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Copyfight--the Expanded Edition After mulling it over for a few months, I've decided to make Copyfight a group-authored weblog--and it debuts today. Copyfight has now MOVED TO A NEW URL and we'll be taking advantage of MT-powered features: trackback, comments, etc. Please adjust your blogrolls accordingly!
Joining me at the new Copyfight are (drum roll, please):
Elizabeth and Jason work on cutting-edge legal issues in pursuing litigation @ EFF and Stanford's CIS. Both have been part of the legal challenges to the Sonny Bono Copyright Term Extension Act, which extended the term of copyright by 20 years.
Jason is now working on a number of cases at EFF, including engaging the ongoing fight against DirecTV--the satellite TV giant seeking to establish an unfortunate "guilt-by-purchase" theory in its campaign against people who buy smart-card technology.
Elizabeth has most recently been working on Golan v. Ashcroft and representing Open Source Yoga Unity, a group of yoga instructors challenging the claims of Yogi Bikram Choudhury that he can copyright a yoga routine and sue other yoga instructors for teaching it.
Increasingly well-known in the blogosphere and author of his own Corante weblog, "Importance Of...," Ernest is a fellow at Yale's ISP and former Editor-in-Chief of its must-read blawg, LawMeme. Last year, he testified before the U.S. Copyright Office for an exemption to the controversial Digital Millennium Copyright Act (DMCA).
Aaron, a co-author of the RSS 1.0 specification, is Metadata Advisor to Creative Commons--that is, he helps make its innovative licenses work. As a Semantic Web developer, he's a member of the W3C's RDF Core Working Group.
Wendy, an IP attorney @ EFF, was key in getting Openlaw--an experimental project that helped the Internet community contribute substantively to the Eldred challenge--off the ground. A longtime Berkman Fellow, Wendy is founder of the innovative Chilling Effects Clearinghouse, which exposes the ways that intellectual property law is abused to silence legitimate speech.
Needless to say, I'm extremely pleased--honored--to have this group aboard at Copyfight. It will be exciting to see what discussions this mix will yield. I invite you to tune in here, and, if you're so inspired, to use our new comments feature to join the conversation. Welcome, all! Posted Saturday, March 20, 2004 Voluntary Collective Licensing--Got the Picture?
Very, very cool. Thanks, Ren. Posted Friday, March 19, 2004 FCC Moves to Regulate Hate Speech? Ernest Miller has (yet) another must-read today--a lengthy analysis of the FCC decision (PDF) on the Bono/Golden Globes "f-word" incident (see the FCC press release [PDF]).The news in a nutshell? In the wake of Janet Jackson's "wardrobe malfunction," the FCC has reversed its previous position on Bono's use of the word "fucking"--as in "this is really, really fucking brilliant." The use has now offically been deemed "profane." Writes Ernie: Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression.Read the whole thing. Xeni Jardin @ BoingBoing: "Last night in LA, I went to a big fucking party thrown by the fucking LA Press Club to show some fucking support for Sandra Fucking Tsing Loh, snarky host of "The Loh Life." The radio humorist was abruptly sacked from KCRW after her fucking engineer failed to bleep a certain fucking four letter word from a fucked-out taped comedic monologue. Fuck!" Later: Jim Tyre (via email): "It's not a good ruling, but: (1) it was based primarily on indecency, profanity was almost an afterthought; and (2) there was no fine, though the FCC was sending a message, as it were, about what it might do in the future." Trump Now in the IP Biz Donald Trump is seeking ownership of a brand new property. Nope, not another skyscraper/casino. He wants the catchphrase from his new hit show, The Apprentice. That's right--Trump wants to own the words "You're Fired."ABC News reports that Trump is looking to "copyright" the phrase, which of course you can't do. You can, however, trademark a phrase, and in this Trump may very well succeed. The Reuters piece includes a rare touch of evidently borrowed humor: "Trump might have competition: A search of the PTO's database revealed that three other applications for 'You're fired' have been filed. [Wait a beat.] No applications appear to have been filed for 'You're outsourced,' however." Marty Schwimmer: "You're Fired? Where are the catchphrases of yesteryear? Dyn-o-mite? You Look Fabulous? Two Wild and Crazy Guys? Aaaa-yyy, the Fonz? Keep on Truckin'? Hasta la Vista Baby? Cowabunga? Go Ahead, Make My Day? Where's the Beef? Kiss My Grits? Isn't that Special? A Kinder and Gentler Nation?" Later #2: Mary Hodder: "I think Fuck may still be available [for trademark] too. Or at least Fuck the FCC." Posted Thursday, March 18, 2004 Ernest on CA Anti-Piracy Bills A marvelously thorough smackdown of the two terribly misquided anti-"piracy" bills introduced before the California legislature. The bills would require anyone who knowingly disseminates commercial recorded or audiovisual material over the Internet to mark it with his or her name and address or face a possible one-year prison sentence. It's a very, very bad idea.Writes Ernie: EFF notes the pernicious effects on children's privacy...There are many more problems with this bill as well. [...]More from Tech News World. Siva on Free Culture's "Scholarly Partner" Siva Vaidhyanathan has a question of interest to copyfighters of the scholarly persuasion: What should we call the emerging field of study that recognizes the architectural element of expression in the networked environment? Or, as Siva puts it, what do we call the "scholarly partner" to the Free Culture movement?Siva's trial balloon is "Critical Information Studies," a term he suggests might encompass work by economists, communication scholars, lawyers, computer scientists, librarians and others to interrogate the "structures, functions, habits, norms, and practices that guide global flows of information and cultural elements." Central to this field of inquiry, writes Siva, is a concept many of us have begun to call "semiotic democracy," or the ability of citizens to "employ the signs and symbols ubiquitous in their environments in manners that they determine." To my view, Siva's term works rather well--I've seen "critical media studies," but that doesn't connote information/networked environments specifically. What do you think? If you have a thought or two to share, do let me or Siva know. Posted Tuesday, March 16, 2004 Score One for the Public Domain Kudos to the talented group of freedom fighters @ Stanford's Center for Internet and Society for scoring this important victory in the ongoing Golan v. Ashcroft case.Help a Library Win a Copyfight [This post title pilfered directly from BoingBoing's open pockets. Or did Cory steal it from me? Dang. This IP stuff is so confusing.]The wonderful Jenny Levine, a.k.a. The Shifted Librarian, has the full scoop. Snippet: So here we have the little Library that could and did (David) that can't get the attention of Warner Brothers (Goliath) just so they can show the fantastic video they did for their staff in-service day (and let me tell you, the video TOTALLY ROCKS!). Would SJCPL make a single dime off it if they post it online? No. In fact, it would probably cost them loads in bandwidth. Posted Monday, March 15, 2004 Stupid White Men and Semiotic Democracy Siva Vaidhyanathan, analyzing today's NYT piece on the attempt by the publishers of Michael Moore's Stupid White Men and Other Excuses for the Sorry State of Our Nation to force the publishers of How to Get Stupid White Men Out of Office to change the title of the book:"The problem here is not just one of rabid efforts of protection. It's also a matter of the conflation between these two distinct areas of law that we unfortunately (and harmfully) combine under the meaningless phrase 'intellectual property.'Michael Moore himself, quoted in the piece: "I bumped into somebody that was working on the project a few months ago and said it is important that the public not think that it was a book by me. But I am flattered that somebody would take something that I did and use it to create change." CA Attorney General = MPAA Sock Puppet? Xeni Jardin of BoingBoing fame has a Wired piece this morning suggesting that California Attorney General Bill Lockyer is using a peer-to-fear talking points memo supplied by the Motion Picture Association of America. The tip-off? A smoking MS Word document tellingly marked with MPAA metadata and invective. The document, purportedly a letter from Lockyer to a number of P2P companies, contains a not-so-veiled threat that unless they make more of an effort to warn users about the "legal and personal" risks of using P2P networks, the companies could face charges of deceptive trade practices: It is widely recognized that P2P file-sharing software currently is used almost exclusively to disseminate pornography, and to illegally trade copyrighted music, movies, software and video games. ...A failure to prominently and adequately warn consumers, particularly when you advertise and sell paid versions of your software, could constitute, at the very least, a deceptive trade practice. Fred von Lohmann, quoted in the piece, offers the obvious rebuttal: "The principle has no limit--you can use Internet Explorer to violate the law or unintentionally access pornography, so does [Lockyer] want to suggest that Microsoft is also breaking the law? Why stop at the Internet--should Ford be held liable for failing to warn drivers that exceeding the speed limit will expose them to citations?" P2P United, meanwhile, suggests--facetiously?--that the letter is a fake: "The letter contains so many factual errors concerning peer-to-peer technology and the allegedly disproportionate 'danger' that it poses to the public relative to other popular means of accessing and searching the Internet (e.g., Google or AOL) that it would seem unlikely to have been produced by your office." Later: Jason Schultz: "[The letter is] the more disturbing because [it] threatens the P2P companies with lawsuits that would be funded by state tax dollars. It's one thing for the MPAA to sue P2P companies on their own dime. To make the public foot the bill on behalf of Hollywood's millionaires doesn't seem to me to be in the public's interest." Posted Thursday, March 11, 2004 Where It's At As Derek Slater says, So many links, not enough time.For those similarly time-pressed, here's terrific one-stop shopping for debate over EFF's white paper on collective licensing, from the unstoppable Ernest Miller. Posted Tuesday, March 9, 2004 EFF Joins Suit to Stop Broadcast Flag Fred von Lohmann in an EFF media release about the new lawsuit to stop the broadcast flag: "The FCC's digital broadcast television mandate is a step in the wrong direction because it would make digital television cost more and do less, undermining innovation, fair use, and competition. The FCC overstepped its bounds, unduly restricting consumers and manufacturers when it issued its broadcast flag ruling." Later (March 10): ZDNet: "The broadcast flag controversy, while far less visible than the debates over peer-to-peer networks, is one of the key issues in the passage of traditional entertainment companies into the digital world." Victory for Fair Use--Priceless Jason Schultz: "Back in 2000, Ralph Nader ran a bunch of ads critiquing the corporate interests behind the Bush and Gore campaigns. To make his point, he used the style and some of ideas behind MasterCard's 'Priceless' ad campaign--specifically calling out the dollar amounts that corporate interests paid to candidates to secure their positions on the issues. [...]Today, after four years of discovery battles and summary judgment briefing, the trial court ruled that Nader's use was, in fact, fair." Food for Thought From Brother Ernest: Victory for EFF Creates Problems for EFF's Filesharing Solution.Posted Monday, March 8, 2004 Notable + Quotable Michael Geist, proposing that Canada take the lead in using blanket licenses to resolve the conflict over peer-to-peer systems (hyperlink, mine): "Unlike the U.S., which has more limited experience with collective licensing, the Canadian marketplace has a much richer experience with such approaches and could provide a fertile ground for a national pilot project to examine whether a peer-to-peer blanket licence is a realistic alternative. Moreover, last week the Supreme Court of Canada sent a strong message to the copyright community in a landmark decision in which it made it clear that it would interpret copyright law in a manner that balanced the interests of both creators and users." Michael Franti of the hip-hop group Spearhead, on the controversial proposed European Union Intellectual Property Rights Enforcement Directive (EUPR): "Prosecuting fans who share music files in order to prevent piracy is like outlawing sex to prevent pregnancy. [...] Fans, labels and artists alike are going to need to make changes in the way we buy, sell and market music, but the draconian nature of these laws is more of an attack on civil liberties than it is a solution to the changing times we are living in." Nancie Marzulla, president of the U.S.