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!
Copyfight--the Expanded EditionBig news, all.
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?
My EFF colleague Ren Bucholz has created a picture that easily beats a thousand words for explaining how a voluntary collective licensing system such as the one we propose might work. The best part is that it's meant to serve as a virtual whiteboard of sorts--courtesy of a Creative Commons license, you can feel free to wipe away bit and pieces, add others, and repost at will. Or as Wendy Seltzer puts it, "Don't think sampling will work? Add a few 'bugs' to 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."
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 BizDonald 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."
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?"
Posted Thursday, March 18, 2004
Ernest on CA Anti-Piracy BillsA 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.
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.
Posted Tuesday, March 16, 2004
Score One for the Public DomainKudos 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 DemocracySiva 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 AtAs Derek Slater says, So many links, not enough time.
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--PricelessJason 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 ThoughtFrom 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 YearsEdward 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."
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 LoopholesUniversity 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'tDoug 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
IbidHere's my link to the many-times linked Larry Lessig post mortem on Eldred.
Posted Monday, March 1, 2004
Doublespeak Quote of the DayMPAA 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. AtomsJust 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."
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 PastCreative 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 + QuotableA 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."
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. 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 $13.86Been wondering what to do with that CD price-fixing settlement check burning a hole in your pocket? A few options:
[X] - Buy a CD...just part of one to be precise, since they're so overpriced.
Posted Friday, February 27, 2004
Bunner Acquitted in DeCSS Case-AgainYou recall that Jon Johansen was acquitted for writing/distributing software code that decrypts the data on DVDs--not only once, but twice?
Andrew Bunner has just joined the club. The DVD-CCA previously asked to end its lawsuit against Bunner over posting the DeCSS code, but was denied. Today, the California Court of Appeal for the Sixth Appellate District found [PDF] that the injunction against Bunner was improper, that it inappropriately burdened speech and that the DVD-CCA was not likely to succeed on the merits in the case. The injunction has been reversed and Bunner awarded costs.
Says EFF's Gwen Hinze: "Today's Court ruling that there is no evidence that CSS was still a trade secret when Mr. Bunner posted DeCSS vindicates what we have long said; DeCSS has been available on thousands of websites around the world for many years."
Richard Weibe: "This long-delayed but gratifying victory sends a strong message to those who would try to misuse intellectual property laws and corporate power to stifle free speech on the Internet."
Later #2: Ernest Miller: "One very interesting aspect of the decision is that there is no mention of the DMCA and how it relates to the trade secrets law."
Later #3: Edward Felten: "This is a sensible ruling. The only surprise is that it took the California courts so long to reach this conclusion."
Later #4: More from Robin Gross @ IP Justice.
Tell Us How You Really FeelVeri$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.)
DVD Copy MinusThat'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 FellowBravo 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 CensorshipThe 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 ForwardFor 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 #3: From the ever-thoughtful Ernest Miller:
First thought: EFF finally agrees with me (mostly)!
Copyright Land Grab - Discuss, Part IITwo posts from Larry not to be missed:
Copyright Land Grab - DiscussMikael 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 MessSeth 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 (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?
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 CompetitionFred 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 TinkerA computer engineer who
Posted Thursday, February 12, 2004
DRM Roll, PleaseMy 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."
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. 3Word 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
Previous post by Larry Lessig on the issue, here.
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 IIbIPlog'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 MaryI'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 FutureMy 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.
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 LawAre 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 GroksterStill 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.
"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 GroksterThe most detailed and accurate press coverage on yesterday's Grokster hearing so far is available here [San Jose Mercury News].
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 ErnestFormer LawMeme Editor-in-Chief and current Yale Fellow Ernest Miller has a brand new home for his weblog--right here @ Corante.
Betamax in the BalanceYou 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.
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 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 #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 PopuliA quartet not to be missed:
Posted Wednesday, January 28, 2004
The Coming of the Anti-Feist, Part IIHere'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.
Posted Tuesday, January 27, 2004
Geek the VoteVia 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. ConstitutionThis 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."
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 MagazineVia 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
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 MikeBackpedalling: "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 TodayBetamax let the VCR play.
Posted Tuesday, January 13, 2004
Brief HiatusI've got a number of pressing projects to attend to, and likely won't be able to return to Copyfight for another few days.
Okay, I'll stop now. Be back soon.
Posted Thursday, January 8, 2004
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.
Later: Two additional, intriguing responses to Solum's notes:
Posted Tuesday, January 6, 2004
I missed the boat entirely. For those of you likewise stranded on the shore, below is a brief (3-hour?) tour:
Today's NewsToday was chock full; I'm still digesting. Two top spots for the latest: Furdlog and A Copyfighter's Musings.
Yesterday's NewsTwo essential pieces:
Posted Monday, January 5, 2004
I'm Back...but still surveying the territory (not to mention plowing out from under mounds of email!).
More (much), soon.
Posted Friday, December 19, 2003
Verizon Wins Victory for PrivacyThe D.C. Circuit has accepted Verizon's statutory interpretation of the Digital Millennium Copyright Act (DMCA) and has reversed (PDF) a lower court's ruling enforcing subpoenas by the Recording Industry Association of America (RIAA) for subscribers' identities:
Because we agree with Verizon's interpretation of the statute, we reverse the orders of the district court enforcing the subpoenas and do not reach either of Verizon's constitutional arguments.More, soon.
Reuters: "In a surprise setback for the recording industry, a U.S. appeals court said Friday its methods for tracking down those who copy its music over the Internet are not authorized by law."
Wendy Seltzer: "Internet users are the winners in the Verizon case. The effect of the appeals court decision is that we do not lose our privacy simply by connecting to the Internet. The ruling stops the record labels from taking our free speech rights as collateral damage in the campaign against the American music fan."
Derek Slater (hyperlink, mine): "[What] happens next? We should expect an appeal, but, in the meantime, that won't do the RIAA much good. This gives another push to Congress to step in. If they open up 512 to debate, it will be on far different terms than when the statute was first passed."
Ernest Miller: "The constitutional issues that would have made this a victory for privacy as such, or for freedom of expression, were not addressed by the court...[This] will greatly increase the pressure on Congress to address the P2P issue directly...and the outcome will be indeterminate."
1. Who knows whether and to what extent the various constitutional arguments and concerns that Verizon and various public interest groups (including Public Citizen) urged, either directly or as a reason to construe the statute narrowly, but on the face of the opinion, at least, constitutional concerns play no role in the analysis. The opinion does not even contain a overt bow to "avoiding difficult constitutional questions."(Very insightful) Slashdotter: "The RIAA will lobby for a new law that allows them to get these records. (As the court wisely notes Congress did not contemplate P2P in 1998) If there was a time to mobilize an effective campaign against such a law, now is the time to do it."
I've always seen the industry's reaction to file sharing as yet another example of the lack of imagination that led to predictions that cassettes and VCRs would lead to the death of the music and movie industries. Since the real result of those inventions--once the entertainment industry was dragged kicking and screaming into accepting that they weren't going away--was quite the opposite, I've pretty much been waiting for the same thing to occur this time. Today's opinion won't make that happen all by itself, but it's a step in the right direction.
Posted Wednesday, December 17, 2003
Quote of the Week(Month? Year?) Courtesy of Cory: "They that can give up general purpose computers for the sake of a little eye candy deserve neither computers nor eye candy."
The Importance of Being StupidVeriSign CEO Stratton Sclavos @ Ross Mayfield's weblog: "We have to move the complexity back into the center of the network and remove it from the edge."
Wendy Seltzer, responding:
Every time I'm about to give up on ICANN...I hear something like this to reassert the organization's importance.Edward Felten, on Wendy's response: "I'm not sure why VeriSign thinks that its contract to perform certain administrative functions gives it a license to redesign the Net; but somehow it does. Just another reminder that the Net does need to be governed, if only to keep outfits like VeriSign from fouling it up. Even ICANN looks pretty good at times like this."
David Isenberg's straw poll:
How do you feel about Sclavos' remark?
Posted Tuesday, December 16, 2003
What John Walker Doesn't Get?Edward Felten has a new post responding to Steven Levy's exegesis of John Walker's Digital Imprimatur. Levy by way of Walker in the footsteps of Larry Lessig warns that the Internet is well on its way toward total tech lockdown.
Professor Felten argues otherwise. The sky isn't about to fall--and further, it can't:
[A] locked-down Net can't really happen, at least not here in the free world. For how can one foot be enslaved while the other is free? To lock down the Internet is to disconnect it from everyday life, from the life where I can send an invitation, or a business memo, or a home movie to anyone at any time, where I can read whatever I like without asking a censor's permission.
"I don't get it," responds erstwhile Berkman Fellow Joseph Reagle @ Freedom-to-Tinker: "Yes, in the cypherpunk days we believed the Net might be an anarchist utopia, but we quickly learned otherwise *because* it was connected to meatspace."
My own two cents: If the lockdown is seamless, largely invisible, "convenient" for the vast majority of Internet users and (most importantly) profitable, it will be implemented. Meatspace "rules" will follow.
Later: Kevin Werbach:
[Felten] has a point. The problem, though, is that policy-makers aren't seeing the analogy he makes. The content industries, for example, have successfully focused attention on the threat of digital "piracy," as though no one ever made a mix tape from a CD before the Net came along.
Take the PlungeWired: "To prove that open sourcing any and all information can help students swim instead of sink, the University of Maine's Still Water new media lab has produced the Pool, a collaborative online environment for creating and sharing images, music, videos, programming code and texts."
There are inaccuracies in this piece, but the project itself sounds fascinating. I've only just dipped my toes. The water's warm.
I CANN'TSo argues Berkman Center Executive Director John Palfrey.
Andrew McLaughlin, former Vice President and CFO of ICANN and a Berkman Center fellow, disagrees: "In short, concluding that the ICANN experiment in public participation has been a failure because online public forums have been a failure is like saying that television has been a failure because Cop Rock was a failure."
The Napsterization Of...EverythingThe always thoughtful Mary Hodder of Berkeley's bIPlog has a brand new weblog: Napsterization. It focuses on "positive, fair-use and legal examples of peer-to-peer file sharing," and plans to provide "examples of digital expresssions of disruptive technologies...as well as analysis and opinion of the effects of disruption."
Sounds to me like the Creative Commons weblog now has a cousin.
Seth Fought the Law, and Seth WonWho is Seth Finkelstein? Among other things, he's the technologist who won a critical filtering software exemption from the anti-circumvention provisions in the Digital Millennium Copyright Act (DMCA)--and not only once, but twice.
Mikael Pawlo of Greplaw has a new interview with Seth; in it, Seth says a number of things that bear repeating/propagating. Below, just one (emphasis, mine):
Every time I discuss any policy work, I hear I'm a non-traditional candidate. That is, either you're an industry hired gun, or going through the stages of a law and policy career. All of which is very constraining. When I went to Washington DC to give DMCA testimony, I couldn't even get my travel expenses covered. I had to pay it all out of my own pocket (while unemployed!). I'm not the first person to suggest this, but I think having a way for more technologists to play a role in being heard when and where the laws are made, would be vastly beneficial.Lots more, here.
New FlashHere's the cool new flash movie that debuted on Sunday at the Creative Commons anniversary party--plus a few post-party reflections by Jason Schultz.
Posted Monday, December 15, 2003
Don't ForgetI admire David Weinberger for a number of reasons. Here's just one:
Frank: Do you think your vision of the web is "utopian?" In a discussion a year or two ago you said "What makes the Web utopian (in some sense) is that it's connective." Some people think that all this connectivity is dystopian, that we live in a surveillance society and that the web is one of the enabling technologies behind all that. How much do you credit those fears?And on that note, here's a shout out to Ming the Mechanic, whose answer to dire warnings about the future of the Internet is a call to action. Writes Ming:
[There] are a number of powerful, well-funded groups, backed up by corrupt politicians, that are working very hard on making the Internet subservient to their wishes and their economic interests...OK, so let's fight.
The Almighty v. PiracyGod Considers Smiting Bible Pirates: "God said that 'spreading the Gospel' was not a valid defense for distributing copyrighted materials. 'Rev. Jackson has published at least 35% of My word electronically, where anyone with an internet connection can download it. Thrice did I call on him to repent; thrice did he ignore me or refer me to the EFF [Electronic Frontier Foundation].'"
Posted Sunday, December 14, 2003
Gag Me With a TOS AgreementPeter Ludlow chronicles the seedy, if fictional, happenings in a Sims Online town. Recently, he urged game owners to notify local police authorities of an in-game report of child abuse. Now his Sims account has been deactivated.
For more on law and virtual worlds, see:
Alt.Compensation.ClearinghouseIt looks like Aaron Swartz is creating an online home for discussion about the development of an alternative compensation system for digital media: "With every passing day, online music downloading becomes more prevalent and industry countermeasures become more odious. What if there was a compromise that solved the problem?"
Later: ACS list: "The ACS list is a highly focused and partially moderated email list created for those who support the development of realistic, alternative compensation systems for creators whose works are shared on peer-to-peer networks. Those who do not support alternative compensation systems need not apply. Most posts from new subscribers will be moderated."
Posted Friday, December 12, 2003
Party for the CauseTomorrow night, the multitalented Lisa Rein is performing at a concert/holiday bash from 6:30-9:30 p.m. at the Noe Valley Ministry at 1021 Sanchez St. at 24th here in San Francisco. Admission is free, but donations will be accepted--and Lisa has generously offered to donate half of whatever is collected to EFF. Be there!
Voting for Fair UseMy EFF colleague Ren Bucholz, in today's 321 Studios newsletter: "A 19th century voting expert said that voting machines should 'protect the voter from rascaldom and make the process of casting a ballot perfectly plain, simple and secret.' But what if the rascal is the voting machine?"
On that note, check out:
The ability to audit is actually required by the Help America Vote Act of 2001...But then the language was changed slightly in a conference committee, and for some reason, though the auditing requirement remains, most systems aren't auditable. Huh? The best explanation for this that I have seen so far says that the new machines are "able" to be audited in the same sense that I am "able" to fly a Boeing 747. I am a sentient being with basic motor skills just like all 747 pilots, so I am "able" to fly a 747. So we are "able" to audit these machines. We just don't know how.Later: Ben Adida: "I am usually a big fan of Cringely's no-nonsense approach to technology problems, but, as I've learned these past few days, his approach to e-voting is too simplistic and thus incorrect."
Ignore Susan Crawford...at your peril.
On the broadcast flag mandate: "No court should defer to FCC's decision about its jurisdiction in this regard, particularly in the absence of any explicit statute, and particularly because FCC has said many times over the years that it has no jurisdiction over copyrights. The fact that FCC changed the title of its rule from 'copy protection' to 'content protection' at the very last moment speaks volumes. This is really about copyrights."
On the RIAA's litigation campaign: "I'm all for the lawsuits, that's fine, but you can't build a marketplace through litigation."
On the much discussed Posner opinion in Assessment Technologies v. WIREDATA [PDF]: "A victory for rationality. And a warning to those who would use copyright claims to convert otherwise freely-available material into private property."
More from Professor Crawford here.
Posted Thursday, December 11, 2003
The Technologies and Politics of ControlTwo must-reads via BoingBoing exploring Jonathan Zittrain's favorite subject:
Cory himself, in the second post: "If you've ever thought, 'Well, why should I care about P2P? I use my computer in non-infringing ways,' this is why: investors who put money into general-purpose technology...are being put on notice by the labels that such investment will be targeted in the courts."
Larry Lessig on the same news: "This Taipei Times article describes a 'warning' from the International Federation of Phonographic Industry to 'existing investors and potential investors to seriously consider their investments in unauthorized peer-to-peer network operators.' Nice of them to help."
Compulsory Licensing: Where's the Beef?Edward Felten asks how to measure "consumption" under a digital media compulsory licensing scheme; Ernest Miller responds, suggesting that the devilishness of the details depends on the kind of counting you have in mind.
Later: Serguei Osokine @ Freedom-to-Tinker:
If the question is: "Is there a bulletproof technical method of gathering the statistics and dividing the money?"--the answer is most definitely: "no."Later #2: Frank Field: "I have to admit that I fall into the Felten camp on this one; monitoring network traffic to manage P2P exchanges just reeks of geometric complexity, particularly in the face of a desire to circumvent/manipulate the system."
Later #3: Aaron Swartz, also @ Freedom-to-Tinker:
There are problems, but I don't think this is one of them.Later #4: Adam Thomas, responding @ the Importance of...to Ernest Miller's contention that people will demand a filtering mechanism for an alternative compensation scheme because they won't want to support porn: "The notion that tax dollars will be 'subsidizing music that glorifies cop-killing' in an ACS is a misnomer; it is no more accurate than the position that one's cable bill subsidizes gangsta rap."
Posted Wednesday, December 10, 2003
E-Voting: Why the Silence?So asks Siva Vaidhyanthan, in a new piece decrying the lack of Big Media attention to the current e-voting crisis:
After being sufficiently embarrassed (and realizing that someone had posted the memos to KaZaa), Diebold opted not to pursue legal action. But the damage had been done. Dozens of critics had their Web sites go dark.Sad. True. Siva writes that "only two Democrats have confronted this issue." Here's another slim ray of hope.
Later (December 11): Tom Poe, who opposes proprietary software for e-voting, writes an epitaph for democracy in Nevada.
Interoperability, Multiple Platforms...Microsoft?
Later (December 11): Two pieces on the above-referenced Content Reference Forum (CRF):
Scheme Hatched To Counter Digital Rights Balkanization: "EFF attorney Jason Schultz explained that the CRF is proposing a DRM to cover all possible uses of digital media. To do that, it needs to write software code to consider every single circumstance that could arise. 'It's very tough to write software code that recognizes things like free speech or criticism or parody,' he told TechNewsWorld. 'Unless their specification allows for those kinds of activities, it's flawed.'"Later #2: bIPlog's Mary Hodder and New Scientist with other angles on the announcement.
Alcohol, Tobacco, Firearms, Explosives...digital music?
Later: A Pho-ster's reaction: "[Maybe] they got [Buckles] on board so they can legally shoot themselves in the other foot, or hopefully the head."
Later #2: Jason Schultz: "This is just another example of the RIAA's ongoing plan to treat American consumers like criminals instead of customers. If they really wanted to solve their file-sharing problems, the RIAA should have considered hiring someone with a business plan rather than a baton and a bulletproof vest."
It's Called Competition
It's Called Fair Use
Elizabeth "have-you-blogrolled-her-yet?" Rader, responding to Derek Slater's report that even in the absence of a cease-and-desist letter from Diebold, John Hopkins University is asking its students to refrain from posting the company's infamous email archive (emphasis, mine):
Edward Felten, meanwhile, parses a Washington Post article on Diebold et al. announcing that they will respond to public criticism by...discussing it openly:
[Although] they "have yet to put forward any proposals," they hope to have some conversations with people. Amusingly, the chairman of the ITAA calls this "an inflection point in the history of voting in this country."Finally, Jason "have-you-blogrolled-him-yet?" Schultz points to the I, Cringely column on Diebold now making the rounds. Quoth Cringley:
If EVERY OTHER kind of machine you make includes an auditable paper trail, wouldn't it seem logical to include such a capability in the voting machines, too? Given that what you are doing is adapting existing technology to a new purpose, wouldn't it be logical to carry over to voting machines this capability that is so important in every other kind of transaction device?
Rageboy Does DaveQuestion: Parody or pastiche?
Posted Monday, December 8, 2003
Still BrewingThat is, my response to Edward Felten's and Siva Vaidhyanathan's response to the RIAA's litigation campaign.
There is a lot going on out there today. Here's a good perch for an overview.
More when I can.
Posted Friday, December 5, 2003
Let the Music Pay ReduxOur Professor Felten has some interesting thinking & discussion going on about whether the RIAA's litigation campaign is doing us any good--that is, getting us any closer to a situation in which the majority of people choose to pay for digital music, even when they can get it illegally for free.
He argues that perhaps the campaign is working--and further, suggests that the lawsuits, though incurring "real costs and bad feelings," may simply be the price society has to pay in order to make "voluntary compliance" with copyright law possible.
I've touched upon this before, and have a response brewing. In the meantime, though, I recommend that you check out the other responses Prof. Felten is provoking, and if you are so inclined, add your own. As Derek notes, today's the day for the Berkman Center's apropos conference on developing an alternative compensation scheme for digital media. There is plenty of will for a solution to the current crisis. Is there a way?
Later: Mary Hodder's .02.
Later #3: Siva Vaidhyanthan: "I happen to agree with Ed Felten about the civil suits the RIAA is pursuing. Others whom I respect a great deal disagree with Ed and me."
Diebold's Backed Off. Why Are We Still Fighting?Here's one reason why.
According to Asheesh Laroia, John Hopkins University never received a C+D regarding the Diebold memos. Yet JHU disconnected access to the files. Even after Asheesh told the University that Diebold had folded, the University still refuses to let him post the memos. In a recent email, the University said that it "cannot allow its resources to be used in violation of copyright law, whether or not the holder of the copyright (in this case Diebold) plans to prosecute."How much of an effect do retractions like this one have when such an important discussion continues to be silenced?
Posted Thursday, December 4, 2003
Sigh...Music Industry Legal Targets Include Retiree Who Doesn't Own Computer [AP]:
Among the RIAA's recent targets is retiree Ernest Brenot, 79, of Ridgefield, Wash., who wrote in a handwritten note to a federal judge that he does not own a computer nor can he operate one. [...] "There's a mistake in this case," [his wife] Dorothy Brenot said. "We're innocent in all of this, but I don't know how we're going to prove it."
Grimmelmann "Bloody Brilliant"Cory waxes rhapsodic, and rightly so, about James Grimmelmann's latest feature over at LawMeme: The State of Play: Free As in Gaming?
Posted Wednesday, December 3, 2003
GeekPAC, AOTC...Click the Vote?I'd like to see efforts like this one make a difference, wouldn't you?
Speaking of Creativity...My fellow Corante weblog writer Dana Blankenhorn has a few words of wisdom to share: "We have transformed copyright, in our time, from a limited right, an incentive to create more, into a property right, a homestead, a place we stay on until we die."
Love's Labour's Found
A man might write the works of others, adding and changing nothing, in which case he is simply called a 'scribe' (scriptor). Another writes the work of others with additions which are not his own; and he is called a 'compiler' (compilator). Another writes both others' work and his own, but with others' work in the principal place, adding his own for purposes of explanation; and he is called a 'commentator' (commentator)....Another writes both his own work and others ' but with his own work in the principal place and adding others' for purposes of confirmation, and such a man should be called an 'author' (auctor).Chris Locke, one of the four brilliant co-authors of The Cluetrain Manifesto, has decided to to follow Dan Gillmor's blogsteps and will be writing his new book, No Love Lost online--presumably with the help of us scriptors, compilators, commentators and auctors. His weblog may appear as an attempt simply to shock, but the man behind the curtain is a master of many forms of expression increasingly under attack on the Internet: parody, criticism, subversive/deconstructive cultural commentary and all manner of "mash-up" creativity.
All of which is to say that Chris is a true talent. He breaks the rules in such a way that he exposes them--something artists of all kinds should continue to be able to do.
Leter (December 11): Scriptor/shmiptor: we're all a bunch of blogging grandmas.
Posted Tuesday, December 2, 2003
Late...but nevertheless sincere: welcome back, Derek, Frank and Ernie. You were missed.
Johansen Takes the Stand for Fair Use...again, today.
Joseph Reagle notes that "the Norwegian legal system has shown some sanity, and they don't have a DMCA."
What they do have is criminal code section 145.2, which outlaws bypassing technological controls to access data one is not entitled to access. According to IP Justice, this case marks the first time that the law has been used to prosecute a person for accessing his own property.
Posted Monday, December 1, 2003
OPG v. Diebold--What's Up?The scoop:
Voting machine company Diebold Systems, Inc., agreed today in federal court not to sue or send any further legal threats to anyone who publishes their corporate email archive, which indicates flaws in company's voting machines and problems with certifying the systems for actual elections. Diebold also agreed to send retractions of its earlier legal threats to the Internet Service Providers (ISPs) who received them.Later #2: Berkman Center Executive Director John Palfrey, to the Harvard Crimson, "[Diebold's] claims were not going to prevail in court."
Wendy Seltzer, in the same article, "We'd still like to have a judge saying that a posting like this is 'fair use.'"
Later #3: AP: "In a major victory for free speech enthusiasts on the Internet, Diebold Inc. has agreed not to sue voting rights advocates who publish leaked documents about the alleged security breaches of electronic voting. [...] Diebold did not disclose specifics on why it had dropped its legal case, but the decision is a major reversal of the company's previous strategy."
Later #4 (Dec. 2): Slashdotted: "Fox News reports that 'Diebold said it would not sue dozens of students, computer scientists and Internet service providers who had received cease-and-desist letters from the company from August to October,' which is great for academia land, but one should still ponder using Diebold on any level...."
Later #5: Krugman-ized: "Why isn't this front-page news? In October, a British newspaper, The Independent, ran a hair-raising investigative report on U.S. touch-screen voting. But while the mainstream press has reported the basics, the Diebold affair has been treated as a technology or business story — not as a potential political scandal."
Later #6: Wired: "Diebold spokesman David Bear said no one should interpret the move as a sign that the DMCA did not apply in this case. 'We've simply chosen not to pursue copyright infringement in this matter,' he said."
Later #7: ZDNet: "[EFF] pledged to seek a court order spelling out that publishing or linking to the Diebold emails doesn't amount to copyright infringement, as well as monetary damages under the DMCA on grounds of misrepresentation. [...]
'We've been saying from the beginning that Diebold shouldn't be able to use copyright law to stop discussion of technologies that are at the heart of our democracy, and Diebold has finally acknowledged that by dropping its threats of suit,' Seltzer said. 'And we plan to drive that point home to Diebold and anyone else who might be tempted to misuse copyright similarly.'"
Right About Now...the telephone conference in OPG v. Diebold is taking place.
Food for thought while we await news of the outcome:
We certainly didn't imagine then that this would be one of those instances, nor that it would so effectively capture the public's attention.
[Snip; see the post above for updates.]
Posted Friday, November 28, 2003
Will the Broadcast Flag Break Your TiVo?
Wendy: "[Although] it's probably fair to say, as Paul Boutin does on Slate, that the broadcast flag is not the end of the world..., it's important to remember that the most likely scenario is that it's a first step. The MPAA is not being as stupid as the RIAA in that it's not suing children for sharing files, but it still wants more digital control rather than less. The next point of attack will be what is now being called the 'analog hole.'"
Dance LessonsLarry Lessig wrote this past spring that there is a "standard dance that the IP extremists do well: When they lose in Congress, they go overseas and negotiate a treaty that imposes on the U.S. the same obligation they just lost in Congress; then they come back and say, 'we must do this to live up to our international obligations.'"
This is precisely the kind of dance that the U.S. government is now gearing up to perform--despite its recent failure to achieve hemisphere-wide buy-in for highly restrictive IP regulations in the Free Trade Area of the Americas (FTAA) agreement.
How so? In the wake of the defeat, U.S. trade officials aren't backing off. Instead, they're shifting into Super-DMCA mode; or, as Robin Gross eloquently puts it, pursuing a "divide-and-conquer" strategy of "picking [Southern states] off one-by-one in trade agreements where they hold even less bargaining power against the U.S."
Just as the Miami FTAA meeting was taking place, I was writing an op-ed piece on the negotiations for 321 Studios' newsletter. The primary goal was to convey in the plainest, most concrete terms what effect the agreement would have on the future of fair use--not only abroad, but also, per Larry's "dance," here at home.
Because I was writing specifically for the newbie to these issues, I didn't push discussion much beyond the basics. What I did do was point out the fact that these trade agreements can potentially out-DMCA the DMCA. Whatever miniscule protections that the DMCA contains for fair uses of digital media, the agreements can leave out.
I don't have to tell you what happens next; Larry already has. The bottom line: If we don't work now to counter the global "Super-DMCA" strategy, it will only make it that much harder in the future for us to retain our very few, and very hard-won, freedoms.
DVD region coding raises so many issues. Ought the industry to have a right to control consumers' ability to access information and content, solely based on where they live? Should the industry's interest in being able to continue to release movies at different times in different places take precedence over the rights of users? The law should be taking a considered position on these issues. They shouldn't be decided by default, and they certainly should not depend on the answer to the question of whether the industry can erect technological barriers to price arbitrage.
Posted Thursday, November 27, 2003
Lessig (Blog) Big in JapanVia my referrer logs comes the Lessig Blog--evidently as part of CNET Japan.
Provided that this is what it looks like--a weblog adopted by a Big(ger) Media news outlet--I'm psyched. When do we get Lessig Blog @ CNET here in the U.S.?
Posted Wednesday, November 26, 2003
Litman on "Sharing and Stealing"Via the not-ever-to-be overlooked Lawrence Solum comes a pointer to, & commentary upon, digital copyright expert Jessica Litman's paper-in-progress, Sharing and Stealing:
One of the most interesting aspects of Litman's analysis is her contention that the schemes she supports (compulsory license plus a tax) are outside the politically feasible choice set.Amen.
Slashdot BaitJon Johansen (yes, that Jon Johansen) @ the aptly named So Sue Me: "[Angry Mac zealots] have failed to understand that by buying into DRM they have given the seller complete control over the product after it's been sold."
Later: Ah--had it slightly wrong. 'Twas Reuters-bait.
Later #2: Joseph Reagle: "Johansen is an interesting character in this latest drama because he was also prosecuted for writing DeCSS, the tool I use to watch DVDs under Linux...[Now], Johansen is taking a stand for reasonable use once again. However, the Norwegian legal system has shown some sanity, and they don't have a DMCA. He's probably safe."
I Can See Clearly NowCan you? [Aaron Swartz]
Best bit: "Wow, it's amazing how scientific inertia and entrenched self-interests combine to hurt such a large percentage of the population. Thanks for explaining it to me."
Posted Tuesday, November 25, 2003
Diebold FoldsAs Larry Lessig and before him, Jennifer Granick report, Diebold has decided not to sue (PDF) for copyright infringement in OPG v. Diebold--and further, to "withdraw its existing DMCA notifications and not to issue any further ones for [the Diebold email archive]."
The inimitable Cory Doctorow (Nov. 26): Diebold rolls on back, pisses self, begs for mercy: "Diebold has withdrawn its lawsuit threats against the sites that republished the leaked memos demonstrating its gross malfeasance in its voting machine business. Having had these memos exposed by whistle-blowers, Diebold sought to use copyright law to censor websites that published them. Then EFF took up the cause of one of the site-operators, the Online Policy Group, and now Diebold is slinking away with its tail between its legs, off to plot the downfall of democracy in some rancid warren of its own devising. Don't let the courtroom door hit yer ass on the way out."
