next year's, we think they'll be as puzzled as we are by the FCC's choices to 'advance the DTV transition'," says Wendy in the official press release.
So what happens after we figure out how to build these PVRs? We go "open source," creating a user-friendly recipe -- or even an entire cookbook -- and sharing it widely.
We've done a bit of that before in this forum, but ILAW alum Clancy Ratliff and others have since contributed quite a bit more to the discusssion. Here's a quick overview for those of you who missed the action:
Walking the Walk: Copyfighters and Their Weblog Software: "Now, I don't want this to sound like some group admonishment/harrassment. I'm sure everyone has a good reason why they use non open source software. But that mindset is one of the difficulties of the copyfight: convincing the non-copyfighter that taking the extra effort to use open source or publish open content is worth the effort in helping to build a free culture. So, I hope copyfighters will see that in publishing their discourse on the web that it's important not just to talk the talk, but also to walk the walk."
Defining "Copyfighter": "I define it rather broadly: To me, a copyfighter is someone who engages in conversations on authorship and intellectual property...Moreover, copyfighters look at our current copyright model -- automatic copyright, life + 70 years as soon as the content is put into a fixed medium -- and express some kind of qualm about it; they think it should change in some way."
Open Source Party Line: "Those who've studied the radical tradition might acknowledge that the first sign a cultural or political movement has become genuinely widespread is its politicization in the development of a party line...I might suggest that drawing a party line -- telling people that if they're in favor of open source, they have to use open source software -- is a fine way to get people to say, 'OK. I guess I'm not in favor of open source, then.'"
Alienating Potential Allies: "Yes, I think that generally, people should use open source software and should allow derivative works of their content if possible, but not because someone's a poseur if he or she doesn't do those things, or that it's an all-or-nothing matter."
Why offer technology that empowers people to do cool things when you can hobble it to force them to buy cool things?
So asks a report by Mako Analysis on SymbianOS phones, which are evidently too smart for their own good:
New mobile devices based on a version of the Symbian OS are a serious threat to mobile operator revenue streams, according to consultancy Mako Analysis. Savvy users can use devices running on Symbian's Series 60 operating system (OS) to completely bypass a range of services that are normally charged for by their mobile operator, the UK-based consultancy warned on Monday. While the threat is currently minimal, the loophole has the potential to cause major headaches for operators.
A "savvy user" of our acquaintance responds: "Open handsets let users choose their applications, which have to compete on pure value. Sure, lock-in is nice for sellers -- until buyers bypass the locked-in route altogether. Companies who take the path Mako recommends are just clearing the way for others to listen to their (former) customers."
Today premieres the new Mary Kate and Ashley movie about the Manhattan misadventures of a pair of twins with dissimilar characters, New York Minute. According to the marketing campaign, hilarity ensues.
Every formulaic comedy needs an incompetent antagonist and New York Minute has two. There is the excellent Eugene Levy as a truant officer obsessed with catching one of the twins. Of interest to Copyfight readers, however, is the other adversary, a Chinese gangster. Why is this criminal after the twins? According to the review in the Hollywood Reporter, the gangster seeks a microchip the girls accidentally acquired (Review: New York Minute):
It's interesting to track what constitutes villainy in Hollywood movies today. Whereas once villains were bank robbers, drug dealers, white-slave traders, psychotic losers and abusive husbands, this movie's villains are intellectual property thieves as the microchip contains pirated music and movies.
Those who have pushed for copyright maximization over the past decade or so have been able to do so unfettered by inconveniences like public deliberation or even serious attention.
The public interest side has until recently lacked a vocabulary, and agenda, and a bibliography. It also lacked a lobby and a vocal constituency. So the maximalists those who strive for a permission (and payment) culture have smiled through these radical years, knowing that nothing anyone says will disrupt their march toward complete privatization of culture.
Until now. Now maximalists are panicking. People everywhere object to their excesses and tactics. People are reading books that outline the values, the movement, and the strategies that might help free up the symbols, words, and ideas that we all rely on in a Democratic republic and a creative economy.
I know this because the maximalists are sinking to ad hominem attacks.