-based Defenders of Property Rights (emphasis, mine): "How can we translate the kind of property protections that exist in this country to other nations--especially nations that exist under Communist regimes, such as China? Negotiating Free Trade Agreements with strong intellectual property rights protections is a good start; so too is helping these countries to amend their Constitutions to include provisions protecting private property rights, such as China has recently indicated it is doing." George Scriban, on the article drawn from Larry Lessig's next book that appears in this month's Wired: "Movies, TV, cable, radio, in addition to making liberal use of the public domain, are all the stepchildren of piracy, having appropriated existing content for their own ends without permission. As is so often the case when we move from revolution to institution, once the peasants have occupied the castle they pull up the drawbridge behind them." Brad Templeton, on the push to develop intermediary control in peer-to-peer systems: "It's sad that the RIAA's crusade will cause people to modify P2P networks into non-P2P, and gain the RIAA nothing." Derek Slater, reflecting upon last week's Digital Music Forum: "I didn't understand why the third panel 'The Death of the CD?' had a question mark in its title--isn't it somewhat obvious that physical media will die? Yes, some people will still buy physical goods, and estimates do vary as to when digital downloads will supplant CDs. But, I thought, no one really looks at the growth of P2P and the online music services; the great cost savings possible online; and digital media and technology's flexibility, and thinks that CDs are here to stay for a long while, right?" Posted Friday, March 5, 2004 Voluntary Collective Licensing: the College Years Edward Felten, on EFF's proposal for resolving the conflict over peer-to-peer file sharing:It seems to me that if the EFF plan is going to happen, it will start with a deal between the RIAA and a university, in which the university creates a fund to pay out to copyright holders, in exchange for (a) free rein to do anything at all with copyrighted music within the campus (but not to distribute it outside the campus), and (b) permission for anyone, either on the campus or off, to transmit music to people on campus. Later: Ernest Miller, suggesting that employers might take advantage of an EFF-like solution to enable file swapping by the water cooler: "I can imagine many companies paying for filesharing licenses for their employees in bulk." Cato on Drawing Lines in Copyright Law If you know Cato, you may feel like you've already read this new piece by Adam Thierer on the proper approach to resolving conflicts over intellectual property on the Net. He advocates less "ham-handed" legislation, more "common law resolutions"--even to the point of (semi-) endorsing the RIAA's litigation campaign: [If] you're a broadcaster or a movie studio and discover that a handful of individuals are redistributing your products without permission or compensation, why not just sue them directly and avoid all this regulatory nonsense? No good answer was provided. What makes this all the more surprising is that such a model already existed in the lawsuits that the Recording Industry Association of America (RIAA) was filing against individuals accused of widespread copyright infringement.It nevertheless warms the cockles of my heart to hear someone besides EFF say that "[If] millions of average movie lovers like me are considered criminals for merely copying a few of their favorite movies or individual scenes onto a different disc, then something has gone horribly wrong with copyright law in America." The article--including brief discussion of the broadcast flag mandate and the MGM v. 321 Studios decision--here. Later: Dan Gillmor, whose cockles were likewise warmed, is predictably forced to tangle with anti-Cato trolls. Posted Thursday, March 4, 2004 User Rights Aren't Loopholes University of Ottawa law professor Michael Geist, the man behind the what is perhaps the single most valuable email list on cyberlaw issues, discussing a decision today by Canada's Supreme Court that demonstrates refreshing copyright sanity:As Professor Vaver, supra, has explained, at p. 171: User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.More from Professor Geist @ Dave Farber's IP list. Later (March 5): Plain language translation of the ruling by a reader @ Lessig blog: "Photocopiers don't infringe people; people infringe people." What Bunner Means--Or Doesn't Doug Simpson of Unintended Consequences just sent me a link to his analysis of the recent decision (PDF) in DVD-CCA v. Bunner, in which he concludes that:Check out the complete analysis here. Posted Tuesday, March 2, 2004 Ibid Here's my link to the many-times linked Larry Lessig post mortem on Eldred.Posted Monday, March 1, 2004 Doublespeak Quote of the Day MPAA head Jack Valenti: "If you buy a DVD you have a copy. If you want a backup copy you buy another one."Later: 321 Studios is launching a week-long campaign today to raise awareness about fair uses of digital media and to encourage people to stand up for it. Sez Wendy Seltzer in an EFF advisory: "The public's rights to fair use of copyrighted works should not disappear in the face of technological restrictions. To bring back copyright's balance, we encourage individuals to write to Congress and the entertainment industry about their expectations when purchasing movies and other media." Later #2: The San Jose Mercury News on the 321 decision: What Copyrights? Sure, you can hold a video camera up to the TV and make a poor-quality duplicate of a DVD. Or, with an eBook, write out a copy longhand. To the judges, that would satisfy fair use: There's no constitutional guarantee, they said, to make perfect duplicate copies. Such a narrow view, while pleasing copyright holders, denies consumers huge benefits of digital technologies. Movie studies and recording companies can write software protections that permit personal copies and other fair uses; they simply choose not to, and Congress, by banning circumvention technologies, has let them get away with it.