Edward Felten: "It's a standard-issue lawyer's non-surrender surrender ('Mr. Bonaparte, having demonstrated his mastery of the Waterloo battlefield, chooses to withdraw at this time'), asserting that '[u]nder well-established copyright law' Diebold could win an infringement suit, but that Diebold has decided anyway not to sue, given that it no longer has any realistic hope of suppressing distribution of the memos."
The next step? Judge Fogel has scheduled a telephone conference for Monday, Dec. 1st.
Posted Monday, November 24, 2003
Linkable/ThinkableA number of my favorite weblogs have posts I wish I could linger over today. A quick tour:
Unfortunately, discovering the inner workings of your own property and sharing what you've learned with your friends is not the legally straightforward activity it should be. For Americans at least, the Digital Millennium Copyright Act (DMCA) is a troubling reality.
Posted Sunday, November 23, 2003
Why the FTAA MattersNicholas Kristof, in The New York Times, on the Free Trade Area of the Americas (FTAA) negotiations: "I know, I know. Mention 'intellectual property' and eyes glaze over. But meet the people whose lives are at stake."
More good reading RE the FTAA:
Kucinich Calls for Hearing on Diebold DMCA AbuseExcerpt from a letter [PDF] by
Diebold's actions abuse the Digital Millennium Copyright Act, using copyright to suppress speech rather than fulfill the Constitution's purpose for copyright, to "promote progress." These abuses raise a fundamental conflict with the First Amendment, diminishing the Internet's tremendous value as a most free medium of expression. Diebold's actions are representative of a growing body of abuses through which large and powerful parties unfairly intimidate ISPs to remove information those parties do not like. In other examples, the claims are not really about copyright, but about not showing the parties in a negative light, or not allowing consumers to compare prices, or quieting religious critics. Powerful parties should not be permitted to misuse copyright as a tool for limiting bad press and barring access to legitimate consumer information.Fantastic.
I've thought of a way you could forever make the memos public and there would be nothing Diebold could do about it. (Although your current campaign probably has accomplished this.)
Shelley Requires Open Source Code for E- VotingFine-print find in California Secretary of State Kevin
Wonder what Microsoft would make of this?
Later: Edward Felten: "Many computer scientists have argued that e-voting systems should be required to have open source code, because of the special circumstances surrounding voting. Is that what Mr. Shelley is requiring? I'm not sure."
Later #2: Joseph Hall: "Open source e-vote software? Unfortunately, I think not...Actually, looking back over the report, this open source requirement has nothing to do with the VVPAT (voter verified paper audit trail). The open source requirement has to do with electronic verification mechanisms."
Later #3: Parker Thompson (via email):
[It] is interesting that the "open source" was used at all in the paper. Other sections refer to inspection by state appointed experts during the certification process, but this seems to be treated differently (on purpose I suspect).Later #4: Parker concludes that California Does it Right.
Posted Thursday, November 20, 2003
The Other Black BoxHow universities deal with students in receipt of cease-and-desist letters bearing specious copyright claims.
I wholeheartedly support Derek in his assertion of a fair use defense in this matter for three reasons.
Required Reading: The Anarchist in the LibraryI put my order in months ago, but here's a tasty description of Siva Vaidhyanthan's new book, The Anarchist in the Library: How the Battles Between Freedom and Control are Hacking Real World and Crashing the System--courtesy of Siva himself:
The book was supposed to be a quick study of the ways peer-to-peer was altering the music and film industries, and how their reactions have corrupted our information ecosystems. Well, not only did others do that job better than I could, but I became interested in much bigger issues relating to cultural democracy and the relationship between our information systems and politics.Two words: Go. Buy.
Posted Wednesday, November 19, 2003
Kucinich Posts Excerpts from Diebold Memos...and condemns Diebold's (mis)use of copyright law to squelch public discussion about the flaws in its electronic voting systems:
Diebold has been using coercive legal claims to intimidate internet service providers and even universities to shut down websites with links to its memos and remove the memo content...The damage is two-fold: 1) limiting the public's information about the security of its voting machines, and 2) expanding corporate control over our most free medium of expression, the Internet.Question: How long before Congressman Kucinich's ISP receives a Diebold takedown notice?
It's no hypothetical; as Cindy Cohn points out here [PDF], Diebold has claimed that a website that posts excerpts from the Diebold email archive is violating the company's copyrights.
Later: Ernest Miller: "While Diebold might have a colorable claim that posting all the memos is a copyright violation, there is no reasonable claim that publishing the excerpts is not fair use...Right on, Kucinich! Will any other presidential candidates or representatives join the campaign against Diebold? Let's hope so!"
The facts in this matter are developing in ways like that involving the Brown & Williamson tobacco documents back in 1993-1994. Privileged documents were taken from B&W by one of their paralegals, then released to national media and to Rep. Henry Waxman, then Chair of the House Subcommittee on Health and the Environment. At the time, Rep. Waxman was conducting hearings about health effects of tobacco and manipulation of nicotine levels.Later #3: Matt Haughey on Kucinich posting excerpts from the Diebold archive: "I have yet another reason to love that crazy little bastard."
Posted Tuesday, November 18, 2003
Quote of the DayVia Ernest Miller, U.S. Representative Zoe Lofgren (D-San Jose) on the potential impact of the broadcast flag mandate for the future of innovation (emphasis, mine):
Do we want the FCC wielding veto power over a new Apple computer, Palm handheld or Motorola cell phone? Of course not.
Congratulations...to Frank Field, who has been awarded the First ESD Educational Excellence Award for his "excellence in classroom teaching, curriculum design and development, academic administration, and providing an effective and nurturing environment."
A student of Frank's, from the article on his award: "In a world of seekers of power, money, and recognition, one can't help but wonder what allows this creature, 'furd,' to sit unscathed in the middle of it all. What keeps him reading entrance essays in his office far past when other faculty members on the floor have gone home? What brings him again into his office first thing in the morning before the rest of us arrive? Unwavering, this creature holds to the best he knows of truth, continuing to give so much regardless of whether the stands are full or the fans forgot there was a game at all."
Frank is a role model of mine for using "blogspace" in just this way: to nurture learning. Perhaps next time, he'll get an award for teaching outside of the classroom as well.
Posted Monday, November 17, 2003
A Picture Worth a Thousand Words
Here, the 374 that inspired it.
More (way), from Doc Searls @ Doc's.
OPG v. Diebold--No Decision YetU.S. District Court Judge Jeremy Fogel heard arguments this morning from both sides in OPG v. Diebold--but it turns out that we likely won't have a decision until next week as to whether the court will stop Diebold from threatening its critics.
More (way), from Cory @ BoingBoing.
Later: The Associated Press (hyperlink, mine):
Free speech advocates at San Francisco-based EFF compare the case to the groundbreaking Pentagon Papers lawsuit. The secret government study of U.S. involvement in the Vietnam War was leaked to The New York Times, sparking a 1971 Supreme Court battle pitting the government against the media.Later #2: Wendy Seltzer, to Declan McCullagh for CNET: "[Judge Fogel] is considering the issues and understands the First Amendment import here."
Later #3: OPG's David Weekly to PCWorld: "He clearly recognizes that Diebold's claim of secondary, tertiary, and quaternary copyright infringements is specious. The collateral damage to free speech goes higher and higher the more broadly Diebold tries to quash these documents."
Later #4: Cindy Cohn, in a new letter [PDF] to the court after Hurricane Electric's receipt of a Diebold takedown notice on the very day of the hearing: "The...notice repeats Diebold's assertions that Hurricane Electric has potential copyright liability for co-locating and providing Internet access to OPG because OPG co-locates and provides Internet access to San Francisco Indymedia and the Indymedia site contains a link to the email archive.
Additionally, and even more disturbing in light of today's hearing, Diebold claims that Indymedia's posting of excerpts from the email archives, as part of a story discussing the 'gems' available in the archive, also violates its copyrights."
Grabbing the Remote (Attestation)My EFF colleague Seth Schoen wants to put the trust back in trusted computing:
[Trusted] computing architects have gone astray in designing "system software integrity measurement," which Safford et al. note "can be used to detect software compromise." The TCPA software attestation mechanisms go beyond this; they're built to enforce policies even against the wishes of the computer owner...Fortunately, this problem is fixable. TCG should empower computer owners to override attestations deliberately to defeat policies of which they disapprove.
Can't Top Elizabeth; Won't TryCIS Fellow Elizabeth Rader's weblog is worth reading for the cheeky headlines alone. The bonus? She's got the inside scoop on a number of intriguing cases. To wit: her recent update on the (in)famous "yoga copyright" case, a.k.a. Open Source Yoga Unity v. Bikram Choudhury.
Six Degrees of LitigationParamount threatened J. Lo's record label after she created a video homage to 1983's Flashdance. Now Maureen Marder, who evidently was the real-life inspiration for the main character in the film, has followed suit--targeting Ms. Lo herself.
"Flashdance owes both its story and its soul to Maureen Marder," said her lawyer, Robert Helfing. "But she received almost nothing for her contribution, accepting a small sum of cash from the producers who told her the movie was only generally about dancing and would not feature the details of her life."
Asks Nerdlaw: "[How] many degrees removed from the original can a work be and still violate the right of publicity?...What if I did a parody of the homage to the movie about Maureen Marder's life?"
Posted Friday, November 14, 2003
Apropos of which, following is an excerpt of a post by Julian Dibbell, a speaker at The State of Play conference Ernie and James are now blogging (see the Wired story). Dibbell recounts a conversation with a PayPal representative that improbably, and amusingly, explores The Nature of the Intangible:
The whole thing, here.
Later: Matt Haughey @ Creative Commons:
[We] were happy to hear the founder and CEO of Linden Lab, Philip Rosedale, announce that their multi-player online game Second Life has changed its Terms of Service (TOS) to transfer all copyright and intellectual property rights to users for any content they create within the game. Linden Lab also specifically allows for game content to be licensed by users under Creative Commons, so those items can be freely shared among players.
Off the Beaten Path
As some of you may have noticed, I've recently made a few adjustments to my blogroll. The primary reason? To introduce more serendipity in my daily reading. That, and to give myself new license to add a number of weblogs about which I have frequently heard tell, but only rarely visited.
Okay, so it was simple greed.
Below, the fruits of my labor (so far)--bits & pieces I discovered while re-arranging, and that I might otherwise have overlooked:
Stanford CIS Fellow Elizabeth Rader, on Elvis Presley Enterprises v. Passport Video (PDF): "The Court seems to have concluded that if people would buy 'The Definitive Elvis' and view it as entertainment, that cuts against fair use. But this suggests that dull, dreary biographies are transformative but exciting works are not."
Adam Thierer in a Cato piece on the broadcast flag mandate: "The FCC would be hard-pressed to point to any language in the Communications Act of 1934 or the Telecommunications Act of 1996 that gives them the authority to regulate IP, the Internet, or computers in this manner, but statutory law long ago ceased to be much of constraint on this agency's actions."
Professor Yochai Benkler, praising FCC Chair Michael Powell in a Seattle Times piece by Sarah Lai Stirland on spectrum regulation: "This would have been inconceivable five years ago--a chairman of the FCC treating open wireless-network approaches and spectrum property rights as equally attractive alternatives. This is not a small, but a huge conceptual step forward."
Kevin Werbach, on the FCC's approval of an additional 255 MHz of spectrum in the 5 GHz range for unlicensed wireless devices: "[Let's] congratulate the FCC for what it's done, but not pretend they've done everything they should. The battle for open spectrum continues!"
Bret Fausset, on Former Astronaut Buzz Aldrin's lawsuit against an educational software publisher over its use of the famous 'visor shot' photograph: "Can California's 'right of publicity' trump [the public domain]? I find it hard to believe that the answer could be 'yes.'"
Posted Thursday, November 13, 2003
Replacing Your Garage Door Opener...does not violate the DMCA. Neither does creating the replacement/competing opener in the first place.
US District Judge Rebecca Pallmeyer, in today's court order: "A homeowner has a legitimate expectation that he or she will be able to access the garage even if the original transmitter is misplaced or malfunctions."
"We're pleased the court recognized consumers' reasonable expectation that they can replace lost or damaged remote controls with competing products without violating the DMCA," said EFF Staff Attorney Gwen Hinze. "Congress clearly did not intend to give copyright owners the power to veto interoperable consumer products when it passed the DMCA."
Later: A Cyberia-L list member (hyperlink, mine): "Great news! But the justification is very weak. Basically the court held that Chamberlain never restricted the use (the way Lexmark did--by marking it on the package etc); so Skylink was not 'circumventing access control technology'...
Shame that the court didn't out and out rule that people have a fair use right to use replacement parts, or that Skylink's garage door opener is not in violation of the DMCA because the Chamberlain garage door is not one of the types of works that the DMCA applies to."
Later #2: Kevin Poulsen @ SecurityFocus: "The ruling hinged on the fact that Chamberlain's product packaging and website didn't prohibit consumers from using other manufacturer's remotes. If it had, the court's reasoning could have produced a different decision. That troubles EFF's Hinze, who worries that vendors will begin imposing explicit restrictions on what compatible products a consumer can use with something they've bought. 'Whether that would be enforceable is a good question,' says Hinze."
Later #3: John Borland @ CNET: "Lawyers had looked to this case, along with one in which printer maker Lexmark sued a rival that created replacement toner cartridges for Lexmark's machines, as a way to clarify whether the DMCA could let companies block interoperable products...The judge's reliance in her decision on Chamberlain's lack of notice to consumers left that core issue untouched, however."
Later #4: Skylink counsel David Djavaherian, via Katie Dean @ Wired: "The DMCA was intended to protect copyrighted content. Using it to regulate the aftermarket for consumer goods such as universal transmitters or TV remote controls goes too far. This sort of case is not in the public interest."
Terms of ARTEssential articles, here and here; text of the proposed bill, here [PDF].
Posted Wednesday, November 12, 2003
MPAA to Adopt RIAA Tactics. Make Sense?
It appears from recent reports that the MPAA is shortly to follow in the RIAA's footsteps and begin suing individual file sharers. Ernie says this "makes sense." My questions: For whom does this make sense, and why?
To be clear, I'm not challenging the assertion on its face. I simply want to hear more.
Later (Nov. 13): Derek offers a few good reasons why suing file sharers doesn't make sense. They're not precisely the same ones I've been hearing, so that's helpful. But I'm still looking for the other side of the coin. Ernie, it seems, may be out playing. Anyone else want to chime in? Do let me know.
The Broadcast Flag: How Screwed Are We?
So asks Derek Slater, in a post about the FCC's broadcast flag order that serves nicely to summarize the current state of play in the discussion about its potential effects. Derek also offers a few valuable words of advice for those seeking a definitive answer to the questions he and others are raising: "[Keep] reading the great analyses out there, go back to the Order, then ask a friend, then back to the primary sources, rinse, repeat."
And don't forget to use conditioner.
Later (Nov. 14): Copyfight reader Dale Barrett, via email:
The answer is pretty well. And now it becomes even more obvious why and how. The LA Times reports that Representative W.J. "Billy" Tauzin (R-LA) remains the clear front-runner to replace Jack Valenti and that "Tauzin's name has been linked to the job as far back as January, with the 60-year-old chairman of the House Energy and Commerce Committee edging slowly toward the MPAA post amid repeated reports that a secret deal already has been forged."
Posted Tuesday, November 11, 2003
Begging Your Brief Indulgence
One of the rules I set for myself when I began Copyfight was not to write about my navel or my cat--that is, not to bore/annoy people new to my weblog with "insider" details about my personal life, à la the dullest blog in the world (which is actually highly amusing, but that's another story).
Happy 60th birthday, Mom!
Mom is the reason I'm here--not just here on the planet, but here writing Copyfight. She is a brilliant writer, a lifelong educator, and (something she always insists on bragging about) the mother of nine children. She has coached my writing practically since birth, even home-educating me and my brothers and sisters for a number of years so that we could escape the creativity-squelching experience that public school can often be.
She is also among the most generous-spirited people in the world, extremely humble despite her brilliance, and endlessly kind.
Yes--you guessed it: I want to be just like her when I grow up.
Mom, thank you for everything. And readers, thank you for your indulgence.
Later (Nov. 12): Gee, thanks, Siva! (My mom says thank you, too.)
Posted Monday, November 10, 2003
Verify the Vote
Posted Sunday, November 9, 2003
FreadomEarly this month, the American Booksellers Foundation for Free Expression joined others in filing an amicus brief [PDF] in support of a legal challenge to the provision of the USA PATRIOT Act that gives the FBI virtually unlimited access to our personal records, including our bookstore and library records. Now, they're offering us an easy way to support the cause: purchasing a "Freadom" bumper sticker, t-shirt, or a range of other goodies.
My kind of guilt-free shopping.
Post script: There will soon be an opportunity for some guilt-free partying as well, courtesy of Lisa Rein. Half of the (entirely voluntary) proceeds will go to support the Electronic Frontier Foundation, an organization of which I am quite fond ;-)
Gee, FCC: Thanks...for Nothing
Writes Mr. Pegoraro (emphasis, mine):
Following, two other Big Media pieces that ought not to be missed--this time on the electronic voting fracas:
Posted Thursday, November 6, 2003
The Broadcast Flag--Telling It Like It Is
My apologies for being absent of late; I've been very (very) busy. Just as it was announced that we lost round one in the battle over the broadcast flag, I was putting some finishing touches on a proposal to secure funding so that we can fight another one: the battle to stop the same thing from happening in Asia, Australia and Europe.
More on that to come.
In the meantime, though, here is a quartet of voices on stated goals vs. substance with regard to the FCC's decision (PDF):
Later (Nov. 7): This is not to be missed. It's an open letter by my fellow Corante weblog columnist Arnold Kling to the MPAA's Jack Valenti, responding to the broadcast flag decision. Brother Kling, an economics expert, takes great exception to Valenti's assertion that the broadcast flag is a win for consumers, or about the preservation of "free TV." Hence he proposes the "Jack Valenti Spectrum Re-allocation."
Posted Tuesday, November 4, 2003
As you may have guessed, I was too busy to be here today. There was EFF's Diebold lawsuit--which was expedited and will be heard on November 17th--and the broadcast flag, which was, not unexpectedly but nevertheless sadly, adopted by the FCC.
I am thoroughly exhausted.
Posted Monday, November 3, 2003
EFF, CIS Seek Court Order Against Diebold
EFF (hyperlinks, mine): "A nonprofit Internet Service Provider (ISP) and two Swarthmore College students are seeking a court order...to stop electronic voting machine manufacturer Diebold Systems, Inc., from issuing specious legal threats. EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are providing legal representation in this important case to prevent abusive copyright claims from silencing public debate about voting, the very foundation of our democratic process.
'Diebold's blanket cease-and-desist notices are a blatant abuse of copyright law,' said EFF Staff Attorney Wendy Seltzer. 'Publication of the Diebold documents is clear fair use because of their importance to the public debate over the accuracy of electronic voting machines.'"
Update: Slashdotted. Slashdotter, deciding to donate to EFF: "This case is the tipping point for me. I've always admired the EFF's work, but most of it hasn't affected me personally. The voting machine issue affects everyone in the US, and given the importance of the US globally, everyone on earth. Put your money where your mouth is."
Posted Friday, October 31, 2003
MacArthur Foundation Supports Copyright Research...@ (where else but) the Berkman Center.
Play It Again, Uncle SamThe DMCA--oops, that would be the EUCD--enters into effect in the U.K. today.
Snippet from an article at a U.K. tech news site (hyperlinks, mine):
The directive has the potential to affect research into a number of technology areas. For example, an academic researcher studying cryptography methods would be unable to publish their findings if they discovered flaws in a commercially available product, if it intended to break the anti-copyright measures.A tidbit more, from Reuters.
Posted Thursday, October 30, 2003
Diebold, the DMCA and Democratic Speech
Excellent post. The whole shebang, here.
Reminds me of the situation with VeriSign, which late last month was chosen by Accenture to supply key parts of an absentee voting system for Americans abroad. Yes--the same VeriSign that unilaterally hijacked the Internet in order to promote its SiteFinder "service."
Wrote Wendy Seltzer: "I can see it now: mis-mark your ballot and your vote gets automatically redirected to the candidate of VeriSign's choice. 'We found these similar candidates: Did you mean to vote for Arnold Schwarzenegger?'"
Straight Dope on DMCA Exemptions & Lexmark CaseDenise Howell (hyperlinks, mine): "Media statements that the Rulemaking puts 'a stunning end' to the case between Lexmark and Static Control, or constitutes a favorable ruling at all for Static Control--which lost its bid for an exemption--[...] fail to reflect a thorough or accurate analysis of the Rulemaking and the pending Sixth Circuit appeal."
Later #3: Dana Blankenhorn's .02 on Lexmark/Static Control & the rulemaking: "The fact that the DMCA is an attack on speech should no longer be in dispute. It is, in fact, more than that. It is an attack on innovation. The case of Lexmark vs. SCC can serve as Exhibit A. Lexmark is using the DMCA to maintain a monopoly on toner it could not win from the Patent Office. And while patents are maintained for 17 years, copyright is forever--life plus 75 years."
RIAA Lawsuits a $-making PropositionNot for the artists, silly. For LexisNexis™.
The not-so-silly news is that the RIAA has filed 80 more of those suits. The artists won't see a penny of the settlements; the lawsuits aren't intended to recoup losses, but rather, to "send a message."
Gives new meaning to the phrase, "killing the messenger," eh?
Posted Tuesday, October 28, 2003
DMCA ExemptionsAnd then there were four.
More on this to come.
In the meantime, here's Ernest Miller with All the Links Fit to Follow.
Later (October 29): There is more linking and thinking from Ernie on the exemptions. And no doubt will be even more. Go.
Tom Tomorrow on Diebold
Something Truly Terrifying: "I'll give you a hint. I'm prone to technical glitches, I have huge security flaws and I leave absolutely no paper trail..."
Later: Steven Levy, addressing same: "[Whatever] we wind up using, it's time for politicians to start listening to the geeks. They start from the premise that democracy deserves no less than the best election technology possible, so that the vote of every citizen will count. Can anyone possibly argue with that?"
Later #2: Mary Hodder @ bIPlog: "How many more links do you need, before you get the picture, Diebold? Voting is too important to have you hide the goods. Cause frankly, we can link you under the table.
Ernie Miller has noted that in the AP article, Diebold's CEO Jacobsen said, 'We're cautioning anyone from drawing wrong or incomplete conclusions about any of those documents or files purporting to be authentic.'
If they are not authentic, the DMCA doesn't apply in this case."
Notable + Quotable
Ernest Miller: "[Isn't] it ironic that just as Linux begins making inroads into the consumer electronics industry, the FCC intends to mandate a Broadcast Flag that will make open source software almost impossible to use in or with many consumer electronic devices?"
Seth Schoen: "Interoperability isn't a popularity contest."
Andrew McLaughlin: "Here's a good way to frighten yourself: Learn about something, and then read what the press writes about it. It's astonishing how often flatly untrue things get reported as facts."
Dan Bricklin: "...the only reason I have a copy [of VisiCalc] that can still work is that someone kept a 'bootleg' uncopyprotected copy around."
Derek Slater, in a letter to Swarthmore officials: "I would like to point out to you how, if the broader debate over copyright liability on the Internet is any indication, giving in to Diebold here will only be the beginning of your worries."
Peter Yu (via Lawrence Solum): "Only a decade ago, the US copyright industries...lobbied their government to use strong-armed tactics to coerce China into protecting intellectual property rights. Succumbing to US trade pressure, the Chinese authorities eventually raided pirate factories and handed out harsh penalties, including the death penalty and life imprisonment in severe cases, on their citizens."
Posted Monday, October 27, 2003
EFF on MIT's Bright IdeaEFF: "MIT today announced an innovative solution aimed at giving students an alternative to swapping music online. Built around the existing on-campus cable television infrastructure, it relies on a blanket licensing approach that offers a possible model for solving the Internet file-sharing dilemma.
'The students get access to a broad array of music, and the copyright owners get paid. This is where we should all be heading,' said Fred von Lohmann, EFF senior staff attorney. 'I hope the record industry takes note and realizes this is a whole lot more promising than suing people.'"
DMCA Rulemaking: The More Things Change...?As Derek Slater notes, the second rulemaking on the Digital Millennium Copyright Act (DMCA; PDF) is imminent.
Last time around, the Copyright Office chose to exempt only two classes of work from the DMCA's prohibition against circumventing access controls to a protected work--a daunting blow for those of us concerned about fair use rights.
The Filter 3.9, December of 2000:
Speaking of which, I suggest you keep an eye on Seth Finkelstein. He has been instrumental in lobbying for censorware exemptions to the DMCA during both rulemaking periods.
Posted Friday, October 24, 2003
Diebold--More Civil Disobedience?
Why War?: "Students from four American Universities have joined the civil disobedience: MIT, USC, Purdue and University of Texas Pan American."
Later (October 26): LawMeme's James Grimmelmann takes Swarthmore's actions to their (il)logical conclusion:
Later #2 (October 28): A Swarthmore student, to the Associated Press: "A week ago, this was still a murmur. Now this is front-page stuff that people are talking about."
Kevin Heller @ Tech Law Advisor: "This has me thinking that maybe someone should create a legitimate lesson plan and offer it to volunteers to teach middle school and high school kids about copyright law instead of allowing them to be inundated with corporate propaganda."
If you have an education background, and are interested, let me know. Seriously.
This Patent-Buster Kicks AssFiguratively.
Posted Thursday, October 23, 2003
This Patent Kicks AssLiterally.
Swartz on Diebold: Get Your Memos Here
Later: Edward Felten: "Even if the students are breaking the law, what Diebold is doing in trying to suppress the memos certainly doesn't further the goals underlying copyright law. A trade secret argument from Diebold would seem to make more sense here, although the students would seem to have a free-speech counterargument, bolstered by the strong public interest in knowing how our votes are counted."
Later #2: A new low for suppressing student speech @ Swarthmore?
Will is Executive Director of the Online Policy Group and EFF's Media Relations Director.
Good News on Good News
Later: Mary Hodder beats them to the punch.
Copyright + Civil Liberties No Zero Sum EquationWhat I belabor here, attorney Daniel Ballard conveys powerfully and economically here: "We are told that copyright owners are entitled to this unprecedented subpoena power so they can effectively exploit their copyright monopolies. We are not told why that right--or that monopoly--is more valuable than the privacy and due process rights those subpoenas invade."
Valenti to (College) Kids: Internet Too Powerful
Jack Valenti, chairman and CEO of the MPAA, to a group of Penn State college kids: "I think we're in a great state of crisis because we believe in this country that the Internet is so all-powerful--and it is--that there's no limit to what you can do. And there is a limit."
Ah--college life. It's all about learning when to close the door to new possibilities.
Posted Wednesday, October 22, 2003
MPAA to Kids: Stop Thinking So HardThe Motion Picture Association of America (MPAA) this week debuted in classrooms its copyright "education" campaign for school-age children. The take-away for kids? The world is a whole lot simpler than you think--and (quote) digital citizenship (endquote) simpler still.
The classroom booklet is entitled "What's the Diff? A Guide to Digital Citizenship," in an evident attempt at kidspeak. It concludes with the below statements, intended to summarize the lessons and help teachers "connect the concepts to the students personally."
Berkman Fellow/EFF Staff Attorney Wendy Seltzer took a look; below, her reactions:
The point, of course, is that even middle-school students are sophisticated enough to see that copyright law isn't black and white. Not to mention recognize the "diff" between a regular school lesson and corporate propaganda.
The Importance of...Reading Ernest
Also not to be missed, for broadcast flag-burners:
Larry Lessig: "This is a classic example of regulate first, and ask questions later, and a perfect example of how not to regulate the Internet."
Cory Doctorow, attacking: "What Wired News misses by publishing the Reuter's piece instead of doing original reporting is that this won't stop piracy (as even the studios have admitted, in the plug-and-play cable proceeding), that it has nothing to do with buying new DVDs, that it makes a whole class of general-purpose open source software illegal, including code that's already in the market, and that it will give the companies who called home taping and peeing during commercials theft a veto over the design over DTV devices, including parts of your PC...
This is the shoddiest thing I've ever seen in Wired News. It's disgusting."
Dave Winer, underscoring: "Cory is upset that Wired News ran an 'idiotic' Reuters story about the Broadcast Flag. I was just about to point to a bit by Joi Ito correcting a piece in Wired (the magazine) praising him as The Tokyo Node. Seems they made a bunch of mistakes in 200 measly words...
So which is it--the pros have the bucks and time to do the fact checking we can't in blogland, or..?"
Jenny Levine, amplifying: "Besides the fact that [the broadcast flag] will cost us the ability to do the things we do now with television shows, movies, and our own home videos, it will cost consumers money to buy new equipment in order to lose those rights. Help fight for your own fair use rights, as well as those of your kids and grandkids by filling out the EFF form to Stop the MPAA's Broadcast Flag."
Posted Tuesday, October 21, 2003
What He Said
Do What Comes Naturally
Denise Howell puts her considerable muscle behind the call-to-arms to reject the mandate: "[See] Senator Ernest F. Hollings' request that the FCC act 'absent legislation' to implement the broadcast flag. Then see Leo Laporte's comment, 'Even Microsoft is against this one.' Then do what comes naturally."
Yale's Ernie Miller, former Editor-in-Chief of LawMeme, warns that the broadcast flag "isn't the only issue that puts the future of unrestricted digital television in doubt. Case in point: the New York Times (reg. req.) reports on what may be the coming death of stand alone personal media recorders, such as TiVo (Can Cable Fast-Forward Past TiVo?)."
Posted Monday, October 20, 2003
"Free" Trade = Restrictive Copyright Policy
IP Justice: "The draft intellectual property rights chapter in the Free Trade Area of the Americas (FTAA) vastly expands criminal procedures and penalties against intellectual property infringements throughout the Americas. One clause would require countries to send non-commercial infringers such as peer-to-peer (P2P) file-sharers to prison.
The proposed agreement forbids consumers from bypassing technical restrictions on their own CDs, DVDs and other property, similar to the controversial US Digital Millennium Copyright Act (DMCA). Even though bills are pending in the US Congress to repeal the DMCA, FTAA proposes to outlaw even more speech and legitimate conduct.
