About this weblog

Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Copyfight's archives are available here.

About the author

Donna Wentworth is a Web Writer/Activist for the Electronic Frontier Foundation (EFF) and an affiliate of the Berkman Center for Internet & Society at Harvard Law School, where she was among the first staff members. At EFF, Donna is editor of EFFector, an electronic newsletter that goes out to 50,000 people every week. She has spoken about weblogs and why they matter at Yale (Revenge of the Blog) and Berkeley (Weblogs, Information & Society).

Disclaimer: The opinions expressed here are my own and not EFF's; please send any comments, suggestions or reactions to me.


Berkman @ Harvard
Chilling Effects
CIS @ Stanford
Creative Commons
Free Software Foundation
Global Internet Proj.
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office

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Posted Monday, March 22, 2004

Copyfight--the Expanded Edition

Big 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):

For many of you, these folks need no introduction. They're the people doing the real-world work in the battle to restore traditional balance to intellectual property law--at the front lines of what I've been calling "the copyfight."

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?

p2p_VCLMy 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.
Like hardware levies? Add them in. Then, please share what you rip-mix-burn."

Very, very cool. Thanks, Ren.

Posted Friday, March 19, 2004

FCC Moves to Regulate Hate Speech?

Ernest Miller has (yet) another must-read today--a lengthy analysis of the FCC decision (PDF) on the Bono/Golden Globes "f-word" incident (see the FCC press release [PDF]).

The news in a nutshell? In the wake of Janet Jackson's "wardrobe malfunction," the FCC has reversed its previous position on Bono's use of the word "fucking"--as in "this is really, really fucking brilliant." The use has now offically been deemed "profane."

Writes Ernie:

Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression.


"Profane" can't be about blasphemy, that would raise all sorts of freedom of religion issues, but it has to be distinct from "indecent." I think that leaves hate speech. Seems to me the FCC has decided that it wants to regulate the broadcast of hate speech.

Read the whole thing.

Xeni Jardin @ BoingBoing: "Last night in LA, I went to a big fucking party thrown by the fucking LA Press Club to show some fucking support for Sandra Fucking Tsing Loh, snarky host of "The Loh Life." The radio humorist was abruptly sacked from KCRW after her fucking engineer failed to bleep a certain fucking four letter word from a fucked-out taped comedic monologue. Fuck!"

Later: Jim Tyre (via email): "It's not a good ruling, but: (1) it was based primarily on indecency, profanity was almost an afterthought; and (2) there was no fine, though the FCC was sending a message, as it were, about what it might do in the future."

Trump Now in the IP Biz

Donald Trump is seeking ownership of a brand new property. Nope, not another skyscraper/casino. He wants the catchphrase from his new hit show, The Apprentice. That's right--Trump wants to own the words "You're Fired."

ABC News reports that Trump is looking to "copyright" the phrase, which of course you can't do. You can, however, trademark a phrase, and in this Trump may very well succeed.

The Reuters piece includes a rare touch of evidently borrowed humor: "Trump might have competition: A search of the PTO's database revealed that three other applications for 'You're fired' have been filed. [Wait a beat.] No applications appear to have been filed for 'You're outsourced,' however."

Marty Schwimmer: "You're Fired? Where are the catchphrases of yesteryear? Dyn-o-mite? You Look Fabulous? Two Wild and Crazy Guys? Aaaa-yyy, the Fonz? Keep on Truckin'? Hasta la Vista Baby? Cowabunga? Go Ahead, Make My Day? Where's the Beef? Kiss My Grits? Isn't that Special?

A Kinder and Gentler Nation?"

Later #2: Mary Hodder: "I think Fuck may still be available [for trademark] too. Or at least Fuck the FCC."

Posted Thursday, March 18, 2004

Ernest on CA Anti-Piracy Bills

A marvelously thorough smackdown of the two terribly misquided anti-"piracy" bills introduced before the California legislature. The bills would require anyone who knowingly disseminates commercial recorded or audiovisual material over the Internet to mark it with his or her name and address or face a possible one-year prison sentence. It's a very, very bad idea.

Writes Ernie:

EFF notes the pernicious effects on children's privacy...There are many more problems with this bill as well. [...]

The bill strips anonymity even when people are engaging in constitutionally protected activities. On this basis alone, I believe it is clearly unconstitutional under the First Amendment. [...]

Even worse, there is no exception for permission of the copyright holder. So, if I record a song and post it under a Creative Commons license that permits redistribution but reserves commercial use rights, you can go to jail for redistributing it. I mean, really, what more can be said about such an overbroad bill?

We need to have a "true names" bill for politicians. By all rights, State Sen. Kevin Murray should start calling himself State Sen. Hollywood Sycophant.