(Via Frank Field.) IP v. Property, Bits v. Atoms Just after I included a post by Cardozo cyberlaw professor Susan Crawford in my latest Notable + Quotable, I found her sounding the same themes with regard to copyright and innovation in this NYT piece: "Bits are not the same as atoms. We need to reframe the legal discussion to treat the differences of bits and atoms in a more thoughtful way."Here's the report [PDF] that the NYT piece profiles; more from Professor Crawford, who co-authored it, here. Later: Ernest Miller, responding to Professor Crawford's Bits, Atoms, and Beethoven: We aren't at the beginning of an era where we numbly accept content. The beginning of that era was when Edison first set stylus to wax cylinder, the beginning of the era of mechanical reproduction. It was an era of unchangeable physical format that could only be produced and distributed efficiently en masse. That era is dying.Later #2: Mary Hodder culls excerpts from the co-authored report. Posted Sunday, February 29, 2004 Creativity Always Builds on the Past Creative Commons held a contest to produce a short video that clearly communicates its mission: to give creators a legal, hassle-free way to introduce shades of grey to an otherwise control-all-or-control-nothing, black-and-white copyright regime.Check out Justin Cone's winning entry: Building on the Past. Not only does it effectively convey CC's message, the medium has an appropriately central role: the video uses material from the Prelinger Archives, "re-mixed" to produce something wonderfully fresh. (Via Matt Haughey at Creative Commons.) Notable + Quotable A member of Mount and Stoelker law firm, on the size of statutory damages authorized by the Copyright Act: "Hmmm...what did Disney pay to get that?" (Via Dan Fingerman.)Cardozo cyberlaw professor Susan Crawford: "[During] the last 25 years or so we've adopted this prayerful, pure...approach to 'classical' music. We see and hear these works as unchanging and unchangeable. But that's not what they are--they're not frozen in amber, they're not things we're supposed to respect in the abstract. They change with the times. Maybe (here's the tie-in to innovation and intellectual property) we're in an era in which we're beginning numbly to accept that 'content' is just provided to us... [But music] isn't wallpaper, and you don't 'acquire' concerts. You experience them." Eben Moglen, via Frank Field via Groklaw: "The fundamental belief in fairness here is not that it is fair that things should be free. It is that it is fair that we should be free and that our thoughts should be free, that we should be able to know as much about the world in which we live as possible, and that we should be as little as possible captive to other people's knowledge, beyond the appeal to our own understanding and initiative. [...] If you think about it, it sounds rather like a commitment to encourage the diffusion of science and the useful arts by promoting access to knowledge." [More on the Harvard speech from which the above is an excerpt, by the Berkman Center's Mary Bridges.] Peter Hirtle, in a piece @ Stanford University's library website that makes explicit the role of personal and library copying in preserving our shared culture (or to put it another way, why we need an anarchist in the library): "Good preservation practice has often existed in a legal gray area. Libraries usually made three copies when microfilming long before the law gave explicit permission for the practice, and many radio programs have been saved only because individuals systematically taped them from the air, without the permission of the copyright owner.[31] Digital preservation resides in an even murkier legal gray area because of the fundamental need to copy digital information (one of the exclusive rights of the copyright owner) in order to preserve it." Via Lawrence Solum, U.C. Berkeley/Boalt Hall law professor Mark Lemley: "The traditional theory of IP is that the prospect of future reward provides an ex ante incentive to innovate. An increasingly common justification for longer and more powerful IP rights is ex post--that IP will be 'managed' most efficiently if control is consolidated in a single owner...Those who rely on this theory take the idea of IP as 'property' too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn't just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market." What to Do with Your $13.86 Been wondering what to do with that CD price-fixing settlement check burning a hole in your pocket? A few options:[X] - Buy a CD...just part of one to be precise, since they're so overpriced. Posted Friday, February 27, 2004 Bunner Acquitted in DeCSS Case-Again You recall that Jon Johansen was acquitted for writing/distributing software code that decrypts the data on DVDs--not only once, but twice?Andrew Bunner has just joined the club. The DVD-CCA previously asked to end its lawsuit against Bunner over posting the DeCSS code, but was denied. Today, the California Court of Appeal for the Sixth Appellate District found [PDF] that the injunction against Bunner was improper, that it inappropriately burdened speech and that the DVD-CCA was not likely to succeed on the merits in the case. The injunction has been reversed and Bunner awarded costs. Says EFF's Gwen Hinze: "Today's Court ruling that there is no evidence that CSS was still a trade secret when Mr. Bunner posted DeCSS vindicates what we have long said; DeCSS has been available on thousands of websites around the world for many years." Richard Weibe: "This long-delayed but gratifying victory sends a strong message to those who would try to misuse intellectual property laws and corporate power to stifle free speech on the Internet." Later: Jason Schultz culls a number of interesting bits from the ruling. Later #2: Ernest Miller: "One very interesting aspect of the decision is that there is no mention of the DMCA and how it relates to the trade secrets law." Later #3: Edward Felten: "This is a sensible