'The FTAA Treaty's IP chapter reads like a wish list for RIAA, MPAA, and Microsoft lobbyists,' said IP Justice Executive Director Robin Gross."
Later: Europe's Antipiracy Proposal Draws Criticism [NYT; reg. req.].
Snippet: "In recent months, the world has been witness to a new priority in trade discussions--copyright. Although traditionally treated by many countries as a cultural issue not subject to negotiation, stronger copyright protections are now often included at the insistence of the United States."
Later #3: Larry Lessig: "As Michael Geist writes, it is increasingly the practice of the US government to export its copyright policy though bi-lateral trade agreements. One example is the trade agreements being concluded with Australia right now that will require Australia to increase its copyright term to life plus 70."
Posted Sunday, October 19, 2003
Must-read...of the weekend: John Walker's The Digital Imprimatur: How Big Brother and Big Media Can Put the Internet Genie Back in the Bottle.
What's the Deal?
EFF's Fred von Lohmann has said about digital rights management (DRM) that it's used by corporations to take away your fair-use rights--so that those rights can then be sold back to you.
Nice deal, eh?
In the case of the broadcast flag mandate, it's even worse. We'll be paying more specifically in order to get less.
And for what? Cory puts it best:
Ah: so we'll all be paying more for less because Hollywood is scared. And hungry.
Okay, folks. I'm off the soapbox. But do take a minute or two to visit DigitalConsumer.org or EFF and tell the FCC what you make out of all of this. I've said it before and I'll say it again: it remains possible to make a difference. Whether or not the FCC does the right thing this time, we've got to get additional support on Capitol Hill for the battle against these kinds of tech mandates.
Oh Boy III
Andrew's first post is titled, "Ineluctable Modality of the Risible." Got to love that.
Another marvelous post title, particularly if you read the whole thing: "Recording Industry to Use Less Sharks, More Finns?" [Elizabeth Rader @ CIS].
Posted Saturday, October 18, 2003
DMCA v. Academic Research
Via Lawrence Solum comes a terrific paper by Boston College professor Joseph Liu on how the DMCA is impacting academic research--or more specifically, how it's changing the conditions under which research is conducted.
Writes Professor Liu:
In other words, what the Internet enables in scientific research, the DMCA taketh away.
Eeyore has been saying this for a while now, but it bears repeating: if the Internet has opened up a new avenue for "amateur" investigation, the DMCA is closing it.
If even "legitimate" research is hampered by the DMCA, what about other kinds of research? What happens to the researcher who makes significant contributions to encryption or censorware research--but not within the traditional academic setting?
What would have happened to Alex Halderman if he weren't a doctoral student at Princeton--and under the tutelage of Professor Edward Felten--but, instead, next year's fifteen year-old genius, who happens to be schooled at home, with not a single lawyer-friend in sight?
Typing Without Thinking
I did a bit of that last night, in the post below, and this morning I made some edits, post-haste. Fortunately, this gave me the opportunity to insert additional links--including a pointer to Senator John McCain's (R-AZ) letter questioning FCC Chairman Michael Powell about the proposed broadcast flag mandate.
The whole letter, here.
Update (October 19): If you're a careful reader, you'll note I'm doing a lot of self-editing these days @ Copyfight. The reason: there is so much going on, I'm suffering from Shenkian data-overload. I'm more often than not distracted when I am posting. If the changes are massive, I'll let you know. If not, I hope you can bear with me that my phrasing will sometimes change--at least until the smog clears.
Posted Friday, October 17, 2003
I Pledge Allegiance...
As many of you already know, the FCC appears close to adopting the broadcast flag. A heartening number of weblog writers have responded by sounding the general alarm, urging readers to let legislators and the FCC commissioners know that the public does not support it.
Even more heartening? Senator John McCain (R-AZ) sent a letter today to FCC Chairman Michael Powell, questioning the need for the flag. The letter cites "thousands of American consumers [who] have filed comments with the Commission..."
More on that to come.
I'm thinking this one should be spread as widely as possible, yes?
Update (October 19): AKMA: AaaRIAArgh!
Update #2: Derek Slater: Burn the Broadcast Flag!
Update #3: Mary Hodder: "[What's] the trade off? What do consumers get in exchange for these burdens, and what does the electronics industry get, for becoming subservient to the copyright industry?"
Posted Thursday, October 16, 2003
In the Grand Tradition of Carabella
It's About Control. The Kind We Won't Have.
As Ernie Miller notes, Big Media is now speculating openly upon the FCC's possible adoption before the end of the month of a broadcast flag mandate--Hollywood's end-run around the DMCA's "no mandate" provision:
Ernie's response? "Any rule that mandates DRM is giving too much control to the entertainment industry."
Dan Gillmor echoes the sentiment, adding a call to action:
Dan's right. It remains important that we let our representatives, and the FCC, know what we think. Whether or not the FCC makes the right decision in this instance, it is critical that we garner additional support on Capitol Hill for the ongoing battle against this kind of policymaking.
Otherwise, we'll end up here again.
The Importance Of...Ernie Miller, the man behind many a provocative, thoughtful, instructive and witty post @ LawMeme, has a brand new weblog.
Posted Tuesday, October 14, 2003
Oops, They Did it Again
EFF (hyperlinks, mine):
Gird yourselves, mateys: pirate/plank-walking headlines on the horizon.
Later: More @ the LA Times [reg. req.].
Copyright + Civil Liberties No Zero-Sum Equation
Via Dave Farber's IP list a few weeks ago came a Denver Post op-ed by no other than Walter Cronkite. The piece is about the USA Patriot Act--but oddly enough, reads as the rhetorical twin to Daniel Akst's lately-discussed NYT piece on the P2P wars.
President Bush's televised answer to the growing concerns of many - including some Republicans - about the powers granted to him in the USA Patriot Act was to ask for even stronger measures, particularly the expanded use of "nonjudicial subpoenas." That means a federal agency such as the FBI can write its own subpoenas to conduct a search - no judges needed.Put through an imaginary Akst-o-meter, it would read:
The recording industry's answer to the growing concerns of many - including some recording artists and labels - about the powers granted copyright holders under the Digital Millennium Copyright Act was to ask for even stronger measures, including the use of "nonjudicial subpoenas." That means that any copyright holder can write his own subpoenas and get a court clerk's approval to conduct a search - no judges needed.
An IP list member responded to the Cronkite piece by paraphrasing a quote by Ben Franklin: "People who are willing to trade security for freedom soon find out that they have neither."
He went on to argue that the "secret of course is to change the rules (i.e., the technology) so that we can have more security AND retain our liberty."
Most of us would agree, arguing for the clear necessity of ensuring security and retaining our civil liberties. Why is it, then, that when one argues for copyright protection and to retain our civil liberties, one rarely wins a warm reception?
Posted Monday, October 13, 2003
Oh Boy IIOnce again, a promising new weblog. Lookee here.
The DMCA Doesn't Go Nearly Far Enough
As my colleague Seth Schoen notes in an Advogato piece published Friday, no current law requires that technology manufacturers include digital rights management (DRM) in their products. In fact, the Digital Millennium Copyright Act (DMCA) contains a "no mandate" provision, 17 U.S.C. 1201(c)(3), stating that the law cannot be construed to require consumer electronics, computer, or telecommunications products to "provide for a response to any particular technological measure."
Translation? In passing the DMCA, Congress made it very clear that its provisions could not be used to dictate the design of consumer electronics, computer or telecommunications products.
Needless to say, Hollywood isn't very happy about that.
The MPAA's "fix"? The broadcast flag mandate--which Seth warns is only one of three promised MPAA initiatives (PDF) to expand technology regulations beyond the scope of the DMCA.
So what can we do about this? Seth encourages readers to take advantage of the EFF's current broadcast flag action alert to voice their objections to the mandate. He also urges fellow technologists to write their own letters to the FCC, providing arguments from a technologist's perspective about why the mandate isn't the right direction for technology policy.
I also recommend a reading, or re-reading, of Senator Sam Brownback's (R-KS) statement introducing the Consumer, Schools, and Libraries Digital Rights Management Awareness Act of 2003 (PDF). Much of the press attention has focused on provisions to amend the DMCA's rules on subpoenas, but Brownback tackles the broadcast flag mandate as well. States Brownback (emphasis, mine):
Live in Kansas? Now would be a good time to let Senator Brownback know you support efforts like this one to nip dangerous technology policy trends in the bud.
Posted Friday, October 10, 2003
Oh BoyLookee here.
SunnComm Does Some Thinking, Backs OffSunnComm CEO Peter Jacobs to the Daily Princetonian: "I don't want to be the guy that creates any kind of chilling effect on research. I just thought about it and decided it was more important not to be one of those people. The harm's been done...if I can't accomplish anything [with a lawsuit] I don't want to leave a wake.
I don't want to be the people my parents warned me to stay away from. It's 10 million bucks, but maybe I can make it back, and maybe [Halderman] can learn a little bit more about our technology so as not to call it brain dead."
The good Professor Felten: "SunnComm is to be commended for deciding not to interfere with Alex's right to speak. I hope SunnComm decides to join the debate now. If SunnComm wants to add anything, or to challenge anything that Alex said in his paper, I for one would like to hear from them."
Posted Thursday, October 9, 2003
Your Shift Key is an Anti-circumvention Device
Or so might argue SunnComm Technologies, Inc, which today announced plans to pursue legal action against Halderman.
Halderman is the Princeton University doctoral student who recently published a technical report on SunnComm's CD copy protection technology--determining that it can be defeated simply by pressing the shift key.
"No matter what their credentials or rationale, it is wrong to use one's knowledge and the cover of academia to facilitate piracy and theft of digital property," said CEO Peter Jacobs. "SunnComm is taking a stand here because we believe that those who own property, whether physical or digital, have the ultimate authority over how their property is used."
Later: EFF's Fred von Lohmann: "In America today, scientists shouldn't have to fear legal action for publishing the truth. Based on the apparent weakness of its technology, perhaps SunnComm should be hiring more Princeton computer scientists, instead of threatening to sue them."
Later #2: Ernie Miller @ LawMeme: "I do not know what 'device' Halderman could possibly have been trafficking in, unless they plan to go after him solely under section 1201(a) for actually circumventing such a device (a first as far as I know).
Will SunnComm actually sue under the DMCA? Actually, upon reflection, I'm thinking that they won't."
Later #3: Dan Gillmor: "Plainly, [SunnComm's] aim is to silence any debate over the apparent lameness of its technology. This shouldn't be allowed to stand. I hope the the EFF and other organizations will raise a defense fund; I'll contribute."
Later #4: Mary Hodder: "I decided to call SunnComm directly and complain about their abuse of the First Amendment and academic research: 602-267-7500."
Later #5: Alex himself, in a CNET piece by John Borland: "I expect I will be well-represented in the case of a lawsuit. If pressing the Shift key is a violation of the DMCA, then the law needs to be changed."
No matter the organization or rationale, it is wrong to use purchased legislation and the cover of law to deprive people of their rights."
Slashdotter #2: "Pressing the shift key is not a violation of the DMCA. Telling someone to press the shift key is a violation of the DMCA.
But they can't have it both ways -- either pressing the shift key doesn't do a damn thing, in which case the student 'falsely damaged' their reputation but did not violate the DMCA, or pressing the shift key breaks their 'copy protection' scheme, in which case he may have violated the DMCA but he did not damage their reputation, their lame product did. But not both."
But they can't have it both ways -- either pressing the shift key doesn't do a damn thing, in which case the student 'falsely damaged' their reputation but did not violate the DMCA, or pressing the shift key breaks their 'copy protection' scheme, in which case he may have violated the DMCA but he did not damage their reputation, their lame product did. But not both."
Later #7: Derek Slater:
Later #8: Seth F.: "RESEARCH PAPERS CAN COUNT UNDER THE DMCA!"
Posted Wednesday, October 8, 2003
I've a strong suspicion that this conversation is yielding valuable insights. My frustration is that the volume alone makes it, at least for me, or at least for now, nearly impenetrable.
Are You Now, Or Have You Ever Been
...a member of the Berkman Center for Internet & Society?
Speaking of which, here's a good look at it, brought to us by Wendy Koslow (a.k.a. The Redhead). From the accounts I've read so far, the moment I most regret missing was Halley being Halley--that is, stealth disco-ing Joi Ito.
Posted Thursday, October 2, 2003
Whom Does Your PC Take Orders From?Analysis. Companion. Scoop. Pith: "Helping computer owners defend their computers against attacks is progress in computer security, but treating computer owners themselves as the bad guys is not. Security architectures must be designed to put the computer owner's interests first, not to lock the owner into the plans of others."
Cory: "Seth has been briefed as an outside technical analyst by all the companies working of Trusted Computing architecture, and has had his paper vetted by some of the leading security experts in the field. This is the most exhaustive, well-reasoned, balanced analysis of Trusted Computing you can read today. Don't miss it."
Later: The chub has been thrown.
Posted Wednesday, October 1, 2003
Let the Music Pay V
Derek Slater has an especially fine follow-up to his earlier post detailing objections to Charlie Nesson's much-discussed proposal for what I've been calling "hactivism-in-reverse." One bit in particular brings to mind something I'd like to see addressed in greater depth: the political viability of the solutions being proposed. Writes Derek:
So Derek prefers Professor Fisher's proposal to Professor Nesson's--not only because he thinks Nesson's scheme is risky, but also, it seems, because Fisher's more closely matches his ideal. It's the better solution in part because it contemplates the better place we "could be."
Here's my question: What would it take for Congress seriously to consider adopting a system like Fisher's? Or to put it another way: Among the solutions now being proposed, which horse will we be able to ride the farthest?
Later #2: Professor Edward Felten, who personally placed a hurdle before Berman's horse [PDF], cites his own testimony to argue that Charlie's proposal isn't only similarly risky, but also simply won't work:
Later #3: Frank Field: "What is really distressing about Charlie's current proposal is that it essentially says that government goes to the strongest. If you want your rights protected, you have to join the right posse--the right street gang. Or worse, you need to pay for protection...."
RIAA Okays Personal UseIn our dreams, anyway.
I'm late to the game, but here's Lawrence Solum, imagining the rhetorical stance the RIAA might take were it politically useful for the industry to recognize copynorms: "Share with your friends, not with strangers! [...] Make a compilation CD. Use AOL instant messenger to share MP3 files with your friends. We're cool with that. But giving away MP3 files by the hundreds and thousands--that's not flat."
Posted Tuesday, September 30, 2003
This interaction between Alex Macgillivray, Charlie Nesson and Jonathan Zittrain at this summer's Internet Law Program--exploring Charlie's afore-mentioned proposal for combating copyright infringement with "hacktivism-in-reverse":
Let the Music Pay IVThis is terrific: not only Ernie Miller (@ Pho), Derek Slater, and Alex Macgillivray but also Mark Lemley, David Post, Howard Knopf and Niels Schaumann and others (@ cyberprof) are weighing in Charlie Nesson's proposal for "hacktivism-in-reverse" as a preferred means of combating copyright infringement. Objections are legion--yet Charlie is sticking to his guns.
Below, excerpted bits from Derek, Alex and Charlie himself; later, more voices from the fray--provided I can procure permission to post.
Sounds a heck of a lot like the current criticisms of the DMCA subpoena provision. Both put a great deal of power, without a lot of responsibility, in the hands of anyone who holds a copyright (which means effectively everyone). These hacktivist techniques will inevitably be used against the innocent, for purposes aside from stopping copyright infringement. Perhaps your privacy is more valuable than your computer system's resources, but I'm not sure that's enough to allow copyright holders to be vigilantes."
Alex Macgillivray: "Professor Nesson often proposes iphacktivism (though that's not what he calls it) as a reaction to the current music IP mess or Professor Fisher's plan, but when I got the chance to moderate a panel of Berkman luminaries in July, I tried to force him to propose it as a positive platform, to which Professor Fisher and Professor Zittrain could then react. The results are now up in a transcript at HLSNet."
Posted Saturday, September 27, 2003
Playing with Traffic
Let the Music Pay III
Charlie Nesson asks a provocative question in his virgin post to the Pho list this morning--in essence, why can't recording artists use hacktivist-style tools to combat copyright infringement? Or, as Charlie puts it:
The idea in a nutshell: why not use what amounts to targeted denial-of-service attacks to make it more difficult for people to share copyrighted music files--providing recording artists with effective self-help while leaving peer-to-peer networks (and the Internet's current architecture) intact?
I find the concept compelling--in large part because it seems to work with the Internet, rather than against it. It's the lazy man's approach to the problem, with the incredibly powerful forces of convenience and inertia behind it.
Yet instead we have the constant push for laws ridiculously out of step with current copynorms, laws that seek to mandate harmful tech changes, and politically challenging--some might say unfeasible--"solutions" that offend each and every interest group at the table.
Charlie has advanced this notion a few times before; most recently, at the Berkman Center's Internet Law Program at Stanford. So far, the idea has yet to take purchase--that is, it appears that few have explored it in depth. I wonder why. What are the objections? Or, as Charlie asks, who is damaged?
If you have the answer, or any part of it, I invite you to write and let me--and Charlie--know what it is.
[Obligatory disclaimer: I speak for myself, here, and not for the Berkman Center, EFF or Corante. So if you want to enter a dialogue, be aware that you're entering it with me.]
Update: LawMeme's Ernest Miller responds:
Posted Thursday, September 25, 2003
Let the Music Pay II
I received an email from Scott Matthews last night; he says he's eager to push this discussion into more productive space. To my view, Scott spent much of his Salon piece attacking a straw man--and unfortunately, pinning EFF's name to its forehead. But attacking a straw man does have the advantage of letting more people know what it is none of us want. And as Derek has been writing, we could all use a little more clarity. Especially if, underneath it all, we're actually working for the same thing: a reasonable and fair-minded alternative to the current situation--which is anything but rational and fair.
Clarification: the project I allude to below isn't a weblog discussion (though it will inevitably involve them!).
When Subpoena-Bots Attack
US Senator Sam Brownback (R-Kan.) [hyperlinks, mine]: "This revelation challenges the testimony of the RIAA at the hearing, and shows that the subpoena process includes no due process for ISP subscribers' accused of digital piracy. Due process, if it existed within the DMCA subpoena process, would provide accused pirates identified through the subpoena with the critical opportunity to rebut accusations of piracy and prevent the release of their identifying information to accusers."
Not long ago our Professor Felten made an important point about the DMCA subpoena process--specifically, its enormous potential for abuse. Said Ed:
Posted Wednesday, September 24, 2003
Happy (Belated) Birthday..to Packets, a brand new cyberlaw newsletter by the good people @ Stanford's Center for Internet & Society. Born only the day before yesterday, it's already looking pretty smart.
Let the Music Pay
If you've got any (copy)fight in you at all, you've been following the debate over the past 2-3 weeks about how to resolve the P2P wars peacably--that is,
Or, as a subset of the above questions, you may have been asking yourself
The first set of questions is about what would make a good solution to the current situation good; that is, defining our end goal and what it is we hope to preserve and protect. No solution will be perfect, so this is about prioritization and values.
The second set is about strategy. How do we get from here to there?
I've had thoughts brewing on this for some time. While I cannot yet share details, I am working on something that I hope will serve to 1.) further the collective problem solving and 2.) help clarify various positions within the debate.
In the meantime, I'm tuning in to the fruitful conversations happening @ the Berkman Center, LawMeme, bIPlog, politech, Freedom-to-Tinker, A Copyfighter's Musings and elsewhere--as well as the 'round-the-clock pulse-taker that is FurdLog. I hope you are, too.
Posted Saturday, September 20, 2003
Afraid to Go Back in the Air? You Should Be.After issuing a number of denials, JetBlue finally came "clean" about handing over the personal information of over one million of its customers to a Pentagon contractor. Its reason for doing so: to help the contractor test a new passenger-profiling system to identify potential terrorists. According to this NYT piece, the information was turned over in violation of JetBlue's own privacy policies, and then was used "to identify the passengers' Social Security numbers, financial histories and occupations."
To privacy advocates, this looks like a preview of air travel under CAPPS II, a new system that the Travel Security Administration (TSA) aims to implement. Not surprisingly, denials abound. Asked whether JetBlue was roadtesting CAPPS II, TSA spokesman Nico Melendez told a Mercury News reporter, "I really don't see how there could be any kind of a correlation."
But whether or not JetBlue was using its passengers as unwitting guinea pigs for CAPPS II, or for some other passenger-profiling system, is (well) beside the point. The fact remains that such a system is offically in the works. And if it is implemented, the future for privacy and civil liberties is far from pretty.
CAPPS II proposes gathering information from both government and commercial databases and using the information to "tag" each passenger with a color-coded score.
Basic privacy and civil liberties concerns aside, government databases are notoriously unreliable. And under the proposed rules for CAPPS II, pasengers will have only limited ability to fix any errors TSA has made.
Have I scared you yet? I hope so.
Fortunately, there is something we can do about this: we can send a letter to the Department of Homeland Security (DHS) and let the people in charge know what we think. Up until September 30, they will listen.
Posted Friday, September 19, 2003
Serious FunSarah Stirland has a priceless interview with Dan Gillmor and David Weinberger about their valiant efforts to Take Back the Word. The two are in rare form:
Q: In your view, what are the five most misused and abused words today?D & D's Word Pirates calls intellectual property "a bad metaphor leading to worse laws." Very nicely--and economically--put. This is something you could say in the proverbial elevator speech. Thrice.
Posted Thursday, September 18, 2003
A-Records Gone Wild
Luckily, we have the inimitable James Grimmelmann on very same subject: "Attention so far has been focusing on the ethics of the move (Positively Satanic), its effects on DNS and non-Web applications (Considered Harmful), and on possible technical responses...On the legal side of the fence, though, we're not just talking about a can of worms. We're talking about an oil drum of Arcturan Flesh-Eating Tapeworms."
Arcturan. Got that?
Ah: Seth's analysis has now been published. Especially damning (emphasis, mine):
VeriSign has apparently decided that the Site Finder service is preferable to the traditional DNS behavior. That decision is wrong....and especially useful for understanding the technical, rather than ethical, reasons why VeriSign's behavior is...wildly...inappropriate:
Making E-Mail Bounce or Disappear:...Broadly speaking, e-mail software is very likely to be confused by VeriSign's decision, since much of it was written with the explicit assumption that the nonexistence of a site could be detected directly in the DNS. This assumption is no longer valid.Bonus: Alex Macgillivray @ Bricoleur: "There are many reasons why this is really bad news. Question is, is there something that the law can do about it?"
Bonus #2: Ben Edelman @ Dave Farber's IP list: "Over the past three months, taken as a whole, Verisign had traffic rank 1,559. But today its traffic rank is 19 -- meaning, at least among Alexa users (who are generally representative of web users), the verisign.com domain has suddenly joined the top 20 sites, measured by page views."
I'm Not Dead...not yet, anyway.
Rather, the very much less dramatic Really Busy.
More to come later on today. Promise.
Posted Thursday, September 11, 2003
Hear, HearEFF's first-ever petition [hyperlinks, mine]: "We respect reasonable copyright law, but we strongly oppose copyright enforcement that comes at the expense of privacy, due process and fair application of the law."
Posted Wednesday, September 10, 2003
Sea LegsStill finding them, here @ EFF.
Posted Tuesday, September 9, 2003
Settled?Rumor is afoot that the RIAA has settled with 12-year old Brianna.
Later: The Inquirer staff wrote last month that the RIAA did not intend to target de minimus file sharers, "hoiking your average 12-year old kid into court...and stripping her or his piggy bank of his or her savings."
Now that is has done so, however, the piggy bank has been emptied--many times over. According to the AP, the settlement was for $2000.
Later #2: Says Wendy (via email): "If this is a 'solution' for Brianna, it's no solution for fans, who want a way to continue to use P2P legitimately--not to mention no solution for the artists, who won't see a penny of the $2000 Brianna's parents paid."
Later #3: Ira Rothken responds to the offer of shamnesty--with a lawsuit [PDF]: "This lawsuit...seeks a remedy to stop the RIAA from engaging in unlawful, misleading, and fraudulent business practices including advertising an 'Amnesty Program' to members of the general public that does not provide real amnesty from being sued and a 'Clean Slate Program' that does not provide a real 'clean slate.'"
Posted Monday, September 8, 2003
Word of the Day...shamnesty. Courtesy of Ren Bucholz and yours, free for the taking.
Update (Sept. 9): Why the RIAA's "Amnesty" Offer is a Sham [EFF].
Senator Norm Coleman (R.-Minn.), who will shortly hold hearings on the issue: "An amnesty that could involve millions of kids submitting and signing legal documents that plead themselves guilty to the Recording Industry Association of America may not be the best approach to achieving a balance between protecting copyright laws and punishing those who violate those laws." Indeed.
The 12-year old girl sued by the RIAA: "I got really scared. My stomach is all turning."
Posted Sunday, September 7, 2003
Form UR-SCROO D
Later: the real thing [PDF].
Posted Saturday, September 6, 2003
Why Are You so Awesome?So the day before yesterday I finally met Cory Doctorow, who it turns out has an office @ EFF just across the hallway from my new perch. Just as it was when I met Doc, I found myself somewhat at a loss for words. The episode reminded me of a Ben Stiller skit from a couple of years ago, in which Stiller played Bruce Springsteen in a parody of MTV's then-popular show, "Fanatic." The twist was that Bruce was the fan, not the worshipped celebrity. The object of Bruce's fanatical adoration, meanwhile, was Puff Daddy (pre-Diddy). At one point in the skit, Bruce-as-Puffy-worshipper is granted the opportunity to interview Puffy. So with a glazed look in his eyes--and clutching a collectible Puff Daddy doll protectively in his lap--Ben/Bruce turns toward Puffy and asks, straight-faced and with unabashed sincerity, "Puffy, why are you so awesome?"
No, I didn't ask Cory why he is so awesome. But you know, close.
Which brings me, admittedly in a roundabout way, to the point of this post: to bring your attention to the good work(s) going on right now in the blogosphere--stuff that impresses me, but I hope, not unto inarticulate sputtering. After a month or so away, I was especially excited to see conversations blooming that help clarify why any of us should be concerned about a decision like the one in Chamberlain Group v. Skylink--or for that matter, Fox v. Franken. It seems to me that each "story"--as Charlie Nesson might call them--represents an opportunity to communicate in simple terms what we mean when we say that the current intellectual property regime is unbalanced. It's obvious on its face that Chamberlain Group v. Skylink isn't only about garage doors--it's about a law [PDF] ripe for many forms of abuse, with a number of easy victims: in this case, competition and technological innovation, and in others, privacy, legitimate speech, scholarly inquiry and fair use.
Without further ado, then, here is my short list of recent posts and articles that I've found especially interesting and/or instructive--or, okay,--why not?--awesome.
And finally, via Dan Gillmor, a quote from Larry that captures the tenor of the times and puts the current RIAA crusade in perspective, "So defraud Californians of $9 billion, pay $1 million. But develop a new technology to make it easier for people to get access to music that they have presumptively purchased: pay more than $54 million."
With that, I'm off for now. Promise to be shorter, if not sweeter, next time around.
Posted Friday, September 5, 2003
Before You Bite that Carrot
Indeed. The RIAA represents the recording industry, not The Law--despite efforts like this one to blur the line between the two.
Posted Thursday, September 4, 2003
While You Were Out
More to come, as soon as I am able.
Post script #2: On the topic of marriage, Siva has some moving things to say, with which I wholeheartedly agree. Thank you, Siva.
Posted Friday, August 15, 2003
Wendy Seltzer v. Howard Berman on ACCOPS
Posted Thursday, July 31, 2003
Takin' a Break, Gettin' Hitched!
For those who missed my announcement below, I won't be here @ Copyfight for a bit. Not only am I moving to San Francisco, I am also getting married at the end of August--to the sweetest man I've ever met. Hence the headline above, stolen from the similarly blessed Siva.
I'm feeling pretty grateful.
Until next we meet, take care.
Update (August 1): Heavens! Looks like I inadvertently gave the impression that Siva and I are a couple. Nope--we just happen to be getting married at roughly the same time. (Speaking of which, how about a virtual toast to Siva, everyone?)
While I am here, one quick recommendation: Lawrence Solum on copynorms. Good stuff to chew on for the next six weeks.
And don't miss Copywrongs.org. The plan is to host "personal and shared blogs for all recipients of file sharing-related subpoenas and other enforcement actions."
Posted Wednesday, July 30, 2003
Feds May Ask, But Colorado Library Won't Tell
Apropos of which, here's EFF on ISPs and "accidental" ISPs (emphasis & hyperlink, mine): "The Digital Millennium Copyright Act gives people who claim to own copyrights tremendous power to invade the privacy of Internet users. With only a clerk's stamp on a form, almost anyone can demand that an Internet service provider reveal its users' personal information--if the ISP has that information."
Apropos of which #3: The Citizen's Protection in Federal Databases Act: "Senator Ron Wyden (D-OR) today introduced to the U.S. Congress the Citizens' Protection in Federal Databases Act (CPFDA), a bill requiring federal agencies that collect personal information to report what information they collect and how they intend to use the information."
Apropos of which #4: ACLU Files First-Ever Legal Challenge to the USA Patriot Act: "Ordinary Americans should not have to worry that the FBI is rifling through their medical records, seizing their personal papers, or forcing charities and advocacy groups to divulge membership lists."
Posted Tuesday, July 29, 2003
For PC Magazine Readers
The question calls to mind a trio of past articles by John Hiler: The Tipping Blog, Borg Journalism and Blogosphere: The Emerging Media Ecosystem. All three read as field research, tracing patterns and describing processes rather than relying upon generalizations. Hiler looks at the trees to envision the forest, rather than vice versa--and in so doing, comes as close as anyone has to pinpointing what makes the weblog form/function unique.
What has this to do with politics? Weblogs aren't magic. They're tools, just as more traditional websites, email list-serves, bulletin boards and chat rooms are tools. I would (cautiously) venture, however, that their unique qualities make them more effective for certain types of discourse--political discourse key among them.
Unfortunately, I cannot linger here today--either to explore Conyers-Berman or the Blog Politic. For those of you who can, however, PC Magazine has thoughtfully set up its own bloggish forum, and Dvorak appears to be all ears.
Update: Derek Slater, in an open note to Dvorak, "I hope your goal in writing the column is genuine, because it is a step in the right direction."
Update #2: Frank Field, on Dvorak's call to arms on Conyers-Berman (now gone Big Media): "Aside from re-upping with the EFF and the ACLU, I'm going to have to take a close look at what more I could be doing."