More from Tech News World.

Siva on Free Culture's "Scholarly Partner"

Siva Vaidhyanathan has a question of interest to copyfighters of the scholarly persuasion: What should we call the emerging field of study that recognizes the architectural element of expression in the networked environment? Or, as Siva puts it, what do we call the "scholarly partner" to the Free Culture movement?

Siva's trial balloon is "Critical Information Studies," a term he suggests might encompass work by economists, communication scholars, lawyers, computer scientists, librarians and others to interrogate the "structures, functions, habits, norms, and practices that guide global flows of information and cultural elements."

Central to this field of inquiry, writes Siva, is a concept many of us have begun to call "semiotic democracy," or the ability of citizens to "employ the signs and symbols ubiquitous in their environments in manners that they determine."

To my view, Siva's term works rather well--I've seen "critical media studies," but that doesn't connote information/networked environments specifically.

What do you think? If you have a thought or two to share, do let me or Siva know.

Posted Tuesday, March 16, 2004

Score One for the Public Domain

Kudos to the talented group of freedom fighters @ Stanford's Center for Internet and Society for scoring this important victory in the ongoing Golan v. Ashcroft case.

Help a Library Win a Copyfight

[This post title pilfered directly from BoingBoing's open pockets. Or did Cory steal it from me? Dang. This IP stuff is so confusing.]

The wonderful Jenny Levine, a.k.a. The Shifted Librarian, has the full scoop. Snippet:

So here we have the little Library that could and did (David) that can't get the attention of Warner Brothers (Goliath) just so they can show the fantastic video they did for their staff in-service day (and let me tell you, the video TOTALLY ROCKS!). Would SJCPL make a single dime off it if they post it online? No. In fact, it would probably cost them loads in bandwidth.

Posted Monday, March 15, 2004

Stupid White Men and Semiotic Democracy

Siva Vaidhyanathan, analyzing today's NYT piece on the attempt by the publishers of Michael Moore's Stupid White Men and Other Excuses for the Sorry State of Our Nation to force the publishers of How to Get Stupid White Men Out of Office to change the title of the book:

"The problem here is not just one of rabid efforts of protection. It's also a matter of the conflation between these two distinct areas of law that we unfortunately (and harmfully) combine under the meaningless phrase 'intellectual property.'

After all, 'intellectual property' is neither.

Here is the problem. When a lawyer trains herself in trademark law, she gets brainwashed to do everything to prevent 'dilution' of the mark, inflation of its use, and deflation of its market value.

When misapplied to copyright, this principle of 'dilution' has horrible consequences: squelching speech, criticism, and what we might call 'semiotic democracy.'"

Michael Moore himself, quoted in the piece: "I bumped into somebody that was working on the project a few months ago and said it is important that the public not think that it was a book by me. But I am flattered that somebody would take something that I did and use it to create change."

CA Attorney General = MPAA Sock Puppet?

Xeni Jardin of BoingBoing fame has a Wired piece this morning suggesting that California Attorney General Bill Lockyer is using a peer-to-fear talking points memo supplied by the Motion Picture Association of America. The tip-off? A smoking MS Word document tellingly marked with MPAA metadata and invective.

The document, purportedly a letter from Lockyer to a number of P2P companies, contains a not-so-veiled threat that unless they make more of an effort to warn users about the "legal and personal" risks of using P2P networks, the companies could face charges of deceptive trade practices:

It is widely recognized that P2P file-sharing software currently is used almost exclusively to disseminate pornography, and to illegally trade copyrighted music, movies, software and video games. ...A failure to prominently and adequately warn consumers, particularly when you advertise and sell paid versions of your software, could constitute, at the very least, a deceptive trade practice.

Fred von Lohmann, quoted in the piece, offers the obvious rebuttal: "The principle has no limit--you can use Internet Explorer to violate the law or unintentionally access pornography, so does [Lockyer] want to suggest that Microsoft is also breaking the law? Why stop at the Internet--should Ford be held liable for failing to warn drivers that exceeding the speed limit will expose them to citations?"

P2P United, meanwhile, suggests--facetiously?--that the letter is a fake: "The letter contains so many factual errors concerning peer-to-peer technology and the allegedly disproportionate 'danger' that it poses to the public relative to other popular means of accessing and searching the Internet (e.g., Google or AOL) that it would seem unlikely to have been produced by your office."

Later: Jason Schultz: "[The letter is] the more disturbing because [it] threatens the P2P companies with lawsuits that would be funded by state tax dollars. It's one thing for the MPAA to sue P2P companies on their own dime. To make the public foot the bill on behalf of Hollywood's millionaires doesn't seem to me to be in the public's interest."