ruling. The only surprise is that it took the California courts so long to reach this conclusion." Later #4: More from Robin Gross @ IP Justice. Tell Us How You Really Feel Veri$ign executive Tom Galvin, on his company's filing a lawsuit against ICANN: "Working the ICANN process is like being nibbled to death by a duck. It makes no sense, and in the end, you're dead in the water." (Via Ditherati.)Later: Thomas Roessler: "Essentially, it seems like the new registry services issue has just been moved from the GNSO to the court system." More @ ICANNWatch. Later #2: James Grimmelmann @ LawMeme: "The most evil organization behind the 'Net is suing the most inept." DVD Copy Minus That's Wendy Seltzer's name for the 321 Studios "DVD Copy Plus," if stripped of its ripper.Notes The Register, in an article about the "DVD X Copy," so stripped: "The irony is that the open source DeCSS code is widely available on the Internet, and it won't be too hard for users to locate ripper software that can extract files from a DVD. The new versions of DVD X Copy will then be able to burn those files to a fresh disc, as before." Posted Thursday, February 26, 2004 David Weinberger, Berkman Fellow Bravo to the Berkman Center for snagging David Weinberger as a fellow!This makes the second Berkmanite to blog @ Corante. If you haven't yet read David's work, here's a (highly recommended) taste. SETI@Home for Online Censorship The Berkman Center has been working on this one for a good long time--extremely exciting to finally see it launch:The number of states seeking to control the Internet has risen rapidly in the recent years. Mustering powerful and at times compelling arguments--"securing intellectual property rights," "protecting national security," "preserving cultural norms and religious values," and "shielding children from pornography and exploitation"--extensive filtering and surveillance practices are being proposed and put in place to curb the perceived lawlessness of the medium. [...]Via the "must-syndicate" Berkman blog. Posted Wednesday, February 25, 2004 EFF on P2P: A Better Way Forward For those of you who haven't yet seen it, here is EFF's white paper on how to resolve the crisis over peer-to-peer file sharing: A Better Way Forward: Voluntary Collective Licensing of Music File Sharing.More to come. Later (February 26): A group textual analysis via Quicktopic is now underway, whilst Big Media sez... Later #2: From the ever-helpful Derek Slater, two stop shopping for (1) background and (2) terminology in the debate. Later #3: From the ever-thoughtful Ernest Miller: First thought: EFF finally agrees with me (mostly)! Copyright Land Grab - Discuss, Part II Two posts from Larry not to be missed:
Copyright Land Grab - Discuss Mikael Pawlo of Greplaw has yet another excellent interview--this time with Jessica Litman (hyperlink, mine):Greplaw: Which are the three most important trends in copyright legislation today?Speaking of which, there's a brand new spot for relentless discussion: an open forum on the history of intellectual property in the U.S., led by the wonderful (or should I say gifted?) Lewis Hyde, Berkman fellow and author of The Gift: Imagination and the Erotic Life of Property. Snippet from Mr. Hyde's introduction to the dicussion: My own interest in this history began with the surprising lack of debate some years ago when copyright term extension was pending. There seemed to be almost no public sense of why it might matter to preserve a lively public domain. One was led to wonder if there weren't historical roots to the public domain's lack of presence in our political and economic discourse. If that is the case, might not an understanding of this history be a useful tool for those of us trying to shape current policy? Posted Tuesday, February 24, 2004
Posted Monday, February 23, 2004 321 Steps In Eldred Mess Seth Finkelstein, on the recent decision [PDF] in MGM v. 321 Studios: "Last year, there was a DMCA / fair use 'pony hunt' to find a way to argue that a sentence in the Eldred decision would undo the legal hack where the DMCA hacks-away fair use. Unfortunately, we are still left with a pile of manure."Later: For more on the decision, here's press coverage/linkage round up #1 and #2--from, respectively, Frank Field & Denise Howell. Later (February 26): A Cyberia-L email list member: I am sure that all who have read the 321 decision have noticed that it isn't really a "decision"--it is a kind of "recitation" of assertions made in Reimerdes/Corley and Elcom. For the very same money, a law clerk with a pair of scissors and a supply of scotch tape could have "assembled" the "opinion" from the other DMCA cases--no trouble need have been taken to "write" it.Later #2: Derek Slater: The meaning of Eldred as read through MGM v. 321 is that the government may limit fair use (as guaranteed by the Constitution) so long as it advances "significant government interests" and does not unreasonably burden fair use... What's interesting is that, at first, it sounds like intermediate scrutiny, which is what the Eldred appelants wanted, but it seems very watered down. So it's better than no First Amendment scrutiny, but only just. Posted Thursday, February 19, 2004 DRM Got You Down? Or worse yet, relentlessly preachy?Via Ernest Miller, the antidote: Player: I hear Mongoose Publishing is releasing a new edition of the Paranoia roleplaying game this August. What can you tell me about it? WhenU Pit Trademark Law Against Competition Fred von Lohmann, in a media release on the amicus brief EFF signed in 1-800 Contacts v. WhenU: "If I'm walking to my neighborhood drugstore to purchase contact lenses and on the way I see a pharmacy with lenses at half the price, I should be able to stop by and take a look at the competition before making my purchase."Later: EFF Seeks Reversal of WhenU Ruling: "The amicus brief details several examples of offline advertising that divert consumers' attention by presenting them with competing products during their shopping process. It describes the District Court's injunction as dangerous because it appears to target a whole medium without addressing the content of the advertisements themselves." DirecTV v. Freedom to Tinker A computer engineer whoPosted Thursday, February 12, 2004 DRM Roll, Please My EFF colleague Jason Schultz (hyperlinks, mine): "Forget open content on your