Posted Friday, July 25, 2003
Right About Now
...is when posting here will become less frequent, as I'm heading into Serious Transition territory. Things will pick up again in 4-5 weeks, after I've settled in @ EFF.
Following, two additional recommendations--plus a taste of what's on tap:
GrokLaw: "[If] you want to Do Something about SCO, the first thing to do is think. Ask an attorney how to be effective before you act."
George Scriban @ Blogaritaville (tongue planted firmly in cheek): "In an unusual move, Congress today elected to protect children from online pornography."
And with that, I'm off. Be back soon.
Where It's Art
No, Not ReallyRIAA Opens Detention Facility for Suspected File Sharers: "Our goal is to eliminate the threat these thieves represent to our industry," said RIAA President Cary Sherman. "We don't care if the person is eight, eighteen, or eighty or unaware of the law. If we catch 'em sharing files, we're sending them to jail. Not just any jail. Our jail. We don't even care if they're legally sharing their own personal music files with a family member. We don't care if they're simply transferring their own peronal music from their desktop machine to their iPod. If we catch 'em doing it, we'll be there to take them away. But let me be perfectly clear: even if we don't catch 'em doing it, we'll be there to take them away if we so much as suspect they're sharing files, or might like to one day."
Posted Thursday, July 24, 2003
Subpoenadefense.org: "Even if you did have copyrighted material on your computer, you might have a lawful right of fair use."
Update (July 25): EFF: "Concerned that information about your file-sharing username may have been subpoenaed by the RIAA? Check here to see if your username is on one the subpoenas filed with the DC Circuit Court."
Update #3: Seth Schoen: "The RIAA is sending subpoenas to a lot of ISPs to try to identify people. As we previously explained in an amicus brief, the procedure they're using for this, created by 17 USC 512(h), lacks a lot of procedural safeguards normally associated with subpoenas."
Brace Yourself IIMichael O' Connor has now read the James Grimmelmann piece I pointed to below:
Mwah ha ha hah hoo ha ha haaa hah ha ha bu wu wooooo wah ha heee hee hee heeheeheeheehee wooo huh buhuh wah ha hah ha ha ha ha hoo... gasp...oh god...I'm sorry, I ha ha HA HA HA HA HAAA HAAAH AA HO HO HEE HEEEEEEEEE HUH HA HA HO HE AHA AHO UHUH heh eh heee heeheeheeheehee SNORT fu...ya bu.. yu bas... fu...uh ah...pffftt...What he, uh, tried to say. Go ahead: take a look.
Posted Wednesday, July 23, 2003
Later, AggregatorIt's likely that I won't be here for the rest of the day; for updates on things copyfight, I advise that you visit Derek Slater's aggregator.
Nice IIEFF's Cindy Cohn, on the MIT/Boston College motion to quash RIAA subpoenas: "It's very troubling that the RIAA's position is not only that they can throw out our basic privacy rights but that they can force all ISPs nationwide to respond to subpoenas out of a single court rather than a local court. In other words, we can add basic notions of jurisdiction to the long list of things that the RIAA is willing to set aside in their crusade."
NiceDan Gillmor, on the MPAA's RespectCopyrights.org: "The point of copyright is not solely to pay creators. It's equally designed to get ideas and inventions--arts and sciences and scholarship--first into the the public sphere, and ultimately into the public domain, where other creators build on them to make new art, new science, new scholarship."
Update (July 24): Studios Demanding Too Much in Their Copyright Campaign.
Posted Tuesday, July 22, 2003
Doc Searls on the CopyfightDoc, over @ Linux Journal:
Bonus: Doc again, this time in a fireside chat with Chris Lydon: "I suffer the delusion that the world really needs to hear what I have to say."
You may recall that a number of familiar folks testified back in April and May during the rulemaking proceedings on the Digital Millennium Copyright Act (PDF), arguing for the exemption of certain classes of works from the DMCA's blanket prohibition against circumventing technological measures for copy protection. Following the hearings, several of the witnesses who testified were asked to answer follow-up questions.
Here, the complete record of post-hearing Q & A, with replies to hard questions about the DMCA by a diverse group representing the full spectrum of interests in the debate--including Fritz Attaway of the MPAA, Jonathan Band of the ALA, David Burt of N2H2, Jim Tyre of the Censorware Project, and Gwen Hinze of the EFF.
Update (July 23): Gwen, on EFF's reply comment and further comments [both in PDF]: "We welcome the Copyright Office's interest in understanding the real impact of the DMCA on consumers' everyday non-infringing uses of CDs and DVDs. We have urged the Copyright Office to grant exemptions to remove the DMCA's chilling effect on consumers' existing rights and to restore the constitutionally-mandated balance to copyright law."
...for James Grimmelmann's deconstructive take on Eldred v. Ashcroft: How Artists and Creators Finally Got Their Due [PDF], a note recently published in the Duke Law & Technology Review.
Grimmelmann's central conceit is that he's too dumbfounded by the article to respond properly; for this reason, "Uncle Charlie" and two children--"Susie" and "Pete"--step in to elucidate its arguments. Needless to say, hilarity ensues.
It was also an accurate ruling because, under either a natural rights or property theory, copyright deserves infinite protection.
My sides hurt. Take an aspirin (or two), then head on over to LawMeme to read the whole thing.
Snippet from a recent entry: "I've been trying to figure if SCO's licensing program announcement is more like a mutant meatspace spam, a Mafia offer of 'protection' for a fee, or just a schoolyard bully demanding your lunch money."
Thanks to Frank for the pointer.
Posted Monday, July 21, 2003
Quick PicksSorry things are slow here @ Copyfight; due to the Big Changes mentioned earlier, I am by necessity more often @ Craig's list these days than anywhere else.
Following, a brief tour through the must-reads du jour:
SCO asserts copyright in Unix, causing the company's shares to jump. Observes Reuters, "The move is likely to intensify the wrath of Linux advocates against SCO." Yep.
The Home Recording Rights Coalition gets some ink on its stand against the Piracy Deterrence And Education Act of 2003. "I am concerned that we are directing the FBI to conduct an educational campaign on the niceties of copyright law," said Rep. Rick Boucher (D-Va.), "Will they also inform people about fair use?"
Congresswoman Zoe Lofgren (D-CA), touting her own Balance Act at the hearing on the above: "[This] Subcommittee should examine digital issues from all sides, not focus solely on how they affect copyright owners. We should look at how our laws affect the technology industry. We should examine whether or not the DMCA is chilling investment and innovation."
File-sharing sleuths BayTSP are profiled in the San Francisco Chronicle:
When Manni Nagi typed in the name "Eminem" on his computer screen, he came up with a list of 87,974 copies of songs by the rap star within minutes.A company called PeerCache finds itself under record-label scrutiny. Says the IFPI, the international arm of the RIAA: "Just using the word 'caching' doesn't mean that the service is automatically exempt from copyright liability."
And in case you missed it from last week: Kevin Poulsen unveils the other suing frenzy: DirecTV vs. purchasers of smartcard technology capable of being used to help pirate DirecTV's satellite signals.
Finally, three outstanding offerings from the A.V. department:
Posted Friday, July 18, 2003
Blogalogue of the Day
Bonus: Richard Vermillion, weighing in @ Professor Solum's weblog: "Like many discussions about copyrights, yours quickly turned to a discussion of the 'property' question. Encouraged by the 'intellectual property' label, advocates on both sides start listing their reasons that IP is a special kind of property, and, if so, what kind. But I would argue that property is the wrong metaphor all together, for several reasons."
MGM v. Grokster Expedited
AP: "A federal appeals court will speed its review of a landmark judgment that absolved two companies of blame for illegal copying by users of file-swapping software."
Do Not Pass Go II
Bonus #2: Two more on Berman-Conyers:
Slam-Dunk IIThis interview with Larry Lessig by my fellow GrepLaw editor, Mikael Pawlo. Refreshingly light yet flavorful, like a mint julep. Excerpt:
Q: If there was no Lessig, who should we turn to in the matters discussed in this article?
Posted Thursday, July 17, 2003
...and a choice quote from Carrie McClaren, who curated the exhibit: "Copyright is often so esoteric and theoretical. We wanted to make copyright's problems as real to the average person as they are to our featured artists."
Nice work, Derek (very).
Do Not Pass Go
Reuters: "Internet users who allow others to copy songs from their hard drives could face prison time under legislation introduced by two Democratic lawmakers on Wednesday...The Conyers-Berman bill would operate under the assumption that each copyrighted work made available through a computer network was copied at least 10 times for a total retail value of $2,500. That would bump the activity from a misdemeanor to a felony, carrying a sentence of up to five years in jail."
Katie Dean @ Wired: "The bill 'clarifies' that uploading a single file of copyright content qualifies as a felony."
EFF's Jason Schultz: "If this is an attempt to clarify existing law, it goes way overboard. I think it's an attempt to criminalize the use of computer networks."
Later: Dave Farber: "Do these guys have any idea what they are talking about? Let's see, is running your own SMTP system a peer operation? Is it not the case that email may contain copyrighted material (like a forwarded email)? And thus...Off to jail?"
Posted Wednesday, July 16, 2003
Metallica Fights for Ownership of E, F ChordsI'm with Siva; I'll believe this when it's in some fashion substantiated. [Note: in case you're impatient and/or don't have time to read further--yes, guys, I know it's a hoax. Below, an amusing riff on the episode, plus Frank Field's equally amusing sleuthing.]
A member of the Pho list: "[Is] this a joke where you've knowingly cross-posted FUD to 7 email lists hoping to spawn 7 concurrent, identical conversations which go as follows?:
Larry & CC to the rescue. Always. ;)
Later #2: Frank makes extra double-certain that everyone knows that the story is a hoax--and uncovers another sly wink or two on the way.
Later #3: Siva: "The world is filled with true stories almost as loopy." Indeed.
Among my favorite picks? Doc Searls weighing in on the Lawrence Solum/Minn Chung article many of us have been discussing: "Interesting to think about how this squares with World of Ends, among other ideas. The paper floats a legal interpretation of both Larry Lessig's extensive writings about the Net and Kevin Werbach's A Layered Model for Internet Policy (among other documents; but chiefly the works of those two)."
Also hitting it out of the ball park (or some other equally apropos yet less fatigued cliché): our friends @ CNET. See:
Bonus, via Hylton: How to Save the World writes about How Innovation Could Save the Entertainment Industry from Itself.
Bonus #2: Two posts offering audio and/or video of recent discussions about weblogs & so-called semiotic democracy: Eugene Volokh and the Opinion Marketplace [Berkman's Chris Lydon] and ILAW 2003--Charlie Nesson's Panel [On Lisa Rein's Radar].
Oh, for Heaven's...sake. Or not.
Posted Tuesday, July 15, 2003
A GNU Refresher @ Stanford
Okay, so we all know GNU's Not Unix. But what is it, exactly? And what are the critical legal issues that surround the GNU OS, the Linux operating system kernel, etc.?
Lauren Gelman writes to tell me that the Free Software Foundation and the good people @ Stanford's CIS will soon be offering a one-day seminar to explore these questions. Details are available; do check it out.
MPAA Wants Your Privacy First, Questions Later
Update, July 16: "A key committee of the California Senate yesterday delayed until January consideration of a bill that would give basic privacy protections to anonymous speakers online. The Electronic Frontier Foundation (EFF) championed the bill.
'Even though this Internet privacy bill did not pass the Senate Judiciary committee at this time, several Senators indicated a desire to protect privacy and anonymity online," explained EFF Legal Director Cindy Cohn, who testified on behalf of the legislation. "We believe the Senate will come to understand that this bill poses no threat to legitimate lawsuits, but will protect the rights of whistleblowers and other anonymous speakers online.'"
God Squad Takes on File-SharingNo, really.
Later (June 16): Siva Vaidhyanathan: "Some might (and have) ridiculed this effort by the Christian music industry. But this is a welcome development."
Later #2: EFF's Jason Schultz, via email: "I think Siva is right. The Christian Groups are far more likely to be concerned with the actual outreach to their audience and promotion of their artists (and message) than the pure intermediary profit motive that the RIAA has. Moreover, Christian values (while not my personal preference) tend to be suspicious of heavy-handed legal intervention, welcome suggestions that they take personal responsibility for their actions, and are trained to show compassion and understanding to the circumstances of others (unlike the RIAA). Not that these values always play out (gay-bashing, women-hating, etc), but they are at least there within the culture as a potential resource."
Posted Monday, July 14, 2003
BackblogMy apologies for the relative quiet here @ Copyfight; as I wrote last week, Big Changes are afoot, so I've been more than a little distracted.
Following, a selection of pieces & posts that nevertheless caught my eye:
Berkman's John Palfrey: "I have some bad news: fair use is unreliable as a defense in this day and age, on the Web in particular. I very often hear technical people rely on fair use as a reason for doing something, and those people are almost always overstating its reach."
Matt Morse: "If you still doubt the importance of fair use, speak up. If the messages we're using so far aren't working, I'd rather find different messages than just keep shouting the same one."
...and finally, Lawrence Solum with a more sober look at copyleft v. copyright than this one: "This is one in a series of posts aimed at creating a meaningful dialogue between the academy and the profession over IP. On the one hand, many IP lawyers see the academy as the copyleft, in other words, as anti-IP. On the other hand, many in the academy believe that the profession has intellectual blinders on, making arguments that favor their client's interests but lack intellectual integrity. My suggestion is to focus on the merits of the arguments."
Later (July 15): C.E. Petit responds: "The main point of my commentary is that the proponents of eviscerating intellectual property rights, whether by abolition of copyright or some other means, seldom consider the effects of those changes upon the individual creators of the property...A much simpler and less-disruptive means of dealing with the entire issue would be reform of the various definitions of 'author' under the Copyright Act. This would allow US law to maintain harmony of term with the international concensus without simultaneously ratifying the abuses perpetrated by many 'authors' who did not actually create the work, but only invested in it."
There are many being said for Ann Craig today. I add mine.
Vintage George Scriban (emphasis, mine): "I think we're getting to the point where the symbolic term 'fair use' has to be replaced in conversation with the actual things we will lose if Big Content gets their way.... These are things we're used to doing every day, whether or not we realize it's exercising doctrine of 'fair use' or 'first sale.'"
Yeah, I missed him, too.
Posted Friday, July 11, 2003
The Last Mile II
Simson Garfinkel lays down a few rails in an accessible piece on end-to-end. The especially nice last line: "Whenever you hear a company bragging about the great services it can offer directly in its network, understand that it is trying to kill end-to-end. Personally, I'd rather have a dumb network, a pair of smart endpoints, and a future." (Via B2FXXX.)
Later #2: And the meme goes on...
Posted Thursday, July 10, 2003
Brand New BabeNow that I am headed west, methinks Dave Winer will have to take over as Berkman's babe-in-residence, yes?
I'm afraid that with a smile like that, he's got little choice in the matter.
The Last MileThe phrase "the last mile" might be invoked most frequently these days in the context of broadband deployment, but I'm taking the liberty now for a bit of creative repurposing. The last mile I want to focus on is the one between those of us who take Copyrights and Copywrongs home at the end of the day lovingly to underline turns of phrase (okay; so now you know) and those who get that something big is happening in copyright online but don't understand why they should care. For these folks, the question remains: What's at stake here? What do we lose by doing nothing?
I've been working on answers to those questions here at Copyfight for just over a year, but today I'm taking another step: I have accepted an offer from the Electronic Frontier Foundation to become an EFF Webwriter/Activist. At EFF I hope to take this challenge to a whole new level, helping to lay that last mile while strengthening EFF's connections to others working all along the line. This includes, of course, connections with the good people here at the Berkman Center, without whom I would not have picked up the hammer and spikes at all.
Yes, Copyfight will go on, though sponsorship may (or may not?) change. I start at EFF in September, and will be in transition mode for some time. I hope nevertheless to be here almost daily.
All of this said, following are a few bits and pieces I'm a bit late in passing on to you; more to come.
Posted Monday, July 7, 2003
...quotable moments before I leave for the trip back to Cambridge:
Grokster president Wayne Rosso: "Forget about it, dude--even genocidal litigation can't stop file sharers."
Ian Clarke of Freenet: "If it is moral to make guns, knives or anything else that can be used for both good and ill, then it is certainly moral to create something which tries to guarantee a freedom that is essential to democracy."
Later (July 10): I like what Scrivener's Error says here about taking care to engage with those on the "other side" of debates in which one is interested. To my view, this can only lead to a higher level of education about the issues at stake for everyone involved. Of course, I did not comment on the quotes above, nor do I necessarily agree with them. So in essence I was doing precisely what Scrivenor's Error is doing: passing along thoughts and opinions I find provocative and/or illustrative of what's going on in this debate.
Posted Sunday, July 6, 2003
Quotable + Notable
Also worth the visit:
I beg your brief indulgence for a shout-out to the fascinating and friendly people with whom I spent time with this past week at ILAW: J.D. Lasica, Lauren Gelman, Kevin Poulsen, Elizabeth Rader, Lisa Rein, Kathryn Yu, Derek Slater, James Grimmelmann, Frank Field, Jim Flowers, Glenn Brown, Alex Macgillivray, Colin Mutchler, Jack Lerner, Avniye Tansug, Ray London, Wendy Seltzer and David Hornik.
Thanks, everyone; you made my week especially memorable.
Posted Thursday, July 3, 2003
Grimmelmann in the House
That's right, folks--James Grimmelmann of LawMeme dropped by at ILAW today, along with his fellow EFF interns. And he didn't simply sit and watch. Instead, he wrote up his observations, culled some terrific quotes and sent the whole along to me for Copyfight.
Below, the Grimmelmann take on today's sessions, focusing in particular on a panel discussion on the digital copyright issues, moderated by Jonathan Zittrain and featuring Charlie Nesson, Les Vadasz and the EFF's Fred von Lohmann.
First, his collection of quotes, from the ever-quotable JZ:
"So some poor schmuck who has open Wi-Fi access gets hit with a subpoena because someone else skulked up in the dead of night to upload that latest Black-Eyed Peas song?"
Second, a series of nicely articulated observations on the day's sessions:
Making Unthinkable Lawsuits Thinkable
What can I say? Thank you, James.
Posted Tuesday, July 1, 2003
Blogging ILAW IIAs you can see below, I'm at the Internet Law Program in Stanford this week, posting notes as it unfolds. Yesterday, we had connectivity problems at Harvard, so I began posting here rather than at the Berkman website. Today, however, I am back at the Berkman website, barring future interruptions.
I hope you will join me there.
What I Missed
...but that you shouldn't:
As Alex says, more to come on both.
In the meantime, do check out Derek's musings on same. I haven't yet had time to give it a read-through, but knowing Derek, I'm confident it's both thoughtful and thought-provoking stuff.
Posted Monday, June 30, 2003
ILAW--Lessig on Law, Code & Architecture
[We're having connection trouble over at the Berkman site, so it turns out that I may be blogging much of ILAW from here instead. Below, my complete rough notes from Larry's session this morning on law, code and architecture. Here are Aaron Swartz, Frank Field and Jim Flowers on same.]
Without further ado:
I've got some excellent company. Among the weblog writers in attendance: J.D. Lasica, Frank Field and Aaron Swartz. Wendy Seltzer and Alex Macgillivray, meanwhile, are serving this year as guest lecturers--along with Former FCC Chariman Reed Hundt, Intel Director Emeritus Les Vadasz, Cisco General Counsel Mark Chandler, EFF Senior Staff Attorney Fred von Lohmann, and Creative Commons Executive Director (and former Berkman-ite) Glenn Brown.
Later: It appears that we may be having connection trouble at the Berkman Center website, so I may be posting here instead.
Posted Friday, June 27, 2003
ApologiesI've periodically been having Net connection trouble today; rest assured I'll be back as soon as I am able.
You Can Say That Again
David Post, over @ the Volokh Conspiracy: "The recording industry's battles over Internet 'piracy' have received most of the buzz in this area, but in many ways this clash between scientists and scientific publishers is equally important for the future of copyright law."
Later: More @ LawMeme.
Posted Thursday, June 26, 2003
Where It's At
But first, a few quick pointers in the wake of yesterday's Big News RE the Public Domain Enhancement Act (hyperlinks & emphasis, mine):
Posted Wednesday, June 25, 2003
RIAA Down to the Brass Tacks...or would that be knuckles?
As Wendy says, I've been working through a mess today--but not this one. More, as I do.
Why do Cyberprofs "Hate" Copyright?Jonathan Zittrain asks, and answers.
Still catching up on my reading, post-Filter. The best bits so far:
Excerpt, via DigitalConsumer.org, "So Eldred was a loss: It let the Sonny Bono Act extend the quantity of copyright protection. The DMCA does something different: It tries to toughen the quality of copyright, by giving owners more thorough protection than they previously had. Justice Ginsburg brushed off concerns about copyright quantity. But as to copyright quality, she seems to have opened the courthouse doors for the information freedom fighters to come storming back in."
While we're in the neighborhood, check out Phil Gengler's Copyright's Unnatural Evolution; it looks like he's seeking feedback on the piece.
Posted Tuesday, June 24, 2003
Just in Case...you weren't smelling the smoke: Internet Sparks a Copyright Fire [Robert MacMillan, Washington Post].
Posted Monday, June 23, 2003
Something Profoundly Disappointing
The blocking technology, intended to keep smut from children, does not violate the First Amendment even though it shuts off some legitimate, informational websites, the court held.
The court said because libraries can disable the filters for any patrons who ask, the system is not too burdensome. The 6-3 ruling reinstates a law that told libraries to install filters or surrender federal money."
Later: Now there is.
Later #2: More, from beSpacific.
Later #3: Jim Tyre, with the syllabus and what Google News is turning up. And don't forget to pay Jenny a visit: "Someone please correct me if I'm wrong, but there's no additional funding for libraries to start purchasing site licenses for filtering software, using staff time and resources to create internal solutions, or outsourcing the job of building something. So now we're supposed to divert existing monies (that help pay for the access itself?) from our already weakened budgets in order to be compliant with this decision? I'm still looking for the common sense logic here...."
Later #4: EFF (hyperlinks, mine): "The Electronic Frontier Foundation (EFF) and the Online Policy Group (OPG) today released a study documenting the effects of Internet blocking, also known as filtering, in US schools. The study found that blocking software overblocked state-mandated curriculum topics extensively--for every web page correctly blocked as advertised, one or more was blocked incorrectly.
'Restrictions on viewing constitutionally protected speech contradicts the primary educational mission of schools,' said EFF Media Relations Director Will Doherty. 'CIPA holds students and teachers hostage to Internet blocking software that does not and cannot fulfill legal requirements and likely prevents students from obtaining a well-balanced, globally competitive education.'"
Later #5: David Burt, a former librarian who now works for N2H2 [audio file, NPR's All Things Considered]: "Having to assist patrons with finding things, and having to keep some things behind the desk, and giving people access to them when they want them, is traditional. It's what librarians do."
Later #6: Eugene Volokh: "May libraries filter adult access to the Internet? The American Library Association case doesn't really resolve this question (a question that has itself led to ligitation)."
Fair Use, Post-EldredVia LawMeme: A Hidden Hope for Fair Use [Evan P. Schultz, Legal Times].
Excerpt, via DigitalConsumer.org, "So Eldred was a loss: It let the Sonny Bono Act extend the quantity of copyright protection. The DMCA does something different: It tries to toughen the quality of copyright, by giving owners more thorough protection than they previously had. Justice Ginsburg brushed off concerns about copyright quantity. But as to copyright quality, she seems to have opened the courthouse doors for the information freedom fighters to come storming back in."
Posted Friday, June 20, 2003
...this way comes [PDF].
The scoop, by way of Elizabeth Rader: "On June 20, CIS's Cyberlaw Clinic, with Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, filed a brief in the US Court of Appeals in support of petitions for review of the Librarian of Congress’s determination last year of royalty rates for compulsory copyright licenses that apply to webcasting. The Librarian's ruling, which set the royalties many times greater than those paid by terrestrial radio stations for use of musical works, was based on a lengthy expensive arbitration before a Copyright Royalty Arbitration Panel. The Brief argues that smaller entities such as small Internet radio stations and nonprofit educational radio stations were denied due process under the Fifth Amendment when the Library refused to make any provision for them to participate in the arbitration without incurring a share of the arbitrators fees, which together were over one million dollars."
...this way comes [PDF].
Later (June 20): The scoop in brief, from Louis Trager of Washington Internet Daily (hyperlinks, mine): "The bipartisan leadership of the House panel on online copyright issues introduced a bill [above] that would intertwine the FBI with rights owners' efforts to stop unauthorized file-sharing. Courts, Internet & Intellectual Property Subcommittee Chmn. Smith (R-Tex.) introduced the proposed Piracy Deterrence & Education Act (H-2517) late last week with co-sponsorship by ranking member Rep. Berman (D-Cal.) and No. 2 Democrat Conyers (Mich.).
'I would be concerned by a bill that turns the FBI into private cops and gives private cops the right to claim they're coming from the FBI,' Electronic Frontier Foundation lawyer Wendy Seltzer said."
The RIAA's Cary Sherman: "The Smith-Berman legislation will strengthen the hand of the FBI and other federal law enforcement officials to address the rampant copyright infringement occurring on peer-to-peer networks...This common sense, bipartisan bill will help ensure that federal prosecutors across the country have the resources and expertise to fully enforce the copyright laws on the books--especially against those who illegally distribute massive quantities of copyrighted music online."
Later (June 24): Orrin Kerr: "All of the recent talk about ways of enforcing the intellectual property laws online makes me wonder if there isn't a better approach than allowing vigilante self-help measures or forcing the FBI to start bringing federal prosecutions. Here's a thought experiment: How about allowing state prosecutors to bring criminal copyright cases in state court?"
Hear, HearReuters, via GigaLaw:
A dispute between Internet providers and the recording industry over copyright protection and customer privacy has drawn the attention of the Senate Commerce Committee chairman.
Later #2: Dana Blankenhorn reminds us that the McCain hearings could amount to mere political posturing:
The recent decision revoking online anonymity is opposed by most people. So Sen. John McCain promises hearings, even a bill, to address the problem. The same process is occuring regarding the FCC media ownership rule.
Posted Thursday, June 19, 2003
Copyright ImpasseDan Kennedy scoops a portion of the forthcoming issue of Legal Affairs. Blame Zittrain.
Later (June 20): Mary Hodder, with the scoop on the scoop: "While compulsory licensing may not be the answer, though it has been much talked about, keeping the discussion going in the press about alternatives to goon-like behavior is very much appreciated. Note to the RIAA: we would love it if you would just offer the music at a fair price and in an easy, organized manner, fairly compensating the artists, for digital download."
Posts to PonderFour:
Edward Felten, over @ Matt's: "The key to untangling this issue is to recognize that while the *copyright* in a work can be owned as property, the work itself cannot. Ownership of the copyright gives you certain rights, but it doesn't give you absolute control over all uses of the work."
Nesson on the Commons
Berkman's Charlie Nesson: "Imagine it this way: how cyberspace is built makes a great deal of difference to how it is to live there....Ultimately, the goal is balance. You don't want an environment that's all open--there's no shelter. You don't want an environment that's all closed--you can't breathe. You want a balance in this environment, with some tension. We certainly have the tension. I don't know whether we yet have the balance."
Contract Trumps Copyright--Again
Posted Wednesday, June 18, 2003
Something About Harry
Hatching a Plan to Tame P2PYesterday's session on IP @ Internet Law 2003 concluded with Charlie Nesson talking through the pros and cons of technological self-help:
CN: The question of whether you can do technological defense is an interesting one. The music catalog is almost dead. But there is hope for new songs...Two strategies for controlling a brand new release: 1.) spoofing, 2.) interdiction. You direct a focused DoS attack on the sharer. Is this legal? I think it is. Because you will not be harming this machine--only their capacity to share. Very little intrusion.Not long afterward, the news broke that Senator Orrin Hatch (R-Utah) "favors developing new technology to remotely destroy the computers of people who illegally download music from the Internet."
Consider the following statutes:Do check it out; John is continuing to post new bits as the session unfolds.
Bonus: Courtesy of Lawrence Solum, Michael LaBossiere's discussion of the Berman bill, authorizing self-help by copyright owners against those who distribute pirated electronic copies of copyrighted works.
Bonus #2: Dana Blankenhorn on Orrin Hatch: "What do you call someone who advocates the destruction of the property your livelihood depends on to fight a crime you may not consider a crime, and may not in fact be guilty of?
I call him a terrorist, too."
Bonus #3: Larry Lessig: "Senator Hatch has been swallowed by the extremists. (Though this might not be such a bad idea. Can we bomb the offices of stock brokers thought to be violating SEC regulations? Or bulldoze houses of citizens with unregistered guns? Or--yes, this is good--short the telephones of people who use indecent language?)"
Bonus #4: Ed Cone quoting Rick Boucher on Hatch, via Dave Winer: "'I think he was expressing sympathy with the frustration felt by the recording industry,' said the 10-term Democrat, who sits on the House subcommittee on intellectual property, which last year euthanized the similarly-themed Berman-Coble P2P piracy bill.
'Mr. Hatch is chairman of the Judiciary committee, so we have to take his announced views seriously, but I don't think this had serious legislative intent.'"
Ah--but then there is serious strategic intent.
Bonus #5: Senator Hatch hinting at future legislative remedies that, in the wake of yesterday's over-the-top rhetoric, will appear more "middle path": "I made my comments at yesterday's hearing because I think that industry is not doing enough to help us find effective ways to stop people from using computers to steal copyrighted, personal or sensitive materials. I do not favor extreme remedies--unless no moderate remedies can be found. I asked the interested industries to help us find those moderate remedies." (Thanks, Mary.)
Bonus #6: Rant, Slashdot-style, from a member of the Cyberia-L list: "Why bother with expensive technology? Why can't they just send over a couple of big guys with a sledgehammer? Come to think of it, we could use this approach in lots of situations:
On the other hand us lawyers would likely be out of jobs. Just in case Orrin gets his way I better start hitting the gym. Maybe I could build up my arm muscles ripping up copies of the Constitution."
Bonus #8: Amish Tech Support: "I am very impressed with your website, Senator. However, I'm assuming that you are using Milonic Solutions DHTML menu under the non-commercial license agreement, correct? Have you or any member of your staff notified Milonic Solutions as to your intentions regarding the use of this software as per the license agreement?"
It's the Architecture, Stupid--Part IIYou recall Lawrence Solum and Minn Chung's new paper, The Layers Principle: Internet Architecture and the Law? Only two days after posting, it has already elicited two thoughtful responses:
Derek Slater: "Whether or not this reasoning would actually work, it's interesting to think about how 'the normative basis for the layers principle is already anchored in the deep structure of American law.' I wonder: where else, outside of Sony, can we find it?