Posted Thursday, March 11, 2004

Where It's At

As Derek Slater says, So many links, not enough time.

For those similarly time-pressed, here's terrific one-stop shopping for debate over EFF's white paper on collective licensing, from the unstoppable Ernest Miller.

Posted Tuesday, March 9, 2004

EFF Joins Suit to Stop Broadcast Flag

Fred von Lohmann in an EFF media release about the new lawsuit to stop the broadcast flag: "The FCC's digital broadcast television mandate is a step in the wrong direction because it would make digital television cost more and do less, undermining innovation, fair use, and competition.

The FCC overstepped its bounds, unduly restricting consumers and manufacturers when it issued its broadcast flag ruling."

Later (March 10): ZDNet: "The broadcast flag controversy, while far less visible than the debates over peer-to-peer networks, is one of the key issues in the passage of traditional entertainment companies into the digital world."

Victory for Fair Use--Priceless

Jason Schultz: "Back in 2000, Ralph Nader ran a bunch of ads critiquing the corporate interests behind the Bush and Gore campaigns. To make his point, he used the style and some of ideas behind MasterCard's 'Priceless' ad campaign--specifically calling out the dollar amounts that corporate interests paid to candidates to secure their positions on the issues. [...]

Today, after four years of discovery battles and summary judgment briefing, the trial court ruled that Nader's use was, in fact, fair."

Food for Thought

From Brother ErnestVictory for EFF Creates Problems for EFF's Filesharing Solution.

Posted Monday, March 8, 2004

Notable + Quotable

Michael Geist, proposing that Canada take the lead in using blanket licenses to resolve the conflict over peer-to-peer systems (hyperlink, mine): "Unlike the U.S., which has more limited experience with collective licensing, the Canadian marketplace has a much richer experience with such approaches and could provide a fertile ground for a national pilot project to examine whether a peer-to-peer blanket licence is a realistic alternative. Moreover, last week the Supreme Court of Canada sent a strong message to the copyright community in a landmark decision in which it made it clear that it would interpret copyright law in a manner that balanced the interests of both creators and users."

Michael Franti of the hip-hop group Spearhead, on the controversial proposed European Union Intellectual Property Rights Enforcement Directive (EUPR): "Prosecuting fans who share music files in order to prevent piracy is like outlawing sex to prevent pregnancy. [...]

Fans, labels and artists alike are going to need to make changes in the way we buy, sell and market music, but the draconian nature of these laws is more of an attack on civil liberties than it is a solution to the changing times we are living in."

Nancie Marzulla, president of the U.S.-based Defenders of Property Rights (emphasis, mine): "How can we translate the kind of property protections that exist in this country to other nations--especially nations that exist under Communist regimes, such as China? Negotiating Free Trade Agreements with strong intellectual property rights protections is a good start; so too is helping these countries to amend their Constitutions to include provisions protecting private property rights, such as China has recently indicated it is doing."

George Scriban, on the article drawn from Larry Lessig's next book that appears in this month's Wired: "Movies, TV, cable, radio, in addition to making liberal use of the public domain, are all the stepchildren of piracy, having appropriated existing content for their own ends without permission. As is so often the case when we move from revolution to institution, once the peasants have occupied the castle they pull up the drawbridge behind them."

Brad Templeton, on the push to develop intermediary control in peer-to-peer systems: "It's sad that the RIAA's crusade will cause people to modify P2P networks into non-P2P, and gain the RIAA nothing."

Derek Slater, reflecting upon last week's Digital Music Forum: "I didn't understand why the third panel 'The Death of the CD?' had a question mark in its title--isn't it somewhat obvious that physical media will die? Yes, some people will still buy physical goods, and estimates do vary as to when digital downloads will supplant CDs. But, I thought, no one really looks at the growth of P2P and the online music services; the great cost savings possible online; and digital media and technology's flexibility, and thinks that CDs are here to stay for a long while, right?"

Posted Friday, March 5, 2004

Voluntary Collective Licensing: the College Years

Edward Felten, on EFF's proposal for resolving the conflict over peer-to-peer file sharing:

It seems to me that if the EFF plan is going to happen, it will start with a deal between the RIAA and a university, in which the university creates a fund to pay out to copyright holders, in exchange for (a) free rein to do anything at all with copyrighted music within the campus (but not to distribute it outside the campus), and (b) permission for anyone, either on the campus or off, to transmit music to people on campus.


This is a much better deal for universities than a Penn State-style transaction, in which a university buys its students subscriptions to a limited music service. An EFF-style license allows unlimited use of music in courses, and it allows students and faculty to experiment with new uses of music. It also allows cross-university sharing and collaboration on music projects, if multiple universities join.