next-generation mobile device: CMLA is here to make sure you only use Big Content from the corporate media. [...]Result: A technical and legal hack around fair use and the Betamax doctrine. The only devices that can play Big Content are those that have undergone CMLA's fair use labotomy and come out crippled." And on that note, here's a word or two on the subject from Jim Griffin in his much-discussed interview with The Register: With copyright owners it's difficult to monetize things after the fact. In wireless, we live in 1992, at 14.4 kbits/s, which is shortly before the troubles began!...The 3G networks are going in and they're wondering how to get people to use them, because if they don't use them for data, people can use 2G networks for voice. But before high bandwidth wireless takes off we still have the opportunity to do this for copyright holders, before the fact. Posted Wednesday, February 11, 2004 Ellison v. AOL: New Clarity in the Blame Game? What does an Internet Service Provider (ISP) have to do in order to avoid paying the piper for enabling copyright infringement? Do the "notice-and-takedown" procedures under the Digital Millennium Copyright Act (DMCA) provide a square deal for everyone involved--the ISP, the copyright holder, and the user accused of copyright infringement?Derek Slater, Ernest Miller and Jason Schultz grapple with these questions and others in their responses to the ruling yesterday in Ellison v. Robertson et al.; if you haven't yet had the opportunity to look at the decision [PDF], following is a rough guide to the action: Derek: "According to the ruling, the ISP must have a notification procedure much like that for 512(c). Thus, a service provider cannot simply create a policy and then remain willfully ignorant of notices pertaining to that policy. Seemingly, an ISP would have to act on the notices to whatever extent its policy requires; otherwise, notices of infringement would still 'all into a vacuum and go unheeded.' [...] Kill Bill, Vol. 3 Word on the street was correct: Brandy Karl, who has previously written @ FindLaw about our export of American-style copyright restrictions abroad via free trade agreements, now has a new piece up explaining why it's necessary to kill in its infancy the proposed Database and Collections of Information Misappropriation Act (DCIMA):In short, "[The] DCIMA is patently unconstitutional. In addition, from a policy perspective, it is a mistake--and the way it is currently drafted only worsens that mistake." Free Culture Proponents Are the True Conservatives Kevin Werbach has a very fine response to James Delong's argument that the so-called Copy Left, or Free Culture movement contains more than a few trace elements of communism: Previous post by Larry Lessig on the issue, here. Later: A second fine response, to Delong's reply: The movie industry...has voiciferously promoted its conception of its intellectual property rights as morally sacrosanct, now and forever. One key rhetorical move they make in doing so is to label anyone who questions their viewpoint as a communist and/or a pirate. (I'm not sure which is the greater insult.) You either support the Sonny Bono Copyright Term Extension Act... or you're in the dustbin of history with Lenin and Trotsky. In a political battle, demonizing the opposition can be very effective. Hail Mary II bIPlog's Mary Hodder attended a Yale ISP/Harvard Berkman scholar's meeting at which John Palfrey, David Johnson and Susan Crawford presented on "The Accountable Net"--and blogged it for our benefit. Thanks, Mary!Hail Mary I've been meaning to say this for a while now but literally haven't had the chance: check out Mary Bridges' work @ the Berkman Center. She's the brain behind the Berkman weblog, Berkman Briefings, the Digital Media Project weblog and evidently, much, much more.Posted Tuesday, February 10, 2004 LawMeme on Betamax/Grokster: Back to the Future My EFF colleague Ren Bucholz, over @ LawMeme:
With apologies to Wayne and Garth: excellent. Check it out. More on the Betamax decision and how it applies to the current struggles over peer-to-peer technology here. Kill Bill, Vol. 2 It wasn't long ago that I wrote to warn you of the Coming of the Anti-Feist--a.k.a. The Database and Collections of Information Misappropriation Act, a bill that would extend copyright-like protection to collections of facts. This is a Very Bad Thing, yet it has already been approved 16-7 in the House Judiciary committee. Now the good people at Public Knowledge have issued their own warning, and are providing you with yet another opportunity to tell your representatives to Kill Bill. If you haven't yet, please do check out the details here or here, and help Congress do the right thing. Later: Word on the street has it that Brandy Karl will have a new piece up tomorrow @ FindLaw on why we need to kill the DCIMA. Keep your eyes peeled. Later #2: Siva Vaidhyanathan, author of Copyrights and Copywrongs and the forthcoming Anarchist in the Library: "This is one of the most dangerous information policy moves since the DMCA." Speaking of Copyright, and Facts... Farhad Manjoo @ Salon thankfully ventures beyond mere regurgitation of the facts in his report on yesterday's hearing in OPG v. Diebold:"What happened at Diebold was, they said, 'Hey, there's this embarrassing stuff online,'" [Cindy] Cohn said in an interview. "So their lawyers said, 'Here's this easy way to get them down--we don't have to go to a judge, we just say they're copyrighted.' Diebold says, 'Sure, that's cheaper.' What we'd like to have interjected in that conversation is a lawyer saying, 'Wait a minute, we don't have a valid copyright claim.'" EFF asked the judge to make Diebold pay the OPG's attorneys fees and other damages as a way to deter other firms from too quickly reaching for the DMCA.Indeed. Posted Thursday, February 5, 2004 The Digital Challenge to Copyright Law Are you going to be there?I will, and likely will blog Digital Music: What Does the Future Hold?, the panel featuring my fellow Berkman-ite/EFF colleague and personal hero Wendy Seltzer. So if you can't be there in person, visit this space; I'll capture as much as I can. Later: Sorry, folks--a computer mishap stopped my plan to blog in its tracks. Took copious notes by hand, however, and shall post soon. Posted Wednesday, February 4, 2004 Listening to Grokster Still wondering