Edward Felten: "Solum and Chung are right on target about the importance of layering. They're on shakier ground, though, when they relate their layering principle to the end-to-end principle that Lessig has popularized in the legal/policy world. (The end-to-end principle says that most of the 'brains' in the Internet should be at the endpoints, e.g. in end users' computers, rather than in the core of the network itself.) Solum and Chung say that end-to-end is a simple consequence of their layering principle. That's true, but only because the end-to-end principle is built in to their assumptions, in a subtle way, from the beginning."
Later: Larry Lessig: "Lawrence Solum and Minn Chung have a comprehensive and powerful view of layers in network architecture, nicely linking that architecture to policy implications, in particular, how governments regulate."
Posted Tuesday, June 17, 2003
...this project website, via my referrer logs.
Larry: "Matthew Rimmer has a careful and insightful piece about Eldred v. Ashcroft. He has some good criticism of the Eldred Act. Or at least, in the best of all possible worlds it would be good criticism.[...] There are many who have written brilliantly about what is right in this context. Rimmer's piece is an addition to that. But the hard problem is how to make the right real. That is what this movement needs now."
Speaking of making it real, Sarah Lai Stirland is doing a Felten over @ Connected with regard to the issue of privacy; that is, she's taking a hard look at policy by starting with what's really happening to individuals, right now.
The title of the post: Do You Want Supermarket Employees to See the Size and Color of Your Underwear?
Well, do you?
JP and JZ on IP II
This morning's Internet Law 2003 session has concluded; below, my rough notes, with only a touch of polish.
Quotable moment: Jonathan Zittrain: "I'm the Internet guy; I don't care about doctrinal questions. Go tell it to the Connecticut legislature."
Quotable moment #2: JZ again, on how credit card companies can be used as intermediaries in halting online gambling: "It makes it harder to go from zero to gambling in 45 seconds."
And now to the meat & potatoes.
Second, a handful of snippets from the discussion on IP promised below:
They were right; it was a whirlwind overview. I naturally wanted more, especially with regard to Charlie's hypo RE technological self-help. I may come back to PIL this week for a second helping. We'll see.
Here's a snippet from the description of this morning's session here @ PIL:
Right now, we're at the "fiddling with wires" stage; stay tuned.
Posted Monday, June 16, 2003
JP and JZ on IPIt turns out that tomorrow (June 17), I'll be blogging Jonathan Zittrain and John Palfrey on current IP disputes, from Internet Law 2003 (@ Harvard's Program of Instruction for Lawyers), which runs from 9:45 a.m.-11:15 a.m. EST. It's gonna be good stuff. See you then.
Happy Birthday...to Furdlog, a year and one month old today.
It's the Architecture, Stupid
Lawrence Solum and Minn Chung have posted a research paper that asks a fascinating question--whether and how the architecture of the Internet should affect regulation of the Net. Their answer? Regulation should be governed by something called the "layers principle"; that is, the law should "respect the integrity of layered Internet architecture." Further, they contend that such analysis "provides a more robust conceptual framework for evaluating Internet regulations than does the end-to-end principle." Hmmm.
According to the synopsis, the essay also provides "a detailed discussion of several real or hypothetical layer-violating or layer-crossing regulations, including: (1) The Serbian internet interdiction myth, (2) Myanmar's cut-the-wire policy, (3) China's great firewall, (4) the French Yahoo case, (5) cyber-terrorism, (6) Pennsylvania's IP address-blocking child-pornography statute, (7) port blocking and peer-to-peer file sharing, and (8) the regulation of streaming video at the IP layer."
Later (June 18): Derek digs in.
Derek Delivers...on his promise to follow up on the conversation we've been having about the First Amendment, the DMCA and fair use, post-Eldred [PDF]: "[This] sort of thinking bears heavily on the the whole issue of whether simply making fair use inconvenient via DRM is enough to strike the [DMCA]. I suppose you can make those technologically inconvenient fair uses, in the abstract. But it's greatly altering the way you experience the content."
Two other spots I recommend you visit, before I head into a staff meeting:
John Palfrey, blogging Internet Law 2003, Program of Instruction for Lawyers. Snippet: "The day opens with John Perry Barlow's classic Declaration of Independence for Cyberspace, which we often use to open the conversation of Net law. One of the lawyers in the class says 'it's dated.' Why, we ask? 'The poets are losing,' he says."
Steven Levy, in the Newsweek piece Info With a Ball and Chain (hyperlinks, mine): "Critics like Weinberger...complain that computers enforcing DRM systems lack 'the essential leeway by which ideas circulate.' Sure, Microsoft rights management will allow creators to set the rules. But will corporations dictate that every email message and document be fitted with a virtual ball and chain: no copying...no forwarding...no amending...no archiving? 'Whistle-blowers won't be able to do what they do,' says Joe Kraus of DigitalConsumer.org." (Thanks, Steven!)
Posted Saturday, June 14, 2003
Reminds me of something Edward Felten said, not long ago: "The second [strategy to strengthen our position in the copyfight] is to get better at explaining ourselves and at persuading people that they should support our positions. Especially, we need to do a better job of finding folks out there who are our natural allies, and convincing them to join us on these issues, even if we disagree about some other issues."
Yes. And I think weblogs can be an extremely powerful tool in this regard. Case in point: I knew that there was an organization called Information Commons before I discovered that they had a weblog. But--despite our common(s) interests--I wasn't talking to them. Were I Steven Johnson, I might explain (and beautifully) why and how. For now, though, it's satisfying simply to know that we have made a connection, and will make more.
Posted Friday, June 13, 2003
Quote(s) of the Day
Yeah, we kinda thought so.
Post of the DayJack Balkin's response to Orin Kerr's argument that there can't be a First Amendment right to fair use because fair use is an affirmative defense:
...Why is fair use justified? Because of important policy considerations that intersect with First Amendment values. Fair use allows people to engage in important forms of public discourse, and engage in creative transformations and commentaries on existing speech, and in this way it helps promote the growth and spread of knowledge.Much more, here. (Thanks, Dr. Lenz)
Bonus, via B2FXXX: The Constitutional Law of Intellectual Property After Eldred v. Ashcroft [PDF; Pam Samuelson].
Later: Lawrence Solum: "I am not going to produce an affirmative argument that the freedom of speech requires a fair use exception to the DMCA. Many others have done that. The very modest point of this post is that Kerr has not produced an argument to the contrary."
Later #2: Derek Slater tracks the discussion so far--and better yet, promises more to come.
Later #3: Seth Finkelstein's amusing read of Professor Balkin's read of Eldred: "Frankly, this strikes me not as making lemonade out of lemons, but rather, wading through a pile of manure and trying to find a pony."
Watch Out...it's catching.
Later (June 15): Joi: "A bill just quietly passed in Japan. It extends copyright from 50 years to 70 years. Also, under-reported, is the fact that 'circumvention of copy protecton or deterrence mechanisms' is now illegal and the defendant is responsible for proving innocence. I wish this legal spill-over from the US into Japan would stop. Especially for these REALLY STUPID laws. At least I have another project to work on in Japan. ;-P"
Later #2 (June 16): Creative Commons on the job.
Posted Thursday, June 12, 2003
You Are Not Getting Very Sleepy
Jenny, Jenny, Who Can I Turn To?Ms. Levine, I'm thinking this call is for you.
Later: Jenny is on the line.
Doc Discovers Matt
Yes, that's right: Doc Searls has discovered Matt Morse--and better yet, deemed him "great." Meaning many, many more people will likely do the same. Meaning the discussion about fair use in the digital environment (soon "the environment," period) will continue to gain writers/thinkers/doers, accruing clarity and power.
PricelessThis Slashdotted forum @ PBS, featuring Larry Lessig and Matt Oppenheim of the RIAA answering a wide range of thoughtful and provocative questions about copyright and fair use in the digital environment--starting with "Is downloading copyrighted music tantamount to stealing?"
One of many gems:
Larry Lessig: "The RIAA is the Recording Industry Association of America. It is not the Recording Industry and Artists Association of America. It says its concern is artists. That's true, in just the sense that a cattle rancher is concerned about its cattle."
This...looks interesting indeed. Especially the promised book. (Thanks, Hylton.)
Posted Wednesday, June 11, 2003
Larry's Public Domain Proposal
...gets a heartening thumbs-up from Eugene Volokh, albeit with an important qualification (hyperlinks, mine): "[The proposed act] seems highly unlikely to be enacted--but that likelihood itself depends on how effectively defenders of a broad public domain organize politically, and how well they sell their agenda. That's one reason that discussions of these proposals can be quite helpful to the pro-public-domain cause, even when the proposals at first seem politically implausible."
Later: Frank Field asks the question Volokh's post begs: "[What's] next in the process of selling this political agenda? In particular, what's the compelling argument for the public domain, expressible in an elevator speech?" (Here's something I wrote on rhetoric & politics some time ago, back when I had a bit more time than I do now to devote to the discussion.)
...with a recommendation I'd have made here @ Copyfight, were I not otherwise engaged (hyperlinks, mine): "Check out Fiat Lucre's WILLFUL INFRINGEMENT, and the 4 minute trailer for their copyright movie. They say it's, 'The movie that Disney does NOT want you to watch!'
Apparently, Lawrence Lessig & Mickey Mouse, Carrie McLaren & Public Enemy, Don Joyce & U2, Larry Gross & Star Wars, Andy Warhol & Mona Lisa, Ezra G & DJ Akiko Hot Rocks & The Rolling Stones, Pretzel & Critters are in it, but I saw Ed Felten and a couple of others in the trailer."
Mary points as well to Yet Another Reason Why I Love James Grimmelmann. Okay, so that's not the title of the piece; it's actually "Awestruck Teens Remake Raiders of the Lost Ark, Violate Copyright Law." But if our Mr. Grimmelmann is going to keep writing articles about copyright law that--quite improbably--both delight and instruct, I'm going to have to keep recruiting readers for him.
Other recent posts for which I hope to recruit readers: Derek Slater talking contract v. copyright with Cory Doctorow; Jesse Jordan on Jesse Jordan and Edward Felten on What it All Means; The Eldred Act website with a model letter to your Congressperson on the Public Domain Enhancement Act [PDF]; and Sarah Lai Stirland's To Share or Not to Share? That is the Question.
Finally, a few offerings from Big(ger) Media, in case you missed them:
Later #2: From another Larry in Delaware: What the public domain at work looks like: "I've signed the petition to Reclaim the Public Domain in support of the Public Domain Enhancement Act...There's a section called 'Something I Created Using Public Domain Work' which allows people to write about their efforts to improve our society by using ideas and works from the public domain. I grabbed some links to those, and want to share them."
Posted Tuesday, June 10, 2003
The Law of the Blog
• Who owns the content, employer or employee blogger?
Use and misuse of intellectual property, eh? Afraid I'm going to have to hear more about that. I'll be posting both here & at Weblogs at Harvard Law. See you soon.
...and from Arik Hesseldahl, a journalist who writes for Forbes:
Arik says he's "not much of a blogger." Somehow, that isn't much of a surprise.
Later #4: David Weinberger, meanwhile, is beautifully succinct.
Posted Monday, June 9, 2003
Blogging JupiterHylton is there, pointing everywhere. Joi, too, is hot on the trail. And it looks like Denise Howell (the Doc Searls of Blawgs) and Doc Searls (erhm, the Doc Searls) are neck-and-neck for uber-blogger of the day.
Posted Sunday, June 8, 2003
OutThat's where I was Friday. Missed lots of good stuff. Fortunately for us, Frank Field did not.
'Nother good spot for post-weekend catch-up.
The DMCA lowers the standard under which the RIAA can demand the identity of subscribers. Let's be clear. Copyright infringement is a crime, and leaving aside the question of whether copyright law is reasonable, copyright holders should be able to pursue infringers. The problem here is in the reduced standard. While the RIAA has an interest in defending itself, it has been known to make mistakes. Given the massive disparity in power between the recording industry and individuals, the harm to individuals who are erroneously accused of copyright infringement could be overwhelming. Overzealous laws only seem like a good idea when they're not coming after you.Matt also hints that he's working on a project of interest to copyfighters. I'm going to keep tuning in 'till I find out what it is.
Posted Thursday, June 5, 2003
The FCC..."Minister of Communication." (Thanks, JD.)
Posted Wednesday, June 4, 2003
Verizon Stay Request...has been denied. Despite this [PDF].
DC Internet.com: "Both sides in the dispute have said they believe the case will eventually end up at the Supreme Court as test case about the subpoena power of the DMCA."
EFF's Cindy Cohn (via Politech): "Once again, RIAA has shown that it is willing to sacrifice normal procedures and processes that protect Americans' privacy and constitutional rights to protect its business model."
Later: Senator Wants Limits on Copyright Protection [Declan McCullagh, Wired]. Excerpt:
The Kansas Republican's bill requires that a copyright holder obtain a judge's approval before receiving the name of an alleged peer-to-peer pirate. That would amend the 1998 Digital Millennium Copyright Act, which a federal court concluded enables a copyright holder to force the disclosure of a suspected pirate's identity without a judge's review. This law is at issue in the recording industry's recent pursuit of the identity of a Verizon Communications subscriber.Later #2: Arnold Kling: "Ordinarily, I tend to denounce the 'sky is falling' warnings from Lawrence Lessig and others about corporate power threatening to destroy the Internet. But this story bolsters their case...This just makes me sick. It's search and seizure without a warrant by an organization that has no status in law enforcement. Ugh."
Nothing Much Yet...on the Aimster/Madster hearing here. But there are rumblings here, here, here, and of course, here.
Later: Aaron Swartz: "I got there a little late, but I got in and sat down quickly. The courtroom is a big black box with a ceiling of fluorescent lighting and painted portraits of (presumably) justices on the wall. Very nice, but not quite as regal as the Supreme Court. Judges Ripple, Posner, and Williams heard the case...
...[The RIAA lawyer] pointed out that there were no screenshots or evidence in the record of Aimster being used for a non-infringing use. Posner then asked for his definition of contributory infringement. He argued it was a material contribution with knowledge. Posner pointed out Sony would fail this test. The [RIAA] lawyer maintained that Sony actually provided a narrow exception to this general rule. He also tried to imply that Sony was mostly based on facts of the specific case and is not directly applicable here, but Posner wasn't buying that."
Later #2: For a prime example of the kind of access to & sharing of information that ought to be preserved on the Internet, see Howard Bashman's post on the hearing. Writes Howard (italics & note, mine): "Thanks to the Seventh Circuit's amazing website, you can listen to an audio file of today's oral argument via this link. Trading of this audio file is permitted as best as I can tell. [;-)] Also, you can access the briefs filed in the appeal via this link."
Later #3: Howard points to another option for downloading the audio.
Later #4: Another report from the courtroom, via Aimee Deep: "In sum, Judge Posner did offer Aimster some reason to be hopeful, but taken objectively, the questions and body language from the three members of this panel suggests that the RIAA has probably cemented another victory."
ReminderPlease change your blogrolls to point to http://www.copyfight.org instead of the old http://www.corante.com/copyfight. Thank you!
Posted Tuesday, June 3, 2003
The Public's Interest in CopyrightLarry Lessig's post this morning asking for help in getting the Public Domain Enhancement Act before Congress brought to mind a pre-Eldred discussion we had here at Copyfight about the price that we all pay for copyright extended essentially ad infinitum.
Opposing the Eldred challenge, the ABA IP Section had argued that extending copyright provides an incentive to place culturally valuable creative works online, thus making them more "accessible" to future generations. This struck me as absurd. Sure, they'd be accessible. For a price. And paid to the same people the public has been paying for years.
My point was that it's the general public--yes, that's us--who currently pays for copyright's unchecked expansion. Sometimes the payment is literal, as when we are asked to keep purchasing, at regular 20-year intervals, material that ordinarily would have fallen into the public domain. Sometimes the payment is not so literal, as when we are robbed of the cultural value of those would-have-been public domain works.
Larry's Public Domain Enhancement Act is aimed at setting free copyrighted material from which no one is profiting financially, in order for all of us to profit culturally. Congress has acted--repeatedly--in the interests of copyright holders, in effect creating a perpetual "copyright tax" that we all pay. But Congress can also, and should also, act in the public interest.
I urge you to check out the Public Domain Enhancement Act (a.k.a. "The Eldred Act"), and if you are so moved, sign the petition. If the petition is a success, Congress will have the opportunity at least to consider the interests of those on both sides of the traditional copyright bargain.
Later: James Boyle, in an email sent to a number of us: "A couple of things are worth noting. [The proposed act] does not shorten copyright for anyone who wishes to keep asserting it...The Eldred Act simply means that some of those 98% of songs, books, poems, movies, and pictures will become available to the public after 50 years or so, while fully maintaining the interests of anyone who wishes to keep the copyright in force. It is an extremely moderate proposal...."
Later #2: Edward Felten: "Regardless of your position on the proper length and breadth of copyright, I hope you will agree with me that there is no reason to maintain the copyright on works that are essentially abandoned. A great many old works are simply unusable, because it would cost too much to figure out who owns the copyrights on them. The Public Domain Enhancement Act would put only two tiny 'burdens' on copyright owners: (1) pay a fee of one dollar to maintain their copyright on any old work, and (2) register their ownership of the copyrights on old works so that potential licensees can find their owners.
The beauty of this approach is that, while imposing essentially no cost on the owners of commercially valuable copyrights, it reclaims for the public domain that vast majority of works that have no remaining commercial value after fifty years. To enter the public domain, a work has to be so devoid of commercial value that the copyright owner isn't willing to pay even one dollar to maintain its copyright. This seems like such a no-brainer that it's hard to see how anyone who takes cultural progress seriously could oppose it."
Later #3: Wendy Seltzer: "The Supreme Court's decision in Eldred v. Ashcroft told us we'd have to take our case to Congress to reclaim for public use the vast quantity of art and literature under copyright but out of print. The draft Public Domain Enhancement Act would help do that by requiring copyright holders to pay a nominal fee 50 years after publication.
Under this proposed Act, copyright holders still commercially exploiting their copyrights could retain those copyrights, and would update the records telling others where to contact them for licensing. Works that copyright holders didn't value at even $1, however, would go into the public domain--where others might find new ways to use them."
Later #4: Aaron Swartz: "Everything is under copyright. But most of those things aren't making money, so no one cares about their copyright anymore. The Eldred Act will let you use those things."
Later #5: David Weinberger: "[Yes], if Larry Lessig jumped off a bridge, I'd jump off a bridge, too. But we really don't want Larry even thinking of jumping off a bridge, so sign the freaking petition."
Later #6: Matt Morse of Matt Rolls a Hoover: "If I want to license something created by someone who died in 1950, figuring out who to talk to now, 50 years later, to try to use it is basically impossible. If someone has paid [the dollar the proposed act calls for], I know who to talk to and I win, the copyright holder wins because of the licensing fees, and the public wins because of the new creation.
Copyright holders like to characterize people who favor reasonable copyright laws as wanting to steal their works. Let's talk theft. The theft I see is the 98% being kept from the public, that's every single person, organization, cultural institution, and company in the country, for the sake of the 2%. Let's take back what belongs to us.
If you've gotten this far and haven't signed the petition yet, here's your chance. How easy to I have to make it? If I need to auto-redirect this page to the petition itself, I will."
Later #7: A petition-signer by the name of Smith: "This is simply sensible, and in the public interest. In particular, it has a direct effect on our educational process--access to important works of the past should not be arbitrarily constrained. Law that does not work for the common good is simply bad law."
Later #8: Eugene Volokh, via Lenz Blog: "I have some quibbles with the specific proposal; I think that the forfeiture for nonpayment of the registration fee may constitute a taking of property, and may thus put the federal government on the hook for compensation, at least in some cases. Still, the general idea of broadening the public domain, especially with works that really aren't economically viable any more (so that the transaction costs of licensing exceed the value of the work), seems to me to be a good one."
We should never compromise. But we must take first steps. We are where we are because most people don't believe in the public domain. Most people don't even understand it. We live in a time when the public domain is more than 75 years old. Yet for most of our history, the public domain was no more than 30 years old. If ordinary people could see the creativity that would be inspired if the 1960s were in the public domain, they would understand again the importance of limiting the regulation that copyright law has become.
If you want 'radical reform,' than produce 500,000 signatures on this Reclaim Copyright Law petition. If you want a first step of reform, then help us get 50,000 signatures to Reclaim the Public Domain."
Posted Monday, June 2, 2003
Notable + Quotable
Alas, I cannot linger here today; I'm hard at work on other publications Berkman. Before I go, though, a few words from the wise/intriguing:
US Supreme Court Justice Antonin Scalia, from the bench in the just-decided Dastar v. Twentieth Century Fox: "We don't think the Lanham Act requires the search for the Nile and all its tributaries." [More on the Dastar ruling here & here.]
Edward Felten, on the raison d'etre for the EFF brief (PDF) in the Aimster case: "The brief does not take a position on whether Aimster should be found liable, but it does argue forcefully that the trial court misinterpreted the Supreme Court's ruling in the 1984 Sony Betamax case...The new brief urges the Court of Appeals to narrow the lower court's reading of the Betamax rule. According to the brief, the lower court's reading of Betamax would impose liability on the makers of common devices such as photocopiers and digital cameras, and the Court of Appeals, regardless of its ultimate decision about Aimster's liability, should make clear that the lower court misread Betamax."
Aimee Deep of Aimster/Madster fame (and questionable identity?), responding to the question of why GrepLaw readers ought attend this Wednesday's Aimster hearing in Chicago: "The Seventh Circuit is quite wonderful--Judges Posner, Easterbrook, Flaum, Evans, the whole bench really, Ripple, Rovner, Mannion--and of course, Diane Wood. You go, girl. These are stars whose fame lasts more than 15 minutes."
Dana Blankenhorn: "The FCC's decision to allow media monopolies (really, shared monopolies among the current major players – Disney, Time Warner, Fox, Viacom, maybe GE if it wants) didn't really happen today. It happened a long time ago."
Cory Doctorow: "The coaltion in opposition to [media deregulation] was the most diverse I can remember seeing. Bipartisan, from all walks of life. The FCC was innundated with thousands and thousands of comments from the public in opposition to this. Meanwhile the main voice in favor of this came from the same self-interested parties who will benefit under the new regulation. It's a revolting and perverse demonstration of 'regulatory capture,' where a regulated industry calls all the shots at the body that's nominally overseeing it--the fox guarding the henhouse."
Adina Levin of EFF-Austin, on how a mixture of technological & political savvy beat the Texas Super-DMCA: "We formed a powerful alliance with ACLU-Texas, which is one of the largest and most successful grassroots lobbying groups in Texas. The ACLU had a Cyberliberties project, but the team lacked strong technology background. EFF-Austin had technology expertise and passion for preserving civil liberties related to technology. ACLU folks taught us the ins-and-outs of lobbying, and worked on the bill at critical moments."
Berkman Fellow/EFF Attorney Wendy Seltzer, speaking @ OSCOM on how such a mixture has been an important not-so-secret ingredient in Openlaw cases: "The participation in Openlaw has been largely amongst non-lawyers--because lawyers are still in the mindset that it's best to be closed, to do it all behind closed doors. We've reached out to academics and technologists--and we found these people could particpate very well in these discussions. Their contributions were not less critical because they didn't have the three years in law school."
David Glenn of The Chronicle of Higher Education in a widely circulated piece on "Scholars Who Blog": "To a remarkable degree, blogs also appear to bring full professors, adjuncts, and students onto a level field. With no evident condescension, senior faculty bloggers routinely link to the political-affairs blog maintained by Matthew Yglesias, a senior at Harvard University."
NowThe FCC is holding its Open Commission Meeting on Broadcast Ownership this morning. Here's the live stream, if you are one of the lucky 200 that the website can support. It's also being webcast/televised live on C-SPAN.
Essential reading on media concentration from Dan Gillmor; a picture of our current media landscape, from Sarah Stirland (via Larry).
Later: That was very sad. The final vote: three in favor, two against. After the vote, protesters stood up and walked through the room, loudly chanting, "Mass deregulation of the mass communication is the end of democracy."
A security officer escorted them out. And then there was silence.
Later: Television clip of the moments described above, from Lisa Rein.
Posted Friday, May 30, 2003
License to SampleNice concept, guys: "Creative Commons, a nonprofit dedicated to building a layer of reasonable copyright, announced today that it would begin development of the Sampling License, a copyright tool designed to let artists encourage the creative transformation of their work, for profit or otherwise. Leading the public discussion and development of the license is Negativland, practitioners of 'found sound' music as well as other forms of media manipulation."
DeCSS Code--Free as in Speech?Alex Macgillivray: "Went to the Bunner hearing at the California Supreme Court today. The issue is whether a trade secret preliminary injunction to stop Bunner from distributing deCSS is valid. The trial court said yes. The Appeals court said that it was a prior restraint on speech and that the plaintiff needed to meet the First Amendment burden and had not. Bill Lockyer (the California Attorney General) and Robert Sugarman (from Weil Gotshal) argued on behalf of the Plaintiff. David Greene argued on behalf of Bunner. Each argument was interesting in its own way."
Justice Janice Rogers Brown: "The property interest is lost when it's no longer secret, so how can you protect that interest without an injunction?"
Andrew Bunner: "This thing is pure speech. People have written haikus that capture the algorithm for decrypting DVDs. If that's not speech, I don't know what is."
David Greene: "We're confident the Supreme Court will recognize, as the Court of Appeal did, that this is a classic First Amendment case. The trial court failed to apply the commonly recognized constitutional test for restrictions on the publication of 'confidential' information in DVD-CCA v. Bunner when it issued the preliminary injunction."
Seth Schoen, who also attended the Bunner hearing: "It can only be described as bizarre to hear entertainment lawyers, lawyers for movie studios, maintaining that the first amendment is really about protecting political speech and not necessarily other kinds of expression, that the first amendment is really very narrow. This is, of course, exactly what people seeking to censor sexually explicit or violent expression in the movies always say--that the first amendment is supposed to protect expression of beliefs, and political and perhaps religious arguments, and pictures of naked people or pictures of people getting shot are neither of those."
Ding Dong...the Texas "Super-DMCA" is evidently dead.
Later: Alex Macgillivray comments in detail on the Internetmovies.com (PDF) decision referenced above: "[The] Judge reviewed [the facts] and found that InternetMovies' repeated advertising that it had movies for download misled the MPAA into [believing that it had] a basis for sending a DMCA notice to InternetMovies' host."
Translation? The decision shouldn't be interpreted as giving the MPAA free rein to "send a letter like this one (from Universal)." Rather, argues Alex, it should serve as a warning to Net companies: If you don't have full length Hollywood movies available for download, don't claim that you do.
Later #2: How the Texas Super-DMCA war was won.
Posted Thursday, May 29, 2003
Commons SenseInformation Commons has a weblog. Fantastic.
OSCOM--the Blog, Part IIHi all. If you're interested in what going on at OSCOM, hop on over to Weblogs at Harvard Law. It's fascinating stuff. An excerpt:
Dave: "Let's not make this an issue about whether you like Bill Gates or Richard Stallman. I don't like either of them. And neither of them take baths, by the way."Later: Dave: "Had I chosen a song for the keynote it would have been Give Peace a Chance."
Also check out:
As the DoS attack on the hosting service for Copyfight & the other Corante weblogs continues, I will once again be blogging from Weblogs at Harvard Law.
Posted Wednesday, May 28, 2003
DMCA Exemption Hearing Transcripts...are now available online. (Thanks, Mary.)
BeautifulFCC Plan to Alter Media Rules Spurs Growing Debate and The Big Get Bigger? [Frank Ahrens, Washington Post].
Not to mention Growing the Innovation Economy: A New Strategy for A New Prosperity by Joe Lieberman. Salient bit:
The Internet allows for 'many to many' communication as opposed to the 'one to many' communication of broadcast television. Innovation can occur at the edge of the network. A student, an independent software developer, or a small high-tech company can come up with an idea for a new application, protocol, or kind of content. If enough people find it useful or worthwhile, this idea can spread like wildfire. Even as the Internet evolves, it important to ensure that it continues to provide an open platform for rapid and decentralized innovation, and for the exchange of ideas.Satisfying, isn't it?
Later: David Weinberger: The Internet Constituency: "Dean and Kerry are the only two candidates whose sites show signs of understanding the Internet constituency. And of the two, Dean is ahead by the virtual equivalent of a country mile."
Posted Tuesday, May 27, 2003
The original plan was to blog certain sessions of OSCOM here @ Copyfight. But I've now decided that Weblogs at Harvard Law is a better spot. A reprise of my earlier notes plus updated details here.
Professor Nesson: [Suppose that a coder] pulled back some of his code, packaged it up, put it out with proprietary licenses. But he got flamed. What is that about?More over @ Weblogs at Harvard Law.
Contributory Trade Dress Infringe...Whaa?When Larry Lessig sent an email to a number of us on Friday RE his weekend Starbucks assigment, I responded with a question that was more than three quarters tongue-in-cheek: "But wouldn't we be liable, then, for contributory trade dress infringement?"
Slippery as the notion may be, I believe I know what trade dress infringement is. But the "contributory" I added simply to underscore the absurdity of the current situation with regard to steadily expanding intellectual property rights.
The inspiration? Something Jonathan Zittrain wrote in a forthcoming Legal Affairs piece on why cyberlaw profs are generally uncomfortable with today's copyright regime. Observed JZ: "The recording industry is...suing the venture capital firm Hummer Winblad for daring to finance Napster under what seems to be a novel Matryoshka-doll theory of contributory contributory copyright infringement."
Yes, I laughed. It was funny. At the same time, the Hummer Winblad suit is a real legal action taken against a real company.
Or perhaps both?
Later: A few additional links on Starbucks and IP whilst you ponder that question:
Later #3: Starbucks photos--the website. Hilarious.
Posted Friday, May 23, 2003
Tennessee Super-DMCA Buried...for the remainder of the year. The Tennessean:
Backers said the bill was needed to update state law on the theft of cable and other telecommunications services.
Later: A marvelously comprehensive collection of materials on the TN Super-DMCA fight, including press coverage, weblog commentary and links to organizations that oppose Super-DMCA legislation.
Under AttackNot just fair use on the Net, but my server. The hosting service for Copyfight is under a DoS attack. I am attempting to post, but frequently it is not working. Nor am I able to reach this site.
My apologies. My hope is that we'll come out of this soon.