My EFF colleague Cory Doctorow points to a disturbing/amusing interview with MPAA "spokesmonster" Jack Valenti in which Valenti tells an MIT engineer that the DMCA and broadcast flag are okay because you can't aim "public policy" at a mere "thousand" engineers, and gets flustered when confronted with the news that there are two million Linux users with no legal way to play legitimately purchased or rented DVDs using their systems:
TT: [You] said four years ago that people under Linux should use one of these licensed players that would be available soon. They're still not available -- it's been four years.
JV: Well why aren't they available? I don't know, because I don't make Linux machines.
Let me put it in my simple terms. If you take something that doesn't belong to you, that's wrong. Number two, if you design your own machine, you can't fuss at people, because you're one of just a few. How many Linux users are there?
TT: About two million.
JV: Well, I can't believe there's not any -- there must be a reason for... Let me find out about that. You bring up an interesting question -- I don't know the answer to that... Well, you're telling me a lot of things I don't know.
"Vendors such as Creative, Archos, Dell and Apple have all created hard drive music players that can hold up to and beyond 5,000 songs," the report states. "Hard drive players with such large capacity for content go above and beyond not only the music that most consumers want on their portable music player, but also beyond the digital music that they own."
In other news, Jupiter will apparently come out with reports concluding that, for computers, "640K of memory should be enough for anybody" and that, for transportation, "the human body was never meant to exceed travel at more than 30 miles an hour."
"What we are missing are two things: a leader to organize the fight and a coherent movement to rally around. The Dean campaign had Joe Trippi managing a swarm of volunteers and creating an army from the ground up. We need a Joe Trippi to define our copyfight, to create something that people can say 'I support the copyfight' on their bumper-stickers or their lawns or to their coworkers."
I'll have more to say on this later; for now, check out Mr. Hotelling's post in its entirety, and feel free to share your thoughts.
Erik Heels, noting that he'd been classified in Copyfight's blogroll(s) under "Linkable + Thinkable" rather than "Copyfighters," asks: "Can an attorney who makes his living practicing intellectual property law also be a copyfighter?"
He goes on to say that he believes that the goals of copyright law are "valid and good," but that the Copyright Act "has been tweaked and modified far too much." He classifies both the Sonny Bono Copyright Term Extension Act (CTEA) and Digital Millennium Copyright Act (DMCA) as bad law, and finds the trend toward more rights for corporations and fewer for individuals "troubling."
"I don't always agree with other engineers, lawyers, or business people, especially if I feel they don't understand the 'how' of the technology, the 'why' of the law, or the 'so what' of business. And don't get me wrong, I like being called 'linkable and thinkable.' But if 'copyfighter' means 'one who fights against bad copyright laws (and for smarter business practices),' then I am a copyfighter."
I couldn't agree more. An excellent definition. Welcome to "Copyfighters," Erik.
I've written a short post about its cancellation over @ EFF's Deep Links, discussing just how insincere the RIAA is about helping music fans come in from the cold. How so? The group announced it had discontinued "Clean Slate" in the middle of a court hearing over the program, in a transparent effort to make Ira Rothken's case against it moot -- while at the same time rejecting proposals like EFF's for Voluntary Collective Licensing, which would turn millions of file sharers into paying customers.
Dan Gillmor, a fellow I generally agree with, has written a pean to the decades-long president of and lobbyist for the MPAA, Jack Valenti, who is soon to retire (Valenti, Right and Wrong, Is a Man to Respect). Gillmor's article finds much to admire in the man, finding him a fervent defender of the First Amendment and personally charming. That I grant, but much of the characterization is over the top.
"Cypherpunk," a frequent poster on copyright-related weblogs, has the following to say in a response to Jason's announcement about the new Copyfight over @ LawGeek:
"I'm skeptical that you'll be debating, at least not with each other, kenetically or otherwise. You guys are a group mind. Have you ever disagreed with [eachother] on any issue?"
Jason's response was to point out that he and Ernie disagree all the time about IP issues and peer-to-peer technology, but often in private--and that this is part of the reason why he thinks Copyfight will make for an interesting, more public discussion space.
Ernie himself then posted a reply: "Cypherpunk, I'm surprised at you. You know I march to my own drummer and frequently criticize the position of EFF, for example."
As did Wendy: "Ernie and Jason are wrong. We always agree on everything."
On a serious note, we do expect to have respectful debate here--the kind that helps us to clarify our own positions as well as to gain perspective on the "other side" of a particular issue. Beyond that, we hope you (Cypherpunk and others) weigh in as well.