what happened during yesterday's oral argument in MGM v. Grokster? Bypass the spin, listen to the hearing [MP3 file, public domain], and decide for yourself.My favorite bit: when Judge Noonan calls Mr. Ramos on his use of overheated rhetoric--e.g., piracy talk: "Let me say what I think your problem is. You can use these harsh terms, but you are dealing with something new, and the question is, does the statutory monopoly that Congress has given you reach out to that something new. And that's a very debatable question. You don't solve it by calling it 'theft.' You have to show why this court should extend a statutory monopoly to cover the new thing. That's your problem. Address that if you would. And curtail the use of abusive language." Later: Wendy Seltzer, urging unrestricted swapping of the oral argument MP3: "It's public domain, so share freely on the peer-to-peer networks whose legality Fred von Lohmann and Mike Page eloquently defend." Groking Grokster The most detailed and accurate press coverage on yesterday's Grokster hearing so far is available here [San Jose Mercury News].More, soon. *** Later: A few tasty excerpts from a first-person account of the hearing by a Pho list member: Russ Frackman, a really great guy and lawyer, argued for the RIAA companies and Carey Ramos for the music publishers...The panel turned on Russ pretty badly. Judge Noonan was almost libertarian and in addition to accusing Russ (at least three solid times) of completely miscasting Betamax, he also openly questioned, as did Judge Thomas, the opinions in both Napster cases previously heard by the 9th...His argument that P2P applications could be forced by the Court to adopt new blocking technology was met by great skepticism by Thomas and Noonan. Posted Monday, February 2, 2004 The Importance of...Reading Ernest Former LawMeme Editor-in-Chief and current Yale Fellow Ernest Miller has a brand new home for his weblog--right here @ Corante.Welcome, Ernie. It's a good day for the blogosphere. Also setting up shop: EFF's Brad Templeton, spreading some very Brad ideas. Betamax in the Balance You recall the day last spring that Grokster/Morpheus was Betamaxed? Tomorrow is the day that MGM et al. will try to persuade the 9th Circuit Court of Appeals that the lower court got it wrong.Frank Field has the essential links; Derek Slater, meanwhile, has his own personal contribution. Bonus: Three excellent pieces reflecting upon the present struggle over peer-to-peer networks, the Betamax decision, and the future of innovation in the digital sphere:
Posted Sunday, February 1, 2004 Apple "Talks" to the Pepsi Generation The Register has the best take yet on the perplexing Pepsi/iTunes ad that will be shown during the Super Bowl broadcast rather than the small-media birthed Moveon.org ad (hyperlinks, mine): The broadcast encourages children to buy as much teeth-rotting Pepsi soda as they can in the hope of finding a token that allows them access to a free, DRM-infected piece of Pepsi Cola. So Apple fancies itself a champion of "rip, mix, burn" culture--that is, a culture empowered to "talk back" to big media. Yet here it serves as the willing mouthpiece for an industry that would like nothing better than to convince the Pepsi Generation™ that the personal computer is only (yet another) conduit for passive, tightly controlled consumption. And CBS runs the ad--because this message isn't in the slightest bit controversial. This would be thoroughly depressing if it weren't for the fact that the message isn't likely to hit the target. It's not just that teenagers can smell lame (read "condescension") from miles away. It's that they're already using their computers to do a lot more than consume, and they're not going to want to stop anytime soon. Sure, they'll drink some Pepsi and download a few "free" iTunes. But not without knowing full well that only it's brown sugar water and a consolation prize. Later: Via Cory, what Downhill Battle would like you to do with said prize. Later #2: Kevin Doran: "[It's] kinda like those eggs on drugs commercials--ridiculed as being hopelessly lame because they tried to be soooo hip. The only people who didn't want to go out and get those sizzling drugs were the ones with the munchies who wanted some eggs." Posted Thursday, January 29, 2004 Vox Populi A quartet not to be missed:
Posted Wednesday, January 28, 2004 The Coming of the Anti-Feist, Part II Here's where you can head it off at the pass.We're surrounded by free factual information, but there's a bill in Congress that would lock it all up. The Database and Collections of Information Misappropriation Act (DCIMA, H.R. 3261) extends extremely broad copyright-like protections to collections of factual data--data like the price of a TV, the temperature in Arizona or information collected during scientific research. DCIMA would allow companies to sue anyone who interferes with their ability to profit from data that they collect. In other words, academic researchers, public libraries, Internet innovators and other database users would have to pay up if someone else claims to have assembled the data first. This is not only unnecessary, it's bad policy. Or as Frank Field puts it, "actually a little perverse." More, here. Posted Tuesday, January 27, 2004 Geek the Vote Via Declan McCullagh @ Politech: something to read in lieu of utter nonsense about a barbaric yawp.As Declan himself notes, the information above is useful yet a bit stale. By now most of us have heard the news about Howard Dean's support of smart card IDs in driver's licenses and Kerry (like most of Congress) signing on to the USA PATRIOT Act with praise for the "compromise" position it strikes. Kucinich, meanwhile, is the only Democratic candidate to have taken a strong, principled stand against DMCA abuse. We need a new scorecard. Later: Larry Lessig, on Declan's Howard Dean/smart card story: "What Declan doesn't get (how to read)." Later #2: Edward Felten: "At bottom, what we have here is a mistake by Dean, in deciding to give a speech recommending specific technical steps whose consequences he didn't fully understand. That's not good. But on the scale of campaign gaffes, this one seems pretty minor." Later #3: Aaron Swartz in a post entitled "The Media vs. the Facts": THE MEDIA: Dean has an extremely short temper. When he didn't come in first in Iowa, he went crazy and started