Later (May 27): Looks like we're back!
Posted Thursday, May 22, 2003
Colorado Super-DMCA...is dust: "Gov. Bill Owens today vetoed H.B. 1303, the so-called 'super-DMCA' bill that sought to update laws against theft of cable and other telecommunications services but also opened the door to incredible legal restrictions on consumers' use of digital content and digital devices."
EFF's Fred von Lohmann: "Governor Owens, in vetoing the Colorado super-DMCA bill, recognized that these bills are bad for innovation, bad for competition, and bad for consumers. These MPAA-sponsored bills represent the worst kind of special interest legislation, sacrificing the public interest in favor of the self-serving interests of one industry."
And in other developments copyfight:
Posted Wednesday, May 21, 2003
YikesPray for the folks at Yale.
Gator AidAs earlier hinted by the little bird, Ben Edelman, about whom I tend to write quite a bit, has released a new study. Its raison d'être: to reveal what's happening when an Internet user visits a website and finds him or herself prey to targeted Gator pop-up ads. Like Ben's work with Jonathan Zittrain on Internet filtering, this study enlists the help of the Internet community to gather data "from the field." Meaning that you, too, can contribute to the cause--simply by visiting Ben's page, plugging in a URL, and watching as the software determines what ads Gator would like to serve you.
There are two main reasons why this study interests me. One is that the Gator client often comes bundled with KaZaA and Morpheus. Most Gator "users" don't know why they have it, and certainly don't want it. That Ben is shining the spotlight on what they're doing seems to me a marvelous kind of public service--and pro bono, to boot.
The other is that this type of research is perfectly adapted to the online environment. It gathers information readily available on the Net (at least to the tech-savvy), then uses the tiny efforts of many to add to the data set, so that the information accrues more and more value.
Ben presented this study to a bunch of us at the Berkman Center a few weeks ago. The question arose as to whether this research is potentially barred by the DMCA. Evidently, it is not. Nor, observed Ben in some surprise, does the Gator license agreement speak to the situation. Dave Winer said, "It will soon, I imagine." To which John Palfrey replied, "Ah, yes--the Ben Edelman clause."
We laughed. It was funny. Yet it is because of research like Ben's, and questions of this kind, that so many of us are concerned to see what happens RE the petition for cert in Bowers v. Baystate. Property interests speak so very loudly in the courts. Is it still possible for other interests to be heard?
Or to put it another way: How much longer will research like Ben's survive?
Later: Harvard Study Wrestles with Gator [Declan McCullagh, CNET]: "According to the Harvard report, pop-up advertisements for Sun Microsystems' powerful V880 server, boasting 'See how Sun beats IBM,' are aimed at Gator users who visit IBM.com. In the cutthroat travel business, Orbitz, Travelocity.com, Priceline.com, and Cheap Tickets have purchased pop-ups that Gator users visiting arch rival Expedia will see, the study found. Expedia, in turn, uses Gator to aim its own 'bargain fares' ads at all four of its competitors' sites."
Later #2: An earlier article on a copyright and trademark infringement suit brought against Gator by LendingTree: "Forrester Research analyst Charlene Li says Gator's actions may be sneaky, but she doesn't know that they're illegal. 'It really comes down to a question of who owns that interaction,' Li says. 'Who owns the attention of that user?'"
Later #3: A clarification from Ben on the above, prompted by inquiring minds: "'Reverse engineering' as used in the Gator license agreement shouldn't be treated as ordinary English words. Instead, it is used as a term of art--meaning something special to lawyers, based on their accumulated understanding through precedent. Reverse engineering refers to a particular way of finding out how a program works--by decompiling it. Tech Target's definition: 'Software reverse engineering involves reversing a program's machine code (the string of 0s and 1s that are sent to the logic processor) back into the source code that it was written in, using program language statements.'
This wasn't a step I used to conduct my research, nor one necessary to accomplish it."
Later #4: Seth F., via email, quoting the Gator license agreement: "You may not modify, reverse-engineer, decompile, disassemble, or otherwise discover or disassemble Licensed Materials equivalent of Licensed Materials in any way."
A Hello GoodbyeDerek Slater's latest post is a goodbye of sorts, but just the kind I was hoping to see: it opens up a new chapter as it closes the old.
You Can't Make Money in Open SourceNope, that's not my argument. It's the name of a panel discussion I will be blogging at OSCOM next week. Also on the roster for blogging:
Tune in here at Copyfight on May 28-30 to share.
Apropos Quote of the Day...attributed to George Bernard Shaw, and stolen--thief that I am--from an email sent to me by Copyfight reader Adolfo Estelella: "If you have an apple and I have an apple and we exchange our apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas."
Posted Monday, May 19, 2003
Working Full Time...on an important Berkman project due by the end of the month. Consequently, postings will be light over the next two weeks.
I'd suffer more than a few pangs of guilt, however, if I didn't point you here. In addition, a little bird tells me we will be hearing more from a certain Mr. Edelman 'round about mid-week. So I'll be poking my head in again in a few days.
Before I go, a few more for the road:
Posted Thursday, May 15, 2003
Until We Meet AgainI won't be in the office or online tomorrow, so here are a few final bits & pieces to chew on:
Meanwhile, reports Edward Felten, Texas residents are under seige: "The Texas version of the Super-DMCA has been passed by the relevant committees in both the state House and Senate. It will probably come to a vote in the Senate later this week."
Posted Wednesday, May 14, 2003
The EFF--Backing Up the Right to BackupThe latest EFFector brings news of two developments this week: the afore-mentioned Library of Congress hearings on the anticircumvention provisions in the DMCA and the hearing tomorrow in MGM Studios v. 321 Studios. The central question in the case: Is 321's DVD backup software legal?
Post script: I've been out of the copyfighting loop for a bit, and will remain so today and much of tomorrow. In addition to following the links above, I (once again) recommend a visit to A Copyfighter's Musings and a click on each link in Derek's blog roll. He's kept it remarkably lean, so the trip will be efficient as well as rewarding.
Post script #3: Via Mary @ bIPlog, Eric Olsen at Blogcritics, in a post on the DMCA exemption hearings: "LawMeme's Ernest Miller has turned in what I think is an extraordinary and highly logical request for an exemption from the DMCA prohibition on copying DVDs for any purpose, including fair use recording of small segments of a DVD for review purposes."
Post script #5: Brewster Kahle's testimony before the Library of Congress on DMCA exemptions, via Alex Macgillivray. (Welcome back, Alex.)
Posted Tuesday, May 13, 2003
Krugman on Media ConcentrationI've posted this below, but just in case you missed it: here's Paul Krugman's NYT editorial on media concentration. Writes Krugman:
A funny thing happened during the Iraq war: many Americans turned to the BBC for their TV news. They were looking for an alternative point of view--something they couldn't find on domestic networks, which, in the words of the BBC's director general, "wrapped themselves in the American flag and substituted patriotism for impartiality."And from Mediageek's archives:
Unfortunately, my biggest fear is that this coverage and attention is too late to do any good. The FCC's public comment period is long over, and Powell is prepared to push the FCC hard and fast to wrap up its media ownership rules review by its self-imposed June deadline. Although the FCC's two Democrats are clearly on the side of the public interest, that's not enough to stop a speeding train.Finally, a ray of hope: an earlier article on Senators Olympia Snowe (R-Maine) and Byron Dorgan (D-N.D.)--poking noses.
I'm back, if briefly, to point here: "The two Democrats on the five-member Federal Communications Commission asked Tuesday for a month's delay in a vote scheduled for June 2 on proposals to ease current media ownership limits...Earlier Tuesday, a congressional aide said a bipartisan group of US Senators planned to introduce legislation to head off any FCC attempt to allow a television network to own stations that reach more than 35 percent of the national audience."
Later: Dan Gillmor: "The FCC's move, which is all but certain, will not bring immediate disaster. In the long run, moreover, the Net could help mitigate the worst of the effects--though forces of centralization are working there, too."
Later #2 (May 15): Larry Lessig, responding to the "There's always the Internet" argument:
[I am asked] "Why do you worry about media concentration when there's an internet?"Later #3: Tom Barger: "I have heretofore been loathe to subscribe to a conspiracy theory of the Military/Entertainment Complex. Rather, I have written on the herd mentality of journalists, and their fear of losing jobs or that coveted seat on Air force One; a relentless "dumbing down" of American culture and the obsession with celebrities, non-scripted reality programming, car wrecks, adultery, child abductions, and murders--all at the expense of critical examination of public policy.
I have changed my mind."
Posted Monday, May 12, 2003
Media Concentration: We are the Story
Dave Winer posted a powerful piece this morning aimed at affirming the importance and legitimacy of Internet-enabled media "disintermediation"--e.g., the ability of weblog writers to decide for themselves what issues are worth covering, and to cover them as well as, if not better than, traditional media.
The background: Dave argues that weblogs could be the killer app of the New Hampshire primary. MSNBC reporter Jon Bonne, meanwhile, says it isn't so. While granting that weblogs could make a "terrific addition to the mix," Bonne implies that they are likely to prove only marginally useful--a means to convey "vicarious thrill" and "color" but not the meat-and-potatoes of campaign coverage. Wrote Bonne, "Frankly, if [weblogs] caused a few less on-the-street stories to enter the mix, that'd be a notable win for everyone."
Dave's pointed reply: "Voters in New Hampshire are not in the margins. They are the story. The pols are competing for their votes, not your ink."
The reply is one that I suspect will resonate with many weblog writers. I recall several instances over the past year in which weblog writers dug far deeper into a story or issue than the traditional press would--or could--go. Witness the many of us who wrote about the Eldred case before, during, and after the Supreme Court hearing--with much of the substantive discussion happening in this space.
We now have another situation in which the onus is upon us to dig deeper. On June 2, the FCC will vote on changes to longstanding rules against media concentration--and today, the commission is expected to release the proposed changes. This means that the public has less than a month in which to engage in any real consideration of what these changes could mean for all of us.
"The country is really standing on a cliff when it comes to media concentration," Senator Ron Wyden told the Associated Press. "When you go over that cliff you are going to be fundamentally changing what this country is about, and not for the better."
There are a few catchers in the rye: Moveon.org is standing at the ready, as is the Center for Digital Democracy. Yet it could be argued that weblog writers have by-and-large allowed themselves to become marginal to this debate--despite the fact that many of us have come to regard ourselves precisely as an important "third voice."
Dave Winer says that we the people--those for whom government bodies like the FCC exist to serve and protect--are the story. I cannot think of a better way that this is being demonstrated than through weblogs. Weblogs are fundamentally "read-write." The media-concentration story isn't over yet. When the proposed rules are released, let's write ourselves out of the margin.
Later #2: Doc points here, and other spots where the discussion is taking hold. Thanks, Doc. (Not to mention the indefatigable Larry.)
Later #3 (May 13): Paul Krugman in the NYT, "A funny thing happened during the Iraq war: many Americans turned to the BBC for their TV news. They were looking for an alternative point of view--something they couldn't find on domestic networks, which, in the words of the BBC's director general, "wrapped themselves in the American flag and substituted patriotism for impartiality...We don't have censorship in this country; it's still possible to find different points of view. But we do have a system in which the major media companies have strong incentives to present the news in a way that pleases the party in power, and no incentive not to."
Posted Friday, May 9, 2003
Shout OutI had the good fortune to meet up with two people today who are always a delight: Halley Suitt and fellow Berkman-ite Alex Macgillivray. I recommend you check out their weblogs; they are quite different, but I read each with great pleasure. Thanks, guys.
Copyright--Reality v. Rhetoric
Brother Kling has written a smart piece on copyright reality v. copyright rhetoric--dovetailing nicely, as Frank Field notes, with Matt Morse's ongoing discussion about the importance of distinguishing copyright infringement from theft. Writes Kling:
Meanwhile, on the DMCA front, a weblog on transnational education is exploring the impact that DMCA export could have on education worldwide: "As we continue to speculate about trade liberalization in Education really amounting to the Americanization of Education, yesterday's US-Singapore Free Trade Agreement (FTA), the first ever between the US and an Asian nation, provides more grist for the mill."
And here at home? More hearings before the Library of Congress on the DMCA's anticircumvention provisions. Today, the EFF's Seth Schoen takes the stand. Slated for May 14th and 15th: Ernest Miller, James Tyre, Ren Bucholz, Brewster Kahle and Lauren Gelman among others. (Thanks to James Tyre @ Pho for the link.)
Posted Thursday, May 8, 2003
Center for Digital Democracy Asks Powell to RecuseJeffrey Chester, who has long waged an often lonely battle against media concentration, has written an affecting letter asking FCC chairman Michael Powell to recuse himself from the impending June 2 vote. An excerpt:
From your statements, including your recent speech before the National Newspaper Association (NAA), we believe you and your staff have ultimately developed an ideologically driven record that does not reflect realities of today's communications landscape. The process you have developed for the current biennial review, as we shall discuss below, is insufficient grounds for the development of any new public policies on ownership. Indeed, the process would not stand traditional scholarly scrutiny if it were an exercise performed under academic peer review. But, Mr. Chairman, this is not an exam or a journal article that you are writing. The impending June decision will have far-reaching consequences for our democracy, affecting civic discourse, journalism, and popular culture.The letter is well worth a full read; the Center for Digital Democracy well worth the visit.
Public Domain Papers--PublishedDuke law professor Jamie Boyle just sent word via email that a selection of papers from the Conference on the Public Domain have been edited and published in the Winter/Spring 2003 issue of Duke's venerable Law and Contemporary Problems journal. Preliminary drafts were previously available in PDF format; now the completed papers are available in wonderfully accessible, cut-and-paste-able form. In addition, the foreword--entitled, "The Opposite of Property?"--serves handily as a conference-in-a-nutshell.
Wonderful. Thank you, Jamie.
MPAA Who? Part II
Via FlaBlog: a St. Petersburg Times piece quoting Florida Super-DMCA legislation co-sponsor Representative Dennis K. Baxley (R-Ocala) as saying that "he never talked to anyone from the Motion Picture Association of America." At the same time, "he did not say how he came to sponsor language matching its goals."
"It was really viewed just as a good law enforcement bill" on cable piracy, he said. "I don't remember any opposition to the bill, and it certainly wasn't controversial."
Posted Wednesday, May 7, 2003
...to a very appealing weblog.
The DMCA--Here, There and Everywhere
This morning's BNA dispatch brought some sorry, though not unexpected, news: the US and Singapore have signed a trade agreement that contains language similar to the anti-circumvention provisions in the DMCA. The problem, as Larry Lessig points out, isn't only that harmful law is spreading, but also that its spread will in turn be used to justify the status quo at home. Wrote Larry in a recent post:
There's a standard dance that the IP extremists do well: When they lose in Congress, they go overseas and negotiate a treaty that imposes on the US the same obligation they just lost in Congress; then they come back and say, "we must do this to live up to our international obligations."The post reminded me of a talk Larry gave in March at the Internet Law Program in Rio de Janeiro. There, he compared "IP extremism" to a global epidemic that can contained only through educating people--especially lawyers--worldwide (hyperlink, mine):
My question: How can we--ordinary Internet users--help stem the tide? Representatives Lofgren and Boucher are doing their best to stave off agreements of the kind just reached. The Internet Law Program will continue to educate people about these issues--both at home and abroad. But clearly we need more.
I'd very much like to be able to engage more of us in such a "broader discussion"--and more specifically, to get that discussion before the eyes of policymakers.
I've got to run to a lunch meeting; I encourage you to send me an email if you have thoughts to share on the above.
Later: In news on our "local" DMCA, Copyfight reader Matt J. Perkins sends a pointer to Phil Gengler's notes from the May 2 Library of Congress hearings on the anticircumvention provisions in the DMCA:
The hearing, while scheduled to include several areas of circumvention involving DVDs, primarily focused on two areas: DVD backups and region coding. The other attendees...were Ruben Safir (NY Fair Use), Robert Moore (President, 321 Studios Inc.), Michael Einhorn, Bruce Turnbull (DVD CCA), Fritz Attaway (MPAA), Shira Perlmutter (AOL Time Warner), and Steven Mitchell (IDSA).Mr. Gengler also maintains a compilation of legal documents of interest to copyfighters. Thanks, Matt (and Phil).
Later (May 8): Derek Slater, advocating, among other things, that we act locally in order to effect change globally: "[Understand] that it's going to be most effective to act locally. The discussion can be broadened--we can all blog and discuss strategy. But we're going to have the most immediate impact locally. We have enough trouble being effective at the state level, so we shouldn't spread ourselves too thin."
More on this to come.
Posted Tuesday, May 6, 2003
Two for Two
Two must-listen offerings from public radio:
Cross Your Fingers II
Here's the petition for cert before the Supreme Court [PDF] in Bowers v. Baystate--the closely watched case that pits so-called shrinkwrap licenses against fair use. The central question (emphasis, mine):
Does the Copyright Act preempt a state law claim for breach of a standard form "shrinkwrap" license clause prohibiting reverse engineering of computer software and thus protect the public's right to discover and build upon that software's unprotected ideas and processes?
Later (May 8): Kevin Heller's .02.
You Heard it Right, Guys
It's a happy day. Thanks, Hylton.
Posted Monday, May 5, 2003
Cross Your Fingers
This just in: Attorneys for the petitioner in the closely watched Bowers v. Baystate case filed for cert on April 29 before the US Supreme Court, urging review based on the proposition that a shrinkwrap license prohibiting reverse engineering of computer software is preempted by the fair use provisions of the Copyright Act.
The Institute of Electrical and Electronics Engineers (IEEE) is supporting the petitoner and has created an informational website containing such goodies as a backgrounder on reverse engineering and Bowers and an assortment of Bowers reference materials.
I may soon be able to post the petition itself; hold tight.
Meanwhile, a few must-reads culled from my blogroll:
Later: Speaking of showdowns, here's a new piece on the Super-DMCA showdown in Tennessee: "The bills will be up this week in the Senate and House judiciary committees, 3:30 p.m. Tuesday in the Senate and 9 a.m. Wednesday in the House." (Thanks, Bill.)
Later #2: Here's where Tennessee residents can get the information they need for the Super-DMCA showdown today (Tuesday) and tomorrow (Wednesday).
Posted Friday, May 2, 2003
From my referrer logs: If you ask Google why intellectual property law is so important, they'll send you to the EFF and to Copyfight for the answer.
Representative Rob Riley (D-Nashville) on the Super-DMCA legislation introduced in Tennessee, (via Bill Hobbs): "There has been much misinformation spread about this bill [PDF]...contrary to popular belief, I have never been contacted by anyone from the Motion Picture Association of America regarding this legislation, ever...."
Also see Technology Bill Causes Concern [Craig Boerner, Nashville City Paper].
Posted Thursday, May 1, 2003
CNET: "The settlements will see each student making payments to the RIAA totaling between $12,000 and $17,000, split into annual installments between 2003 and 2006. The lawsuits as filed could have entailed damages--in theory--of up to $100 million.
'I don't believe that I did anything wrong,' 18-year-old Peng said in a statement. 'I am glad that the case has been settled amicably, and I hope that for the sake of artists, the larger issues can soon be resolved.'"
A Slashdotter: "I bet these kids ended up paying more than 99 cents a song."
A second Slashdotter (via Giles Hoover): "Today's news: Apple makes $100K in 18 hours selling files you can copy. The RIAA makes $12-17K in 3 years going after people who copy files. Hey, if the RIAA sues 13 students every day, maybe they can keep up..."
Media Concentration: Out from Under the Wire
Surprisingly or not, the issue of media concentration is not being covered adequately by the media--that same media that will be affected by the changes in these rules. So that makes this ripe for the media in this space.I'm late to the game on this issue, but others in my tribe are not. Below are a few pieces I'm digging into; I invite you to join me, and as well to let me know where else under the wire that this discussion is happening.
It's not like you'd want to ensure a diversity of voices in each channel, right?
You Couldn't Say
My favorite on Matt's list is #1: "Good topics [for a weblog] include anything that you are likely to launch into unprovoked speeches about. If it's gotten to the stage where talking about it annoys your SO, relatives, and friends, that's a good sign." Read: If you're not thinking about it every day, you're not going to write about it every day.
More controversial are items #4 and #6, as they directly address the elephant in the kitchen of the blogosphere: ego. The picture Matt paints of weblog writers isn't terribly flattering, to be sure. Yet I like what he's dared to imply: that human desire is a natural fuel source in this space.
I say we tap it, to the benefit of us all.
Eric Raymond has formulated this best:
So, if rapid releases and leveraging the Internet medium to the hilt were not accidents but integral parts of Linus's engineering-genius insight into the minimum-effort path, what was he maximizing? What was he cranking out of the machinery? Put that way, the question answers itself. Linus was keeping his hacker/users constantly stimulated and rewarded--stimulated by the prospect of having an ego-satisfying piece of the action, rewarded by the sight of constant (even daily) improvement in their work.Sure, it's about "ego." But it's the same kind of ego that builds communities, and better still, community-created good works.
Later: A caveat for Matt's list: none of the strategies would work without 1.) a good head on your shoulders, and 2.) the ability to express well what's in it. Luckily for us, Matt's got both. Be sure to check out today's linkable & thinkable.
Posted Wednesday, April 30, 2003
Senate 40-0; House 109-0
Meanwhile, Berkman Fellow/EFF Attorney Wendy Seltzer writes a warning of her own in the aftermath of the RIAA's instant message warnings: "At one point in the Verizon lawsuit, the RIAA had claimed that it needed subpoena-derived identifying information simply to contact the users, but since the software itself permits them to send messages, that claim rings hollow. They want to pick and choose their targets for suit, to comb for The Hacker Quarterly of file-sharing, before judicial review and opportunity for the users to oppose discovery." (Here's the RIAA Warning FAQ [PDF], via the pholks @ Pho.)
The bright spot so far today? Dave Winer's op-ed on weblogs as a forum for educational & political speech (here's the Harvard Crimson version). It's one of the better pieces I've seen in terms of explaining, efficiently and in plain language, what makes weblogs different, why they are important, and what they can potentially accomplish. (I also like Dave's description the Berkman Center's mission: "At Harvard Law School's Berkman Center for Internet and Society, our job is to understand and help the Web." Yep. That about sums it up.)
Later: Speaking of what weblogs can do, Bill Hobbs, a senior editor at Corante, writes to tell me he's got the goods on the Super-DMCA fight for readers in Tennessee. Adds Bill, "A legislative hearing scheduled for today was postponed to May 7. The last hearing had some 20 opponents show up when one of them had read about the legislation only the day before, on the weblog Slashdot."
Later #2: Edward Felten on the RIAA warnings: "By announcing that they have can identify individual users but have chosen not to sue them, the RIAA will only bolster the impresssion that they will never sue ordinary users. The RIAA may try to counter this problem by saber-rattling, but that will only work for a short while. Eventually the RIAA will be forced either to accept widespread file-sharing as reality or to sue their own customers. I'm glad I'm not in their shoes."
Later #3: Glenn Reynolds has now pointed to Bill Hobbs' post on the Super-DMCA fight in Tennessee. Excellent.
Posted Tuesday, April 29, 2003
On Donna Wentworth's Radar (with Apologies)
In a rush, but can't resist passing along the following:
Matt "Have You Blogrolled Him Yet?" Morse, on Apple's "middle path" proposition: "[This] goes much farther than any other commercial service in giving users what they want, and if it is successful, it could reduce the music industry's attention on file sharing. Beyond that, it could render the current discussion of compulsory licensing moot."Finally, if you're not already there (and I suspect you are), there are Frank's links & Derek's musings. I don't have to tell you it's good stuff.
Posted Monday, April 28, 2003
The Filter is out (click on "Current Issue"). Among the bits that may interest Copyfight readers: a round-up of quotes from the Super-DMCA struggle:
"Are you making it illegal for me to tape the Tennessee-Florida game?"
—State Representative Frank Buck (D-Smithville) to State Representative Rob Briley (D-Nashville), who introduced Super-DMCA legislation in the state House in Tennessee.
1) We were present in mass and it made an impression.
—Excerpt from notes taken by an attendee at a Tennessee Senate Judiciary Meeting on its version of the legislation.
"Concealing the existence of communication is my dissertation, and concealing the source of communication takes place in honey nets. So I decided to be proactive about it and move it to another location, and for now just deny anybody from the states to download any of my software."
—Niels Provos, a University of Michigan graduate student who, fearing liability under Michigan Super-DMCA legislation, reportedly removed research papers and software from his home page and relocated them to a server in the Netherlands.
"Please, ask yourselves: who wants this bill? The only person who showed up here today to support this bill has a narrow special interest. The people who showed up in opposition are your constituents, people who live and work in this state.
We must also see this bill in its proper national context. This bill is a part of a concerted national special interest campaign...In response to Representative Linsky's good question, the representative of the MPAA here today couldn't even say whether the law is redundant when compared to the state's larceny statutes. This bill was not written for this state and it should not be enacted in this state."
—Berkman Center Executive Director John Palfrey, testifying against the Super-DMCA legislation proposed in Massachusetts.
"When you've got Verizon, the American Electronics Association, Harvard Law School and the ponytail gang all against you, then you've got a problem."
—An onlooker at the hearing.
Posted Sunday, April 27, 2003
this guy is good. Read the post in conjunction with Lisa Bowman's excellent piece on both the Verizon and Grokster decisions, and you'll be a good three steps ahead of the game.
Posted Friday, April 25, 2003
Grokster and Streamcast/Morpheus--Betamaxed
CNET (hyperlinks & emphasis, mine): "A federal judge in Los Angeles has handed a stunning court victory to file-swapping services Streamcast Networks and Grokster, dismissing much of the record industry and movie studios' lawsuit against the two companies.
'Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends,' Wilson wrote in his opinion, released Friday. 'Grokster and Streamcast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights.'"
(Via How Appealing--of course.)
Later: Edward Felten on the potential dark side of the decision: "Having lost in the Courts, the content industry will take the judge's hint and lobby Congress to pass legislation changing the rules. My prediction is that we'll see a bill circulated that creates an affirmative responsiblity to design products that make infringement as difficult as possible."
Later #2 John Palfrey concurring-sort of: "I was particularly interested in the line that says that 'additional legislative guidance may be well-counseled.' (p. 33 of 34) Judges are funny, aren't they? Read: please make some sensible law in this area and resolve the mess we've gotten ourselves in."
Later #3: Wendy Seltzer: "This decision is a happy contrast to yesterday's ruling against Verizon (RIAA v. Verizon), which gave copyright holders broad leeway to flood ISPs with demands for the identities of alleged copyright infringers. That decision, which Verizon is appealing, would compromise privacy and anonymity on the mere rubber-stamped say-so of any copyright claimant."
Later #4: Frank Field: "After reading the Grokster opinion, you can read the brief filed today in the Aimster/Deep case--since the tool purports to rely upon encryption to shield all participants in the file exchanges, Grokster and Aimster may share more than just a syllable."
Later #5: The RIAA's Hilary Rosen (via James Tyre on the Pho list):
Pardon Me II
Still otherwise occupied; same advice applies (Go, Derek, Go, Frank!)
Posted Thursday, April 24, 2003
Privacy Trounces Property
Would that that were true--but far from it [PDF].
I won't be here today; stepping out to tackle something else. Were I you, I'd keep an eye on Derek, Frank and Mary. All three have, in recent weeks especially, been hitting it out of the ball park on a daily basis.
Post script: I also recommend--if you haven't already--subscribing to the Digital-Copyright list-serve. Invaluable.
Posted Wednesday, April 23, 2003
Ask and Ye Shall Receive II
Also see Andrew Phelps at Emerging Tech, blogging...in...real...time. And Sarah Stirland, not at ETCON--but offering terrific pointers all the same.
Bonus: DVD Copying Court Battle to Begin [Reuters].
Bonus #2: Baby DMCAs Punish Copy Crimes [Joanna Glasner, Wired].
Bonus #4: bIPlog's Mary Hodder documents our ongoing blogalogue RE compulsory licensing. Frank says he's not yet ready to weigh in. I know exactly how he feels.
Posted Tuesday, April 22, 2003
Ask and Ye Shall Receive
Where It's At
At the top of my wish list today: notes from Fred von Lohmann's session @ Emerging Technology. Tomorrow? Notes from DRM in Practice: Rights, Restrictions, and Reality & Under the Hood of the Internet Archive's Digital Bookmobile. Not to mention the Journalism BOF, featuring Dan Gillmor and Doc Searls.
Later: Jamie Love has done a Grimmelmann: he's posted a lengthy, thought-provoking report on the IP Think Tank session in which he participated at the Blur/Banff workshops. A snippet, apropos of the debate over compulsory licensing:
The Blur/Banff discussions focused on the practical issues of how a compulsory license might work. We first examined how one might set or collect fees, focusing on such alternatives as levies on purchases of computer equipment or bandwidth. Alternatively we developed various systems for subscription services based either upon a flat rate or the amount of downloaded music. Some thought the fees should be paid directly from general tax revenue. There was no group consensus about these issues, but there was an appreciation that it would be good to structure the fee so that it was in some sense free on the margin. It would be a positive feature if listeners could freely experiment with unknown artists or music types, thus contributing to discovery, growth, and opportunities for new artists.The complete report is here; the archived webcast here.
Posted Monday, April 21, 2003
I recently found out about a law passed last year, Public Act 92-0728. This incredibly broad act amends the criminal code to make all sorts of perfectly reasonable things Illinois citizens do every day into felonies. The law is supposed to prevent people from watching Cable TV without purchasing it, but there are already laws on the books to do that--no new ones are needed. Instead the law's major effect will be to outlaw reasonable things like DVD players and wireless Internet access cards.Need to write your own? You're invited to copy/improve/modify the letter, tailoring it to your own purposes.
Later (April 22): Slashdot is enlisted to help stem the Super-DMCA tide.
Later #2: Giles Hoover fights the Super-DMCA in Florida--and under a CC license, too. Writes Giles (via email): "This [went] to everyone I know to get them to call. Working, too, thankfully--my local rep's office assistant knows me by name now and said 'dozens' of people had called her. Also, hopefully, Florida's committee sessions end this week--meaning here, at least, it'll probably not make it this year. Yeay! Anyway, the [PDF flyer] is public domain. Use as you or anyone sees fit."
Q: If There's a Ruling Strange in Your Neighbourhood, Who You Gonna Call?
Larry on a Roll
Larry Lessig has a fine brace of blogs this morning, including:
Later #3: Cory offers a fine brace of his own:
Posted Sunday, April 20, 2003
One Year Ago Today
...I started writing Copyfight. It has changed my life--mainly through exposing me to a community of thinkers from whom I continue to learn on a daily basis. Many are people whom I have never met, or only rarely, or not at all. Yet I've come to feel that we are in this together.