screaming at his supporters. Posted Monday, January 26, 2004 PATRIOT vs. the U.S. Constitution This time around, the Constitution won: "A federal judge has declared unconstitutional a portion of the USA PATRIOT Act that bars giving expert advice or assistance to groups designated foreign terrorist organizations."Absolutely fantastic. Later: EFF's Kevin Bankston: "Under PATRIOT, it would have been illegal to provide humanitarian or political advocacy training to the anti-apartheid African National Congress, which was a designated 'terrorist' organization before apartheid was defeated. This decision ensures that Americans can exercise their First Amendment right to engage in non-violent political activism without being branded terrorists-by-association." Posted Saturday, January 24, 2004 Eyes on the Prize A few Pholks are offended that The Tyranny of Copyright? could be interpreted to attribute the term "copyleft" to Larry Lessig and not Richard Stallman; I myself was a little surprised not to see a mention of EFF in the discussion of the (ongoing) Diebold e-voting case. The reason, though, seems clear to me: the article is focused on the social movement that promises to emerge from the phenomenon of open source/free software, not free software itself. It's focused on the fact that a number of us have recognized that there is something wrong with copyright today, not on naming particular groups fighting particular battles. It's all good. I appreciate that Pholks are dissecting the article; it will help many of us learn more. But I'm less interested in identifying "inaccuracies" than I am in what this piece means in terms of taking our message farther. Posted Friday, January 23, 2004 The Copyfight Hits NYT Magazine Via uber-copyfighter Siva Vaidhyanathan: The Tyranny of Copyright?:Once a dry and seemingly mechanical area of the American legal system, intellectual property law can now be found at the center of major disputes in the arts, sciences and--as in the Diebold case--politics.Yup. Speaking of which, here's a little something you can do about it. Posted Thursday, January 22, 2004 DVD CCA Raises White Flag in DeCSS Case The DVD CCA today decided to give up its multi-year battle to convince the courts that Andrew Bunner's publishing of widely available DeCSS code is a violation of trade secret laws. Later: Slashdotted. Later #2: Allon Levy, Bunner's attorney: "Following a four year battle, the plaintiffs appear to have finally conceded that their case lacks merit. I'm pleased that we were able to restore the traditional balance that has always existed in trade secret cases at its core, a trade secret holder simply cannot successfully restrain the dissemination of publicly available information. Both common sense and the First Amendment dictate that a trade secret that isn't secret anymore just isn't protectable." Later #3: Andrew Bunner (@ Slashdot): "My fifteen minutes of fame are over. The DVD CCA is dropping their case against me...To celebrate the occassion, I've asked my lawyers to file a counter-suit alleging emotional anguish and seeking damages of one hundred billion trillion dollars." The Coming of the Anti-Feist Chronicled by Declan McCullagh @ CNET: "By a 16-7 vote, the House Judiciary committee approved an intellectual property bill that had been opposed by Amazon.com, AT&T, Comcast, Google, Yahoo and some Internet service provider associations. The proposal, backed by big database companies such as Reed Elsevier and Thomson, would extend to databases the same kind of protection that copyrighted works such as music, literature and movies currently enjoy." My brow is already starting to sweat. This is not good. At all. Bait and Tackle
Like so much of the past decade's worth of New Economy hype, the theory anchoring the open source movement is partly legitimate insight and partly vaporware...Where the movement is producing interesting things, it is doing so with heavy funding from academia, foundations, or corporations, and it is far from clear why such funding is superior in any way--practically or morally--to funding through market processes. [...] Fellow Corante columnist Arnold Kling responds: "Actually, I like the model of having people pay for software through hardware. But I agree with DeLong that we don't need government to administer the process. I could see, say, Apple, obtaining licenses to bundle thousands of songs with some future iPod. Apple would collect the 'tax' and distribute the revenues. For past creations, the revenues would go to RIAA publishers (boo, hiss), but going forward they would go more directly to people who create, produce, and filter music." Posted Wednesday, January 21, 2004 M$ Wants to Like Mike Backpedalling: "We appreciate that Mike Rowe is a young entrepreneur who came up with a creative domain name. We take our trademark seriously, but maybe a little too seriously in this case."Posted Saturday, January 17, 2004 It Was 20 Years Ago Today Betamax let the VCR play.Posted Tuesday, January 13, 2004 Brief Hiatus I've got a number of pressing projects to attend to, and likely won't be able to return to Copyfight for another few days.Here is where I would visit, were I you. Not to mention here, here, and here, and for good measure, here, here and here. And last but by no means least, here. Okay, I'll stop now. Be back soon. Posted Thursday, January 8, 2004 Copyfight Club JD Lasica comments @ A Copyfighter's Musings on the number of people who admitted to filesharing in the much-discussed Pew phone survey: "The first rule of darknets is not to tell any outsiders about it." And the second rule of darknets is... Kidding aside, Derek's doing a lot of good thinking and linking this week; I suggest you make like JD and check it out. Frank Field is also doing a typically terrific job tracking the action. One post in particular caught my eye: Solum from Atlanta. The reason? I haven't had the time this week to read Professor Solum's notes on what looks to have been an excellent conference on contemporary copyright issues. Frank evidently did, and his nutshell description alone tells me I need to make the time:
This is an important insight; it's what Chilling Effects--and to a significant degree, Copyfight--is all about. Thanks, Frank. Later: Two additional, intriguing responses to Solum's notes:
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