Posted Friday, April 18, 2003
Matt on a Roll
Matt Rolls a Hoover provides a rather nice summary of an ongoing, fruitful debate over compulsory licensing sparked by Fred von Lohmann and fanned to flame by Alexander Payne and Berkman's own Derek Slater. Wish I could linger to follow the thread(s); do, if you can.
Also worth the linger:
As J.D. Lasica discovered yesterday, quite the contrast.
Later: Siva Vaidyanathan is back. And like me, Siva has a new home URL: http://www.sivacracy.net. Be sure to follow him there.
Posted Thursday, April 17, 2003
Zittrain on Net Jurisdiction: Be Careful What You Ask For
Jonathan Zittrain, whose presentation on Net jurisdiction was among the indisputable highlights @ ILAW, now has a new paper out on that very issue: Be Careful What You Ask For: Reconciling a Global Internet and Local Law. Among the topics it tackles: Google's digital parlor tricks and the not-so-side effects of global zoning.
Felten on Net Politics: Two Tracks
I promised John Palfrey after he wrote this that I'd write a post about what I see as the next step in the copyfight: the collaborative development of a "Netizen's Guide to IP Politics." John's worried that the movement is disorganized. I argue that in the aftermath of Eldred, we are more organized than ever--despite the defeat. To my view, the next step is to address political strategy--and not sideways or in sweeping strokes, but minutely, and with rigor.
Slashdot has now captured a few thoughts from Edward Felten on the issue. Felten, as Seth Schoen recently remarked, is one of the few of us who has been able to communicate particularly effectively with "outsiders" about what is at stake in the current copyright wars. Below, he identifies two strategic "tracks": 1.) pumping up our lobbying power and 2.) honing our rhetorical strategy.
Slashdotter: Do you feel that it would be a good time for a shift in strategy towards more active measures such as forming a group to lobby representatives directly, issuing mailings about the DMCA particularly to those whose representatives support legislation like the DMCA/UCITA/SSSCA, or beginning a television ad campaign? Such an endeavor is bound to cost a bit, but I can't help but feel that particularly with 2004 coming up having a bit of organized PR on our side of the debate would be quite helpful.I think Professor Felten is right-on in both instances. The second track, especially, intrigues me. If I'm reading him right, Felten proposes identifying digital strategies in the "real" world. Lexmark is an obvious example, but we also have this kind of thing. And this kind of thing. Making reference to these examples may help people who don't read Slashdot, or Crypto-Gram, or Freedom-to-Tinker, to understand in a more visceral way what's a stake in this debate. Because the battle isn't "out there" in cyberspace, but rather, and increasingly, where we work, play, learn, live.
More thinking on this to come. Anyone else want to join in? Do let me know.
SETH FINKELSTEIN, programmer: We've talked about what the problem is, but what are the best ways to get to the results we want? What can non-lawyers do? I asked Richard Stallman this question (see Stallman's 2001 Forum talk on copyright). He said if you see a movie by a big studio and you don't like it, then don't pay for it. Outside of voting with dollars, what do we do? Just sit back and cheer on Lawrence Lessig?We have a good start, here. Again, more to come.
In response to a few readers: yes, my XML feed is temporarily on the blink; I'm asking a few tech folks I know for help. I hope you can bear with me.
While I'm blinking, here are a few others I'd keep an eye on: Edward Felten, Frank Field, Derek Slater, Matt Rolls a Hoover, John Palfrey, Current Copyright Readings, Dave Winer and the Weblogs at Harvard Law community aggregator--a constant source of goodies from the likes of the witty and wonderful Denise Howell, Marty Schwimmer and others.
I also recommend that you check out YJoLT--Yale's Journal of Law & Technology, blogified. There, Brodi Kemp has Student Notes on "Copyright's Digital Reformulation." A snippet (emphasis, mine):
IP law was created to foster a vibrant public domain by encouraging the creation and exchange of knowledge. Recent developments have shifted that balance with a dramatic and one-sided strengthening of intellectual property rights. These policies empowered digital containers, or code, and trade law as the new enforcers of intellectual property rights, but did not pay complementary attention to user rights and the public domain.I like where this is headed.
Later #2: Feed is fixed. Thanks, Alex.
Posted Wednesday, April 16, 2003
...to Copyfight's new home. Same bat time, same bat channel--new, more mnemonically friendly URL: http://www.copyfight.org. Please adjust your sets accordingly.
Posted Tuesday, April 15, 2003
In the meantime, though, here are a few photos from the conference, by a Brazilian participant:
Left to right, starting in the back row: John Perry Barlow, Larry Lessig, Charlie Nesson and Yochai Benkler. Front row: Max Fontes, Jonathan Zittrain, Terry Fisher, Joaquim Falcão, and Cora and Ronaldo Lemo.
Yours truly, Charlie Nesson.
Charlie and I are looking awfully sober. We weren't. T'was a wholly unique and all-around terrific time.
Posted Monday, April 14, 2003
So last week Provos took his research papers and software off of his home page, and relocated them to a server in the Netherlands. To play it safe, he also erected a barrier of sorts to US visitors: to access the new page, a user has to answer three questions affirming that they are not in the United States, or another country with similar laws. He hopes it's enough to give him legal cover. "I'm not really sure how this works. If I give access to people in the US and I live in Michigan, could that be construed as a problem?," he says. "And there are a lot of other states that have passed their own laws."While we're talking DMCA & research, Penguinal Ebulliance has a first-hand account of the recent Copyright Office hearing on exemptions to the anticircumvention provisions in the DMCA. Seth Finkelstein was there to testify; he says the notes are spot-on.
Later: For those of you just tuning in to the Super-DMCA debate, here's a post that acts like a mini-backgrounder.
Later #3: John Palfrey to the Boston Globe: "I've never heard anybody--not a prosecutor, not anybody in law enforcement--saying we need these laws. The only people I hear saying we need these laws are the Motion Picture Association."
Posted Friday, April 11, 2003
Apple, the company that coined the ad phrase, "Rip, Mix, Burn," is reportedly in talks to buy Universal Music Group--which according to CNN, "dominates the industry in 63 territories around the world and accounts for about one-quarter of all CD sales."
Quoth Cory: "The words 'holy crap' come to mind."
Later (April 14): Matt of Matt Rolls a Hoover: "I didn't want to touch the reports that Apple Computer is interesting in buying Universal Music, but I can't avoid it. Here's the thing. I'll believe it when I see it."
Talk Talk II
I had a severe case of inarticulate at last night's Weblogs, Information & Society conference. The truth is, I'm a writer because I'm not a speaker. Those who can do both put me in awe.
bIPlog's Mary Hodder, who expressed herself beautifully at the talk last night, has also written something nuanced and thought-provoking about authorship, the Internet, and the public domain. To boot, the form follows the function; this piece wouldn't make nearly as much sense if published off-line.
You read, learn and, most importantly, integrate the thoughts of others with your own to figure out whether you understand them. Feedback is also important and that is where trackbacks and Technorati's link cosmos come in handy. There are few enough of us bloggers that when we link to the masters, they check out our writing and let us know when we are wrong.For those of you who missed the conference, it's archived here.
Posted Thursday, April 10, 2003
Quotable + Notable
I'm still catching up on what's been happening over the past few weeks; following are the few bits & pieces that have so far caught my eye:
US District Judge Richard Sterns, dismissing Edelman v. N2H2: "There is no plausibly protected constitutional interest that...outweighs N2H2's right to protect its copyrighted property from an invasive and destructive trespass."
LawMeme's James Grimmelmann, responding, "To begin, this is the first time I have ever seen anyone talk about a 'trespass' to intellectual property. Intellectual property is one thing. Trespass to chattels, where the chattels are computers, is another. But the two concepts have never been combined in the caselaw so far as I can tell. I'm not so clear on why the circumvention would be 'destructive,' either."
Berkman Executive Director John Palfrey, testifying against the super-DMCA legislation being proposed in Massachusetts: "Internet law in the United States is already a complete mess. This legislation would just make things worse."
Wendy Seltzer, founder of Chilling Effects, on encountering the Creative Commons default license in her new Harvard weblog: "To me that default choice, and the ease with which I could alter it, highlights what Creative Commons adds to the mix. It tells me that copyright isn't just for the movie studios' lawyers, and it isn't always set on "high"--it's something that the smaller-scale publisher can use to indicate willingness to share, as well as right to control." [Wendy's previous weblog here.]
Only a few people, like Ed Felten and Larry Lessig, have been able to communicate particularly effectively with "outsiders" about what is at stake in the current copyright wars. And even they, when they give speeches, are mostly addressing people who already have at least a passing interest.
Bikram Choudhury, on copyrighting his yoga poses: "To stop them from stealing I must go to the lawyers. When in Rome, I must do as the Romans do. When in America, make Bikram copyright and trademark."
Posted Tuesday, April 8, 2003
There's been a lot of talk lately about weblogs--and this week, there will be lots more.
First up is my fellow Berkman-ite, Dave Winer. Since joining the Berkman Center, Dave has engaged with the Harvard community on an impressive scale--and continues almost daily to up the ante. Tonight at Harvard's Institute of Politics, he's giving a talk about speech issues on the Net--specifically, issues surrounding weblogs. The talk takes place tonight at 4:00-5:30 p.m., in the Faculty Dining Room on 79 JFK Street in Cambridge. [More on this from John Palfrey.]
Next up: Weblogs, Information & Society, a panel this Thursday at 6:00 p.m. EST at the University of California at Berkeley's Graduate School of Journalism. I am much, much more than honored to be a panelist, along with Dan Gillmor, Scott Rosenberg, Edward Felten and Ernest Miller. Ross Mayfield will give the presentation right before the panel.
A final heads-up, which we're on the topic of Net speech: next month, Berkman's Jonathan Zittrain & John Palfrey will take part in a panel discussion on "Freedom of Expression in a Digital Age: Reading, Writing and Cyberspace." Be there.
Later: In answer to a few queries--yes, I am still alive. Still buried under a few urgent assignments, however. I hope to find my way through the rubble soon.
Posted Friday, April 4, 2003
I'm back, but not (yet) to blog; I've got a pressing assignment & lots of catching up to do.
But before I go, the quote of the day--from an onlooker at the recent hearing on the mini-DMCA initiative here in Massachusetts: "When you've got Verizon, the American Electronics Association, Harvard Law School and the ponytail gang all against you, then you've got a problem."
Posted Friday, March 28, 2003
Internet Law Program--the Faculty Wrap-Up and Q & A
We've arrived finally at the last session here at ILAW--the one in which the faculty entertains the questions that participants have previously submitted.
Later: Alas--due to yet another Internet connection problem, my notes on the final session were lost. I'll check with other Berkmanites as to whether we will have an audio recording available; I suspect we will.
As for me, I'm off for a few days at the beach (and a frosty drink or two). I'll be back after April 5th or thereabouts. See you then.
Internet Law Program-- Julian Dibbell on Virtual Worlds
Julian Dibbell--who wrote Portrait of the Blogger as a Young Man--is next at bat. Julian is currently a fellow @ Stanford's Center for Internet and Society; there, he co-teaches a class with Larry Lessig.
Julian also wrote this fascinating piece in Wired magazine, exploring the topic he's addressing today: virtual worlds.
(Hmmm...perhaps Andrew Phelps--Corante's newest weblog columnist--will tune in.)
[Julian displays the title of his presentation: Black Snow, A Parable Concerning Virtual Worlds and the Nature of Property on the Internet.]
Q & A:
[...missed a bit...]
Julian:...I'm not saying there is a legal case here. I'm saying there is an odd perversion of IP law. And if people are in many senses living in these worlds, what governance will there be in them?
Participant: Why didn't Black Snow just write a computer program to play the games for them?
Julian: They did that as well. They attempted to automatically do this; but they couldn't, I imagine, fool the game entirely. And why not pay for human beings--if you can pay them slave labor wages?
Participant: Are there any rules within the game itself--not to sell these imaginary objects?
Julian: The whole game is about trading, on a certain level. It feels like a natural extension of the game. And if I buy the item on eBay, I still have to go into the game to enjoy the rug.
Participant: Did the player sort of earn the polar bear rug? Doesn't he sort of own it?
Julian: I gave eBay and Mythic the benefit of the doubt when I said perhaps there is an IP issue. But perhaps this is more properly a contract issue.
Partcipant: I'm intrigued by the issue of investing time and earning something.
Julian: This introduces a counter-argument. People who are rich could actually go ahead and buy their way to another level in the game.
Break time; back in half an hour.
Internet Law Program--Marcos Carnuti and Yochai Benkler on Privacy
Marcos begins [in Portuguese--and wearing a black t-shirt printed with the words, "I read your email"]:
We are experts in secruity and we work at showing how systems can be broken and how they can be fixed. You may have noticed I am very excited--I am not a lawyer like most of you but rather an IT professional. I'd like to talk about the technical aspect of privacy: It's zero. And it's dropping. I'll talk about how easy it is to intercept communications. I have some tricks to show you.
Alas--the translation devices are no longer working. Hold tight; I'll be back when Yochai begins.
Yochai steps to the podium:
Q & A:
Participant: Can you describe the controversy librarians in the US face?
Yochai: This melds a number of issues. Can you go to a library and learn free of social constraints? Privacy to some degree is supposed to allow freedom from social norms. Should you be able to access the Internet at libraries and not have librarians police you?
Internet Law Program--Jonathan Zittrain on Jurisdiction and Zoning
Note to those of you looking for Larry Lessig's speech on Speech: due to connection problems, the majority was unfortunately lost. A bit, however, remains; it's captured over at Weblogs at Harvard.
Next up after JZ: Yochai Benkler on "Privacy," Julian Dibbell on "Virtual Worlds," and finally, the faculty wrap-up.
JZ steps to the front:
To me jurisdiction is the very first problem you hit when you study cyberspace--it's the last as well. And in the middle, so I guess it's there all along.
Posted Thursday, March 27, 2003
Internet Law Program--Charles Nesson and Joaquim Falcao on Democracy
This session will be webcast; details available here.
First, an intriguing snippet, then the rough notes.
Snippet, from Charlie Nesson:
Complete rough notes:
Joaquim Falcao has begun; however, I am having trouble with the device I have for translation, so I've missed a bit.
A few snippets I was able to capture of Joaquim's speech:
Charlie Nesson then steps to the podium:
I will start with the idea that this media offers both new means and new challenges for expression.
Charlie: Let me say a few personal remarks. What semiotic democracy means to me.
Each of us is able to step forward and try to make meaning in a common space. This is a big part of the reason why we founded the Berkman Center. We saw a new space opening up--not like any space we had seen before. Cyberspace does not exist until we build it; and how we build it is how we will live in it.
It's a space that to me is rhetorical in nature. And one in which the fundamental decision is between open and closed. The Berkman Center advocates a constructive tension between these two. Mediating this line takes the kind of analysis that we hoped to elaborate upon. Each faculty member is committed to this. Larry Lessig was the first Berkman professor; he has been articulate on this point. Jonathan Zittrain is the second Berkman professor. Jonathan goes about a form of research in relation to filtering by governments that is meant to hold up a mirror of truth. Yochai Benkler, whom we claim as our own--he presents very clearly very complex questions.
John Perry Barlow--he's a Berkman Fellow. He is a self-described cognitive dissident. He stands for open, provocative conversation and debate. He wrote recently an email that courageously identified with Bush and Cheney. It was compelling, even for those who disagree.
Terry Fisher--the master of copyright and the force behind ILAW. This is one way in which we try to make sense of this space. In 1998 we asked whether the Internet would inevitably drive a deeper wedge between the rich and the poor. We also articulated the goal of building a commons in cyberspace.
I want to stress that in cyberspace, the only way we will have a commons is if we build it ourselves.
In 2002, we had another conference--on Harvard's digital identity. If this is rhetorical space, the question is--what character will inhabit it? A question we asked: Should the fruits of Harvard's labor be sold--or shared freely on the Internet?
I believe we should see the opportunity that cyberspace presents--it's not out there. It is right here. The responsibility is ours, not anyone else's.
One of the key questions at the conference on identity: What is the meaning of the Harvard brand? What does it stand for? I see our shield here. It says "veritas." Truth.
We are in the shadow of a larger conflict--the US is acting. It is using its brand in ways some of us wish it was not.
I hope this brand [shows Harvard shield] can also stand for America. That it can represent values that we support.
Participant: Can you talk about how the Internet could threaten democracy?
Charlie: I am fascinated by this embedding of journalists in the war. I wonder what the digital cameras will do. And our embedded journalists are not the only ones. There are journalists from around the world. Under the normal media channels--under the radar--is the Internet. Whether this is danger or opportunity--this is the time that we live in.
Participant: You [contaminate?] everybody when you talk about democracy and the Internet. The current situation in the US is that the Americans are putting people in jail without trial and spying on people. How do you see this scenario?
Charlie: I speak only for myself.
Larry: Speak for me, too.
Charlie: I have Larry's proxy. Some years back we were taught that an actor should be president. We bought that. But we are not stupid. We may be slow but we are not stupid. I believe there is a fundamental wisdom in the American people. I believe we will catch up. This is what the promise of semiotic democracy means to me.
Dave, Tonight @ Harvard
With my head briefly above the surface for a moment, I recommend that all you Harvard folk who'd like to start a weblog vist with Dave Winer tonight at the Berkman Center. Would that I could be in two places at once.
A few other vital bits from the blogosphere I've been missing so dearly:
Internet Law Program--Larry Lessig v. Jason Matusow of Microsoft on the Merits of Open Source Software
The question: Has this debate evolved since this past July?
Good morning. My role within MS is to look at the benefits of open source and help bring within the company the understanding that it is beneficial for people to have access to source. How do we integrate this within our business of offering proprietary software?Larry replies:
My objective is to make clear where there is a disagreement between us. One quibble: are we describing commercial v. noncommercial development rather than proprietary v. nonproprietary development?Jason: In the concept of the bucket of chicken and the secret recipe. There is value in just getting the chicken. You didn't have to cook the chicken. It may be that I do not want to be a software developer. I may want to sell shoes and buy software off the shelf.
On shared source--the most recent license we developed is very like an open source code. It has a GPL carve-out. Cannot restrict commercialization.
Is source a good teacher? Unequivocally, yes. Is it the panacea for all teahcing woes? No.
MS does provide sample source code for this purpose. Helps developers to write better applications. No question.
IBM has a clear intent to compete with Sun. Unix systems. They can take critical tech from AIX and Sun cannot pick it up within Solaris without running into concerns about ownership.
RE a rich ecology. There are benefits in government-supported software being released publically AND made commercial.
At MS we funnel millions of dollars into educational institutions all around the world. This is given freely.
Larry: I like the KFC response. Obviously, some would rather just like to buy the chicken. If all software were proprietary, we'd have to reinvent the wheel repeatedly.
All strategic behavior is not bad. There is a subset of strategic behavior that only market leaders can engage in--and antitrust is there to control it.
MS has said that government should not support GPL. MS said the primary stimulus for innovation is IP protection. Not true. One exception. IBM is an exception.
GPL doesn't forbid commercial licensing. It's forbids proprietary licensing.
MS says the private sector is unable to develop/build on GPL--not true. Only some parts of the private sector are foreclosed.
If this is MS's argument--then the government should be foreclosed from supporting anything but software in the public domain. This doesn't make sense.
Q & A:
[...Missed a bit from Terry RE patents and the very few limits it has in relation to copyright...]
Participant: One of the important points when we talk about open v. closed software is the issue of security. Isn't this important when we talk about government making decisions about software? Will you recommend the type of software that makes the most sense for government security? And can you address reverse engineering?
Larry: The first point about security is less important than it used to be. MS is sharing source with governments. I don't buy the paranoid thinking about the fabled "NSA key."
Jason: We are now sharing source code with governments. Brazilian government can do a full compile to ensure this. What's more important is that security is a broad industry concern. The notion that proprietary OR closed software is more secure is lunacy. A researcher found that there is no difference between prop. and open code software in terms of vulnerabilities found.
Charlie Nesson: Jason, I am interested in governments adopting open source software policies. This has been opposed by MS. Why? I'd like to know what your take is on this. Brazil is an innovator here. Governments may decide they'd like to have open source--runs on older machines better, will be a help in developing indigenous capacity.
What is MS's reasoning for opposing this--if not for lock-in?
Jason: On the concept of preferences. Not only MS is opposing this. It's industry-wide. Software procurement preferences are not a good idea. You are precluding the choice, here.
MS has never advocated that governments should never use GPL.
Free does not mean price. Most governments will seek professional assistance with the software. Free is not a no-cost issue.
The concept of file formats comes up quite a bit--Bruce Perens talks about this. But so much remains freely available--HTML, RTF, XML. People tend not to do this, though, as they like the whiz bang features that they can get with proprietary software.
What about sustainability? There is a concern because many of these governments are even mandating GPL software--not just open but free.
Huge difference between binary and source code. Source is the secret recipe.
Charles Nesson: I didn't hear a response about lock-in.
Jason: Yes, there is a benefit for people who need to use older software. Is the intent there transparent that we hope people will adopt MS software--yes.
Larry: What I hear you saying is that MS does not advocate that people not use the GPL. Would you say that MS believes it's important to the ecology?
Jason: Yes, absolutely. Look at GCC! Our statement isn't that GPL shouldn't be part of the ecosystem.
Our problem is with technology transfer--we cannot include certain code without concerns about ownership.
Larry: Same thing is true about proprietary code--you would have to buy it to use it.
[...missed a participant's question...]
Jason: The vast majority of security fixes now are not language dependant. One of the benefits of open source is that you can localize quickly. But you do transfer costs. You must do the localization. You bring yourself forward.
Internet Law Program--Yochai Benkler on Free Software and Commons-Based Peer Production
Before we begin, a note about today's webcast session: It will be Charlie Nesson and Joaquim Falcao on "Democracy" (2:00 p.m., Brazil time).
I'll talk first about freesoftware. What is it? How does it work? What legal arrangements lay beneath it?Terry: One anecdote. Larry Lessig yesterday mentioned the Mexican government's consideration of extending copyright to forever minus a day.
Slashdot.org has now picked it up--234 people are now talking about this.
Participant: When I think about peer production I think about a way of making it visible in a legal process? The development of law via peer production? This could guarantee more rights to the minority?
Yochai: That's a hard question, but I will try. We have tried this with the Openlaw project. You can start with a draft of a law. Your concern with majority rule and minority interest--you need to be concerned with the power of law. I make no claim that peer production is a great way to influence state force. That we have democratic processes for.
Participant: Richard Stallman told us that there is a bill in Congress that intends to forbid free software. Is this true? Can free software be a strategic way to assert Brazil into the era of information technology? What can we do?
Yochai: Great questions. I don''t know of a movement to ban free software in the US. Major battleground is whether the government should BUY free software. The relationship between free software and freedom. You can support government buying free software without caring about freedom--only quality. But I do think that free software is an aspect of freedom. In the industrial info. economy--life was lived in a regimental manner. After work, they go home and watch TV--consumption is also regimented. The limited goods. Peer production opens up to neither consumer nor producer but both: a user.
Last question--the question of global equity. [...] This does allow for talent everywhere to compete with fewer barriers. [...]
Posted Wednesday, March 26, 2003
Internet Law Program--Yochai Benkler and Larry Lessig on Current Legal Controversies in the US
First, a pause to thank the OSCOM folks for the compliment. I may do.
Second, a note about what's up next. The session about to begin--about current legal controversies in the US--will be webcast live. Details are here.
Larry kicks it off:
Yochai steps to the podium:
Internet Law Program--Terry Fisher on "Plan B" for IP on the Net
After an excellent speech on the state of play RE IP on the Net, Terry is preparing to offer "Plan B."
Later: a brief note for those who have been watching the webcasts: today we will be webcasting "Current Controversies in the United States"--a session led by Larry Lessig and Yochai Benkler. Updated details are available on the webcast schedule page, here.
Later #2: Due to the difficulty I've had in taking notes on presentations presented in Portuguese and then translated into English, I won't be offering notes on the next session, "Current Legal Controversies in Brazil." Instead, I will begin posting again at 4:00 p.m. local time, during the session described above.
Q and A:
JP Barlow: There are aspects of this final propsoal I find attractive. But the devil is in the details. Taxes will not be politically feasible. I'm also concerned about the figures you cite; you may be accepting uncritically the recording and film industries' assessment of their injury. I suggest we start with something simpler. This is very complicated at the get-go.
Terry: As to the numbers, I have indeed been conservative [...]. What about, though, starting with an entertainment coop? A privatized voluntary version of the same system? From a political standpoint this may be a good deal more plausible. [...]
Another primary problem is the start-up. The launch would be every difficult.
JP Barlow: What about something more similar to compulsory licenses (ASCAP-like system).
Larry Lessig: The criticism you have about plan #2 is that it would weaken semiotic democracy--because there would remain an incentive to encrypt content. We have had this argument, but I want to flag this assumption. If you imagine the architecture of distribution changing dramatically, as I think they will, the incentives to use copy protection encryption will go down.
Terry: An intriguing possibility, yes. We began this conversation at the EFF some time ago, when they were discussing slightly softening EFF's hostility toward encryption technologies.
Terry: [...] Larry, I agree. But a response: compulsory licenses are problematic to me. Transaction costs rise. You also suggest that the need for lock boxes will erode. But how long might this new world take to emerge? [...]
Larry: I will distinquish between legal and technical mechanisms. We assume legal distinctions are totally ineffective. I don't think this is true. What's interesting about the current debate is that people think the only was to effect compliance is with technology. I don't think this is true.
Terry: This is inconsistent with your first book, Larry. Code works better than law. Now you seem to be suggesting the opposite.
Larry: If the law was great, you wouldn't need the code.
JP Barlow: One of the principal evils here is the desire on many parts to see that every expression gets paid for. Your scheme seems to reiterate this desire. I am comfortable with squishier systems. People can get paid reasonably well.
Terry: But for this reason you should like the third model.
JP Barlow: I do like the third model, but the implemenation bothers me.
Participant: You noted this morning that some speakers here were worried about non-authorized distribution of the ILAW notes. I wonder about the underlying values we need to protect. According to your own definition of semiotic democracy, this principle applies to more than movies and music. The issue is more rich. Consequently, I'd like you to elaborate on whether your system is applicable to the whole universe of intellectual "products."
Terry: The reasons why some of us are reluctant to put the materials online isn't that we want to sell them; it's that we have unfinished material there. Our ideas are in flux. These are essentially unpublished works.
But you ask--isn't my argument applicable to other materials? The answer is yes. I have concentrated on these industries because they are the ones most threatened [...]
Books, games, software are just as amenable to this proposal. Already people cringe at the scale of this reform. So I narrowed this for practical and political reasons.
[In response to a participant's question]: First, I think you are right that the boundary between streaming and downloading is blurring. [...]
Does this system seek to compensate copyright holders for every download of their work? No, the numbers are a response to what the relevant industries stand to lose in revenue.
The real problem in this space, it seems, is helping the artist. [...] The goal with my proposal is to make it so the artist can bypass the intermediary entirely--freeing them of the financial shackles of recording contracts.
Internet Law Program--Terry Fisher on IP on the Internet--Today and Tomorrow
Today kicks off with two back-to-back sessions with Terry Fisher--the first to set the stage for the current legal conflicts over IP online--asking, essentially, "How did we get here?"--and the second to offer the proposed solutions, presumably from Terry's forthcoming book on the topic: Promises to Keep.
In other words, we're entering Copyfight territory.
After a few administrative announcements, Terry begins:
Larry Lessig breaks in: After UMG bought MP3.com--there was a malpractice suit. The law firm was quite shaken. Reduces chances these types of cases will be brought.
Excellent speech. Larry Lessig, sitting next to me, just said to Terry, "What if I wrote a piece for The Atlantic about your book?"
Posted Tuesday, March 25, 2003
Internet Law Program--Terry Fisher on Domain Name Conflicts
We're back in this session to IP--intellectual property, not internet protocol. Terry--who spearheaded the ILAW program--will address domain name conflicts.
Professor Antonio de Figueiredo Murta Filho will then join Terry to discuss database protection.
Later: It turns out that Terry's discussion flew by a bit too quickly to capture in detail--perhaps because of the need to cover both domain name conflicts and database protection in a single session.
In addition, I am finding that I cannot follow Professor Filho's talk; even with the help of expert simultaneous translation, I feel I am falling well short of accurately conveying the substance.
Accordingly, I've culled a section of Terry's speech that may be of particular interest to those of you following the law in this area: his assessment of what is wrong with the way domain name conflicts are currently resolved, and a list of proposed solutions:
Internet Law Program--Jonathan Zittrain on the Technology of the Internet
An amusing bit first, followed by the rough notes:
Complete rough notes:
Break time. Next up: Terry Fisher on domain name conflicts.
Internet Law Program--Yochai Benkler and Larry Lessig on Spectrum Policy
Here, an intriguing snippet; below, the complete (if still rough) notes.
Participant: Isn't the spectrum limited?Complete Notes
Larry: I am the interrogating attorney, and Yochai is the witness. Mr. Benkler, are you ready to proceed? Raise your right hand [big laugh].Q and A:
JP Barlow: There is another cost to consider in the property model. This is dumb markets. Money was spent needlessly in British Telecom spectrum auction.
Participant: This openness issue is wonderful--but are you considering security?
Larry: Is there are difference in security in property v. openness?
Yochai: Well, property is a bit easier to jam through market exchnage points.
The problems, though, are roughly similar.
[...missed a bit...]
Yochai: Are there security problems inherent in both systems? Yes. Have commons systems proven less secure? No.
[...missed a bit...] Participant: If it's not communism, is it capitalism?
Larry: Yes, it is capitalism. The market is in the devices.
Participant: Isn't the spectrum limited?
Larry: It is limited. But the vast majority of the spectrum *isn't being used.* If it turns out that there will be scarcity, we can layer property on top of it. But right now, it's not necessary.
Example: in the future, will we be paying for oxygen? We can imagine that this might be possible. But because we can imagine it, it doesn't mean we should start buying and selling *now.*
Lunch break. Next up: Jonathan Zittrain on the technology of the Internet.
Internet Law Program--Yochai Benkler on Internet Access
Surprisingly enough, I was able to capture much of Yochai Benkler's excellent talk on Internet Access.
Following is the rough cut:
There are two "ideal" models of communications: broadcast vs. Internet. If we think of the important communications architectures of the 20th century, we see there is broadcast, telephone, and Internet.Q and A:
Terry Fisher: The government builds roads. Should the government build wires?
Yochai: It depends. Are you in a place where you can trust the government? If a government is looking to exert control and builds the wires, that is a bad idea.
On the other hand, in the US we have a small group of market actors looking to control the infrastructure. The goverment could be beneficial here.
If you build a fiber network--whether publicly or privately owned--the goal should be to separate that from the other layers.
[In answer to a Q from an audience member...] If I had to predict which technology would be useful to developing countries--it would not be satellite. It would be terrestrial, unlicensed wireless. This is about freedom and openness; this is a concern everywhere. Pick a technology that doesn't require a control center. It won't be any time soon that you will see an openness elsewhere than in the unlicensed wireless I am advocating.
Internet Law Program--Live from Rio, Day Two
For the first time since the start of this program, I've got Internet access right off the bat. Feels absolutely luxurious.
I'm sitting in the front of the room this time, right next to John Perry Barlow--who yesterday made a number of provocative remarks about Brazil. He described it as self-focused in some respects, yet at the same highly--even uniquely--"socially networked."
Appropriately enough, the first presentation this morning is by Yochai Benkler on Internet Access. The second presentation, a session on spectrum policy, will be led by a Larry Lessig/Yochai Benkler team.
Update: A note to those of you wondering where the notes are from Jonathan Zittrain's session on ICANN: they're still trapped on a computer in word document form. I hope to have them up by the end of the the week.
Posted Monday, March 24, 2003
Internet Law Program--Live III
It's a good thing the session on "Intellectual Property, The Internet, and The Economics of Culture" was webcast: the conversation was particularly fleet-- and conducted, to boot, in both English and Portuguese.
This, along with spotty net connections, has made blogging the sessions--at least in the way I did the program in July--quite a bit more than a challenge. So I've decided that as of right now, I am switching strategies: you will find here selected passages and quotes, but not the whole kit and kaboodle.
That decided, following are a few selected bits from the session:
John Perry Barlow: It's very difficult to get us out of the industrial-era thinking that scarcity and value go together--and the developing world has the short end of the scarcity/value model.
Internet Law Program--Live from Rio II
Moments ago, Charlie Nesson introduced the current session, which explores the digital divide; following are my very rough running notes:
[Later: reading back through these, I had trouble parsing them--but because I have no connectivity outside of the conference hall, it will take me a bit to clean these up. Bear with me; I'll review for coherence ASAP.]
Silvio Meira, chief scientist of CESAR and a professor at the Federal University of Pernambuco: "What's going on with my presentation?"
Internet Law Program--Live from Rio
After the inevitable connection trouble, we're online!
Reprising my inaugural experiment with live blogging from the Berkman Center's ILAW program this past summer in Cambridge, I'm here in Rio this week to take notes in real time as the spring session unfolds. Among the dramatis personnae: Gilberto Gil (minister of culture in Brazil), Julian Dibbell, John Perry Barlow, Yochai Benkler, Larry Lessig, Charles Nesson and Jonathan Zittrain.
Without further ado, here goes:
Terry Fisher steps up the podium and, after a brief talk about the makeup of this remarkably diverse group of participants, offers a few logistical announcements--including the fact that one session per day will be webcast live. Today's webcast session: "Intellectual Property, The Internet, and The Economics of Culture"--with Gilberto Gil, Minister of Culture in Brazil and the inimitable John Perry Barlow, EFF co-founder and vice-chair and a Berkman fellow.Next up: Larry Lessig with the opening speech.
[Missed a bit here...]. Two views at the beginning of the discussion RE this space: Johnson and Post argued essentially that electronic media will destroy government. Then, too, John Perry Barlow wrote the Declaration of Independence in Cyberspace: a warning for government to back off.
Q and A session:
Audience member: There are always technologies to recreate original anonymity of the original Net.
Posted Friday, March 21, 2003
Get Your JOLT Video
Posted Wednesday, March 19, 2003
I Don't Who Matt Is
...but I am very interested in what he has to say.
And for more like that, visit Derek, scrolling down and then scrolling back up again.
I'll continue to be out of the office tomorrow and may be offline much of Friday. But the next stop is ILAW, from which I will be blogging daily. Can't wait.
Posted Friday, March 14, 2003
Our experimentally short Filter is out, but I'm not yet free to play: other duties are tugging at my sleeve. All of which is to say that posting will continue to be light for
Before I go, though, a thank you and a promise.
Thanks to J.D. Lasica, for including Copyfight in the linkage to weblogs that "display...breadth and depth of expert knowledge...on subjects as diverse as digital media, wireless networking, copyright infringement, Internet video, and much more, all written with a degree of grace and sophistication."
I am honored, and inspired.
Later: RE rhetorical strategy: something 100 percent relevant, from Paul Boutin.
Not that CC, this One
Check it out: a brand new Copyright Colloquium.
Posted Thursday, March 13, 2003
And it's (mostly) free and open to the public.
So you have no excuse.
Later: Good news--it will also be webcast. Details here, soon.
Later #2 (March 15): More good news--Derek's taking notes.
Posted Wednesday, March 12, 2003
...will be light today; an abbreviated version of The Filter is due out soon.
A short list of weblogs worth the visit this morning:
Later #2 (March 14): What he said.
Posted Tuesday, March 11, 2003
Larry Lessig's in the House, Part II
Orin Kerr is a careful and powerful critic (in the good sense of that term) of much in the law of cyberspace. He has posted a careful and powerful criticism of my post yesterday. So too have others. But the line I agree with most strongly in Orin's post is: "the public domain will be best served if Eldred is treated as a launching point for legislative reform, not an example of judicial foul play."
In a case Berkman Affiliate Alex Macgillivray is watching and Denise Howell's firm is handling, American Airlines last week obtained an temporary injunction [PDF] against Farechase for scraping the AA.com site for "web fares" information--relying, according the EFF site, on "trespass to chattels and breach of a browsewrap license."
Writes Alex, "The decision is very interesting for a number of reasons...if Fred [von Lohmann] is right, AA v. FareChase is an extension of the various robot (including eBay v. Bidders Edge), trespass to chattels spam (including CompuServe, Inc. v. Cyber Promotions, Inc.) and browsewrap (including Register.com v. Verio) cases."
Says Denise's colleague, Morgan Tovey: "At [American Airlines]'s request, the court has, by this order, created a new property right not only for AA but for all large companies with Internet websites: the right to monopolize forever public information."
The operative petition, briefs and temporary injunction order are here.
Update (March 14): Slashdot is now chasing the Farechase story.
Larry Lessig's in the House
...or should I say, back in the blogosphere.
And no, I have not yet learned my lesson. I'm blogging it.
Later: In other news Lessig, J.D. Lasica has now posted his notes on SXSW, including Larry's talk: "It was an amazing speech. Lessig received a rousing standing ovation--the only standing ovation at the convention."
Bonus: The decidedly un-PC, yet undeniably hilarious, movie J.D. refers to (click on "Bush och Blair").
Siva Vaidyanathan, returning from a meeting with a group of colleagues in Italy, evinces reservations today about the two predominant modes of discussion RE the copyfight--"commons talk" and "property talk" [emphasis, mine]:
I am almost as uncomfortable with "commons talk" as I am with "property talk." I think "commons talk" appeals to a narrow field of American politics, and an even narrower field of global politics. I understand its appeal in the terms of the legal rhetoric of American copyright and its overt tracking of the rhetoric of the largely successful environmental movement in the United States. But I worry that it does not truly capture all that is at stake in these battles. Just as you can have national forests on maps that are steadily decimated by private logging interests, you can have the legal framework of a "public domain" or an "information commons" without having any real ability to enjoy or rely upon them.My own gut reaction: I am not so sure that we can or should create a one-size-fits-the-globe rhetorical strategy. It's important that the talk fits the audience it's intended to persuade. While environmentalist rhetoric may not "truly capture what's at stake in these battles," it may nevertheless be, at least in certain arenas, the most powerful counter to property talk.
In other words, I think we need to get more granular, here, not less.
Any thoughts? If you're interested in sharing them, check out Siva's post and respond directly to him--or, if you'd like, cc me, and I'll cull from your responses to post a follow-up, here.
Update #2: Also @ Siva's weblog, notes from the audience at a recent talk he gave on fair use in peril. A snippet:
When friends call him about advice in such cases, [Siva], as a non-lawyer, gives two answers: a responsible one and an irresponsible one. The responsible answer is the one typically given by copyright lawyers: "it depends." The irresponsible answer is "What is your financial risk tolerance? Are you willing to strike a blow for fair use and academic freedom that might take about a decade?" He could understand, he said, when these non-tenured friends decided that publishing a scholarly book on time and in budget was more important than fighting for the greater good.
Posted Monday, March 10, 2003
The Balance Act
Later: Peter Suber on same: "The purpose of the Balance Act is to restore fair-use rights repealed by the DMCA and in that sense to restore balance to US copyright law. Jack Valenti, chairman of the MPAA, complains that Lofgren's bill "puts a dagger in the heart of the DMCA." If the essence of the DMCA is an imbalance favoring for publishers, then of course Valenti is exactly right, even if he has mistaken a description for an objection."
I Am Not A War Blogger. Nevertheless, I'm pointing to this.
Fourth stop: Tech's Love-Hate Relationship with the DMCA [Declan McCullagh @ CNET].
Posted Friday, March 7, 2003
My own (quick) take: this 100-percent right-headed manifesto is needed now more than ever. Here we have in plain language what's wrong with how various interest groups view the Internet--and much more importantly, how this way of looking (and consequently behaving) is poised to rob the Net of its value.
The ultimate goal, of course, is to get the message to those who need persuading. In its current form, the manifesto hits the sweet spot for those of us who already "get it." I'd like to see it hit that spot for those who don't. More specifically, I'd like to see it persuade someone in the position to do something about it.
There is much more to say, but I've unfortunately got to stop here for now. For those of you who haven't yet clicked on the links above, please do. Promise you won't regret it.
This is indeed a well-done piece of work. I am making some of my senior folks read this over the weekend. In addition, I will be using this as a litmus test for prospective ICANN board members in the ICANN reform process.A litmus test. I love it.
Update #2: Doc says something I'd been thinking--that comparing this manifesto to Cluetrain is understandable, but not quite right. It's not about waking up marketers to the Internet. It's about waking everyone up to the Internet--because so much of value will be lost if various interest groups succeed in having their way with it.
I'll stand aside, as Doc naturally puts it best: "[C]orporate codgers aren't only screwing their employees and stockholders, but citizens as well--buying votes and biasing regulators to serve an agenda that screws things up for everybody."
Posted Thursday, March 6, 2003
Derek Slater asks, "Is it just me, or does Frank manage to find EVERYTHING?"
It's not just you.
A few favorites from Frank:
photograph copyright © 1989-2003 by declan mccullagh. all rights reserved.
...to Ben Edelman for his work as an expert witness in the CIPA case that was heard this week before the US Supreme Court. Kudos, too, to EFF Pioneer award winner Seth Finkelstein, a friend-of-the-court in the case who yesterday took the time to gather for us an impressive motherlode of information about it. This is passion well spent.
Later #2: beSpacific's also got it going on.
Later #3: And James Tyre's really got it going on.
Later #4: This spot reserved for the going-on-ing-est. [A few readers tell me Dahlia Lithwick's Shelf-Censorship over @ Slate deserves the honor.]
Later #5: Ben himself, in an email just now:
Later #6: A disheartened Seth, via email:
I agree with Ben about the flaws in the government's argument. Moreover, they've evidently failed to recognize the architectural problems inherent in censorware. When we see reported, as from the Slate article, that "Scalia is of the opinion that libraries can and do censor what he calls 'garbage' all the time," it indicates that the Court is not grasping how much needs to be banned in order to censor the Internet.Later #7: Bob Frankston: "How can one help on this? I'm worried that the concept that bits have no intrinsic meaning and that words only make sense in context is simply not accessible to these people. I wonder if Mein Kampf is allowed? Is it illegal to tell children that there is no Santa Claus? What is a dirty picture anyway?"
Later #8: More from Ben @ John Palfrey's weblog.
Posted Wednesday, March 5, 2003
Broadcast Flag Broadcast II
As to the facts (m'am): The House Subcommittee on Courts, the Internet, and Intellectual Property will hold an oversight hearing on "Copyright Piracy Prevention and the Broadcast Flag" tomorrow (March 6) at 10:00 a.m. EST. A live audio feed will be available here--but only at the date and time of the meeting.
Many thanks to Bret Fausett for the email heads-up.
Later #2 (March 7): Public Knowledge [PDF], quoted RE the broadcast flag in Declan's CNET piece on the hearing: "The astonishing lack of evidence behind claims of any current or imminent problem facing copyrighted high-quality digital works transmitted over airwaves gives us pause...We have always believed the case for the broadcast flag was thin, but have been amazed to discover that the evidence comes close to being nonexistent."
Later #3: Spill Over Effects Between Media [LawMeme].
Is it Art or is it Prescience?
Yep, I'm back. But to steal Halley's cliché, not yet back in the saddle. As Frank describes, it's not debilitating--instead, it's as though I'm thinking through pea soup. My synapses would rather not speak to one another.
I remain capable, however, of cutting and pasting from the description of a newly unveiled project that my office mate--the sharp-as-a-tack (what cliché? where?), slyly humorous Berkman Fellow Blythe Holden--is leading: Digital Media in Cyberspace. The project aims high: it will produce a foundational paper identifying the critical features of technological, economic, and legal change that have resulted in our current situation vis-à-vis digital media. From there, it will "propose and critically analyze potential legal and business models for the future," with the goal of "balancing the interests of consumers, artists and entertainment companies, and technology manufacturers."
Yeah, that high.
Following is an intriguing snippet from the project description (emphasis, mine):
The cultural importance of media, and the rapid development of media technologies, make this pursuit imperative--and all the more so because of how far we are from a solution. Lawmakers, artists, consumers, and technologists all want the distribution of movies, music, and more through the Internet. The questions are manifold: How? How can we control piracy and protect consumers' rights? Should the government regulate digital media, or should the market be left alone? Must technology inventors be accountable to content creators? While the answers to these types of questions have been pondered, the future of digital media distribution remains uncertain.
Before I slip back into the soup, a handful of must-see news items--on the off-chance that you haven't yet seen them:
Later (March 6): Kevin Marks: "The Harvard 'Digital Media in Cyberspace' project may be promising, but its premises concern me."
Posted Tuesday, March 4, 2003
What's Not to Love
Thank you, Denise. Now we need one for you.
On a more personal note, I'm unfortunately not feeling well today and am leaving now to go home & recover. I recommend that you check out the Weblogs at Harvard aggregator, where Dave has begun to import my blawg wish list, a handful at a time.
Posted Sunday, March 2, 2003
I'm still picking through the marvelously copious "microcontent" reportage on both the Berkeley & Stanford conferences. In the meantime, here's Amy Harmon's NYT piece--a bit short, but nevertheless (& as always) worth the read.
Later (March 3): Sarah Stirland: "My favorite dismissive quote on the commons model during the conference: 'This isn't just about peace, love and vegetables.'"
Posted Friday, February 28, 2003
Berkeley DRM Conference Notes
...have been posted.
Normally, I'd stick around to write more, but today I'm under the gun. In addition to watching bIPlog, I recommend that you keep an eye on Derek Slater, who has got some good linking & thinking going on.
Update: Wow, this is getting good.
Update #2 (Sunday, March 2):
Bonus #2: This looks interesting--in particular the tag line, which promises technology news for "librarians, lawyers & research geeks." Some of my favorite people.
Posted Thursday, February 27, 2003
...has been brought to you by patented technology. Or so claims Paul Heckel, who according to the article, holds patents that cover "technologies that allow websites to display the headline and abstract of a news story with a link to another file that displays the entire story."
Early last month, Mr. Heckle (er, Heckel) sued a dozen small newspapers for infringement--and has reportedly sent a total of 60 cease-and-desist letters to date.
I'm hoping that those who received the C&Ds pay a visit here.
(Link thanks to Dana.)
Later: A still more twisted patent: "A child adoption proceeding is conducted in the form of a television game show and online media event, wherein couples compete against each other to win legal custody of the child."
Later #2: Dana uncovers more stupid patent tricks.
Later #3: Cory Doctorow @ BoingBoing: Nader on patent suckitude.
Drinking from the Fire Hydrant
Whoa. Way too much going on today. Following are just a few spurts; the nature of today's beast is that there will be (much) more to come.
Joseph Reagle, in a brilliant rant on patent madness: "[The] future of innovation is [being] displaced by a malignant growth fed by a downward spiral of greed (those that never innovate, only sue) and fear (those that don't like the system but feel compelled to participate as a defense)."
I find myself deeply puzzled by the anger and angst that some of my most respected blogging friends have expressed lately regarding creative commons licenses in general, and Movable Type's implementation of those licenses as an option in version 2.6 in particular.A Man with a Ph.D., in his new Corante weblog column Living Code: Biology & Information: "Collaboration and openness create knowledge from information, and one of the things I'll be doing here is looking at the ways that these principles help us gain a better understanding of the natural world and what we can do to build upon it in constructive and conscientious ways."
And from the more traditional news outlets, check out:
Number 9...Number 9
I'm not sure how the new Daypop word burst system works. All I know is that I'm at number 9, discussing not discussing my navel, or my cat.
Posted Wednesday, February 26, 2003
Give This Guy a (Bigger) Megaphone II
Bryan Alexander, associate director of the Center for Educational Technology, tells me he will be joining bIPlog's Mary Hodder in blogging The Law and Technology of DRM conference that starts tomorrow.
Bryan writes at a number of weblogs, but will pass along the URL(s) once he gets going. Thanks, Bryan!
Later: Speaking of conferences, Darin Sands of the Harvard Journal of Law & Technology (or as we like to say, JOLT), writes to say that this year's spring conference, which takes place on March 15, will explore a topic close to my heart: Copyright & Fair Use: Present and Future Prospects. Among the speakers: Siva, JZ, Gigi Sohn and Dan Gillmor.
Yep, I'm blogging it.
Later: Berkman's John Palfrey on the ABA piece: "I guess I think blogs may offer more to the academic community--with time at less of a premium--than to the hyper-pressured legal community. I'd be interested to be proven wrong, though."
Later #2: Gee, that was fast. The community aggregator is now in the process of blawgification.
Posted Monday, February 24, 2003
Why We Need The Eldred Act
Later: Among the speakers is Judge Alex Kozinski, of the Ninth Circuit Court of Appeals. This is the man who in Mattel v. MCA Records so very memorably advised the parties "to chill." Just one more reason I wish I could be there.
Later #2 (February 25): Dave, to CNET, on his role @ Harvard: "I will be an evangelist and an educator and a scholar. I hope I'm here to learn as much as I am to teach."
Later #3: On the topic of weblogs & their uses, Dana Blankenhorn has hit the nail on the head: "Blogging is a tool, like word processing or HTML. (It combines both, along with others.) Time will tell what it really is, what it ends up being. But to say it's anything, even journalism (the career I revere) is to limit it. And it shouldn't be limited. Because it belongs to you."
Wait a Tic...
Declan McCullagh has a new piece certain to stir the pot: Perspective: Get Ready to be Fleeced. Declan claims that "both sides" of the copyfight are wrong. How so? Each has resorted to the ultimate libertarian no-no: asking Congress to enact legislation to protect their interests rather than trusting the all-knowing, all-seeing invisible hand of the market. Writes Declan:
Unhappy with the current reach of the law, the lobbyists and politicians believe that more restrictions levied on US companies are necessary. Their target: The consumer electronics industry, which is already suffering through America's economic malaise and, conceivably, companies that sell music and video-playing software as well.
So, if the "fair use" crowd ought refrain from fighting legislative fire with fire, what should it do instead?:
[As] tempting as it may be, the solution is not to follow Hollings' lead and use the political process to demand the kind of regulations that "fair use" advocates think are appropriate. The right thing to do is try to repeal the worst sections of those three laws [the DMCA, the NET act and the CTEA]--hey, it could eventually happen--and then leave Congress out of it.Hmmm. Anyone else find the "hey--it could eventually happen" scenario/argument weak? Especially when Valenti & co. have absolutely no incentive to rein in their incredibly successful lobbying activities?
Or to put it another way: Will the invisible hand plus an uphill battle--or many--to repeal sections of current & future dinosaur-industry backed laws truly be enough to protect fair use and innovation in the digital sphere? Or is this simply wishful (libertarian) thinking?
Valenti's case might make some sense to honorable people if he worked for a moral industry. But it's built around a lie, which he repeats often--that we're taking money out of the mouths of artists if we don't pay for the music we use. We've already figured out that almost no money goes to the artists. If you reform your industry, your moral appeal might have some weight with honest people.Later: Brother Kling, responding to the above question RE the invisible hand, opines that "the Geeks will win. They will treat the Suits as damage, and route around them." I crave further elucidation. Do you mean, Brother Kling, that no matter what Congress or The Law says, now or in the future, an Internet environment that fosters innovation will persist--and that therefore the Geeks (& their creations) will win?
Later #2: Despite Hylton's note, I can't say I disagree with the argument that "Ten years from now, today's musicians will look back on this period as a golden age for compensation." I can't say that I agree with it, either. I just don't know. As for Dave, he did say that in the present situation, the music industry has no right to the moral high ground with regard to compensating artists--but I don't know that he'd disagree (or agree) with Brother Kling, either.
Later #3: J.D. Lasica has a go at Declan's piece:
I admire Declan for not following the herd and staking out independent positions (and his political slant is popular with the anti-government libertarian crowd). But even if Congress follows his advice and repeals the most egregious parts of the DMCA and other federal copyright laws--which it won't--that still leaves private industry free to bamboozle and hoodwink millions of unsuspecting customers with crappy products, laden with DRM, that won't play on their computers, on their portable music devices, or in other ways. The great Invisible Hand of the Marketplace won't solve that. Information will. If there's no market incentive for the record lables to mark their DRM CDs as defective--and there isn't--why would they?Later #4: The text of Valenti's speech, courtesy of Politech.
Posted Friday, February 21, 2003
Give This Guy a (Bigger) Megaphone
Speaking of conferences, here's a bonus for Balkinization readers presently in Cambridge: Jack Balkin will be speaking today at 5:00 p.m. in Austin North here on the Harvard Law School campus. The occasion? A conference by Harvard's chapter of the American Consitution Society, entitled What is Liberalism? A Multiplicity of Voices. Sounds fascinating.
Just Say No
[The] term of software copyright is effectively perpetual; and trade secrets tend to hide, not spread, knowledge. But if these forms of protection are inadequate or misinformed, then the solution is to find a form that better fits software. No one really believes that patents are well designed for this type of invention. Yet no government has adequately explored the alternatives.
Enterprise. Knowledge Management.
Warning: This is a blog about blogging, something that has earned itself a very bad rap indeed. I contend, however, that it's really about communicating, conversing, teaching and learning--and further, involves neither my navel nor my cat. You may disagree, as is certainly your right. But you have been fairly warned.
Without further ado, excerpts from two pieces that explore "the interactive conversation space":
Jonathan--I'm also evangelizing to some pretty smart people who say "blogs don't matter" for various reasons. They don't see that it's not blogging that matters, that's just the text mode first step of the personal CMS hypermedia communicator thingy (which could use a more elegant name).Also working on the evangelizing/facilitating disruptive/emergent technologies issue, but in the context of education: Hugh Blackmer (via Seb's Open Research):
Each campus seems to have a few people whom others identify as visionaries and pioneers, but their niches are not predictable: sometimes they are professors, sometimes librarians, sometimes IT or computing people...Some are lone wolves, but many pursue collaborations, often across administrative boundaries. They share a common problem: where can they turn for support for their efforts?
Posted Thursday, February 20, 2003
[A] fundamental precondition of technological solutions is the ability to force the other guy or gal to play by your technological rules. Setting the do-not-forward bit on your email is useless unless email clients respect that bit. Therefore: Palladium. Therefore: the broadcast flag. Therefore: certificate authorities. Therefore: the IPv6 Forum. Therefore: the DVD Content Control Association. All of these institutions are devoted to the widespread distribution of compliance. They encourage and/or coerce the adoption of their preferred technologies in many different ways, but the underlying idea is always the same: create a forum within which certain rules of behavior are enforced at the architectural level.Running out the door? Print it out & take it with you.
Larry Lessig gave his poetry slam on copyright. Key points:
As a complement to Frank's excellent pointers, the following quotables:
Raffi Krikorian, in a reply comment to the FCC that lays to rest claims by the MPAA that the broadcast flag is necessary because pirates would otherwise be able easily to capture digital television broadcasts and redistribute them via the Internet:
In this document, I have shown that the MPAA's view of the capabilities of current and foreseeable networking technologies is misinformed; they have provided a series of reasons to argue that their intellectual property will be distributed more readily as a result of ATSC terrestrial broadcast service than it is presently today, and I have stated why, in my opinion, I deem this to be incorrect and actually impossible. I conclude that there is no practical evidence that an ATSC broadcast flag mandate would address a real problem.Larry Lessig on what it will take to persuade Congress to adopt copyright legislation that promotes rather than stifles creativity: "Never in our history have fewer been in a position to control more of the creative potential of our society than now...We have to buy them off, so they don't break the Internet in the interim."
The first sentence of the concluding paragraph states, "Some legal pundits will question whether an idea that downplays the profit motive will ever be widely embraced."Jenny Levine, deconstructing an article on the recording firms that have asked to scan computers at the University of Melbourne, because "public institutions such as universities and libraries [are] the biggest repositories of unlawful sound recordings."
The sad thing is that the record labels don't have the slightest clue how libraries operate, and they obviously have no interest in learning the truth. Most libraries lock down their computers so that patrons can't make changes to the operating system or programs. If they let you do any downloading at all, it's usually just to a floppy. Most public libraries are not yet at the level where they would offer CD burners on the computers and academic libraries aren't that much further ahead, so good luck trying to fit those MP3s on a 3-1/2" floppy!Ben Edelman, in his study released yesterday on the over-blocking of websites due to shared IP addresses: "[Under] a 2002 law [PDF], the Attorney General of Pennsylvania has recently begun to order ISPs doing business in that state to 'disable access' to designated sites found to offer child pornography; most ISPs receiving such orders reportedly use router-level filtering to disable access to the affected IP address, even though that IP's server might contain scores of additional websites and thousands of specific web pages without child pornography." [Bonus: Declan McCullagh's piece on the study; a Washington Post piece on the CDT fight against blocking in Pennsylvania. Update: CDT Policy Post.]
Jonathan--When did you discover blogs?
Posted Wednesday, February 19, 2003
Stuff I Missed
...but that you shouldn't:
On this, the final day during this round of rulemaking that we can submit requests to the Library of Congress for an exemption to the DMCA, an observation by Seth Finkelstein, one of the few who has been successful at winning one:
I'm debating how much I can let loose and say: "This process is not designed for normal people. It's just not. It may work for Washington wonks. But non-politicos simply don't have the time or the expertise in order to sit down and read through pages of requirements, and make lawyer-like arguments."Later: Good news from Seth: We get a snow day.
Universe in a Teaspoon
This explains why it's been quiet here for a bit: I've been offline since Sunday. Which gave me just enough time to read Leaving Reality Behind: Etoy Vs Etoys.Com & Other Battles to Control Cyberspace--a very clever book that despite its fairly straightforward journalistic style can be read on a number of different levels. As a brief intro, following are two:
Level one: The book is a retelling of one of the most widely discussed domain name trademark disputes to date: eToys.com v. etoy.
So what happened? In 1999, online toy retailer eToys.com won an injunction from a California court to shut down etoy.com--a website where an award-winning European art collective had featured electronic art projects subverting or criticizing the behavior of corporations. Many in the Internet community saw the decision as a frightening indication that the courts regard the right to sell as outranking the right to speak freely on the Internet.
etoy fought back--not just in the courts, but on another front: the Internet itself. Using a number of tools native to the community--electonic "disturbance," email campaigns, etc.--etoy managed to stir up an astonishing amount of bad publicity. And with its share value slipping precipitously, eToys.com offered to settle. Later on, it succumbed to dotcom meltdown & a buyout.
etoy, meanwhile, lives.
Level two: The eToys.com v. etoy narrative tells a much larger, ongoing story: the battle between commercial and non-commercial interests in shaping the Internet. This includes the privitization of the domain system, the formation of ICANN, the ensuing machinations behind the scenes and before Congress, etc., etc. It's the universe in a teaspoon--the legal/technical/political macrocosm of the Internet's developmental stages, as seen in the microcosm of a single dispute.
Bonus #2: Bret Fausett's been reading, too: "[The book] has a number of interesting passages on the creation of ICANN and the early effort to get Network Solutions to heel, with background and quotes from Ira Magaziner, Don Telage and Becky Burr."
Post script: Many thanks to Adam Wishart for sending me the book.
Posted Sunday, February 16, 2003
Posted Friday, February 14, 2003
Smart Mobs II
A Copyfight reader (via email): "Why don't you call the Weblogs at Harvard blog 'Smart Mobs'? Oh, right...already taken."
As many of you may have guessed, I had trouble with my blogging software yesterday and hence, no posts. Today, though, it looks as though we're A-ok.
Much to catch up on. Much.
Yes, of course it includes our Mr. Jack Valenti.
Bonus: Chilling Effects on fan fiction.
Bonus #2: From early in January, And the Winner Is by Steve Gillmor:
2003'S CHIEF disruptive technologist is a) Jack Valenti, b) Attorney General John Ashcroft, or c) Rob Lowe. OK, Rob Lowe is a bit harsh, letting a little thing such as his career get in the way of my fantasy alternate universe where Democrats roam the West Wing and Florida never happened.Bonus #3: Another chestnut from a while back, sent to me after Dave's First Blog Meeting @ Harvard by attendee & erstwhile Berkman Fellow Joseph Reagle: Propaganda (Part 3). Responding to a Michael Eisner editorial on how Abraham Lincoln would have "loved the Internet" but hated the "pirates who commandeer its high-speed circuits to steal," Reagle writes:
Eisner claims, "It is as American as the apple pie that one may not take off a neighbour's kitchen ledge." I respond that ideas are not apple pies. They are the recipes of civil democracy, science, progress, and happiness that should be freely exchanged and improved upon.Bonus #4: Finally, from our About page at the Weblogs at Harvard site, in case you missed it below (emphasis, mine): "In this context open means we're going to share what we learn, so other educational institutions can learn from our experience. We hope others will do the same, that the spirit of the Web