Later: Ernest Miller, suggesting that employers might take advantage of an EFF-like solution to enable file swapping by the water cooler: "I can imagine many companies paying for filesharing licenses for their employees in bulk."

Cato on Drawing Lines in Copyright Law

If you know Cato, you may feel like you've already read this new piece by Adam Thierer on the proper approach to resolving conflicts over intellectual property on the Net. He advocates less "ham-handed" legislation, more "common law resolutions"--even to the point of (semi-) endorsing the RIAA's litigation campaign:

[If] you're a broadcaster or a movie studio and discover that a handful of individuals are redistributing your products without permission or compensation, why not just sue them directly and avoid all this regulatory nonsense? No good answer was provided. What makes this all the more surprising is that such a model already existed in the lawsuits that the Recording Industry Association of America (RIAA) was filing against individuals accused of widespread copyright infringement.
It nevertheless warms the cockles of my heart to hear someone besides EFF say that "[If] millions of average movie lovers like me are considered criminals for merely copying a few of their favorite movies or individual scenes onto a different disc, then something has gone horribly wrong with copyright law in America."

The article--including brief discussion of the broadcast flag mandate and the MGM v. 321 Studios decision--here.

Later: Dan Gillmor, whose cockles were likewise warmed, is predictably forced to tangle with anti-Cato trolls.

Posted Thursday, March 4, 2004

User Rights Aren't Loopholes

University of Ottawa law professor Michael Geist, the man behind the what is perhaps the single most valuable email list on cyberlaw issues, discussing a decision today by Canada's Supreme Court that demonstrates refreshing copyright sanity:

As Professor Vaver, supra, has explained, at p. 171: User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.


In words that may reverberate into the online environment, the court also concludes that a person does not authorize copyright infringement by authorizing the mere use of equipment (such as photocopiers) that could be used to infringe copyright. In fact, courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law.

More from Professor Geist @ Dave Farber's IP list.

Later (March 5): Plain language translation of the ruling by a reader @ Lessig blog: "Photocopiers don't infringe people; people infringe people."

What Bunner Means--Or Doesn't

Doug Simpson of Unintended Consequences just sent me a link to his analysis of the recent decision (PDF) in DVD-CCA v. Bunner, in which he concludes that:

  • It does not protect one who is the first to crack a secret and then misappropriate or share it.
  • It does not protect those who share misappropriated secrets in a closed community.
  • It does not protect one from potential liability under laws other than the Uniform Trade Secret Act (UTSA).
Check out the complete analysis here.

Posted Tuesday, March 2, 2004


Here's my link to the many-times linked Larry Lessig post mortem on Eldred.

Posted Monday, March 1, 2004

Doublespeak Quote of the Day

MPAA head Jack Valenti: "If you buy a DVD you have a copy. If you want a backup copy you buy another one."

(Via Dr. Wex @ Blogbook.)

Later: 321 Studios is launching a week-long campaign today to raise awareness about fair uses of digital media and to encourage people to stand up for it. Sez Wendy Seltzer in an EFF advisory: "The public's rights to fair use of copyrighted works should not disappear in the face of technological restrictions. To bring back copyright's balance, we encourage individuals to write to Congress and the entertainment industry about their expectations when purchasing movies and other media."

Later #2: The San Jose Mercury News on the 321 decision: What Copyrights?

Sure, you can hold a video camera up to the TV and make a poor-quality duplicate of a DVD. Or, with an eBook, write out a copy longhand. To the judges, that would satisfy fair use: There's no constitutional guarantee, they said, to make perfect duplicate copies. Such a narrow view, while pleasing copyright holders, denies consumers huge benefits of digital technologies. Movie studies and recording companies can write software protections that permit personal copies and other fair uses; they simply choose not to, and Congress, by banning circumvention technologies, has let them get away with it.
(Via Frank Field.)

IP v. Property, Bits v. Atoms

Just after I included a post by Cardozo cyberlaw professor Susan Crawford in my latest Notable + Quotable, I found her sounding the same themes with regard to copyright and innovation in this NYT piece: "Bits are not the same as atoms. We need to reframe the legal discussion to treat the differences of bits and atoms in a more thoughtful way."

Here's the report [PDF] that the NYT piece profiles; more from Professor Crawford, who co-authored it, here.

Later: Ernest Miller, responding to Professor Crawford's Bits, Atoms, and Beethoven:

We aren't at the beginning of an era where we numbly accept content. The beginning of that era was when Edison first set stylus to wax cylinder, the beginning of the era of mechanical reproduction. It was an era of unchangeable physical format that could only be produced and distributed efficiently en masse. That era is dying.

After less than a century of dominance, I believe that people are waking up from the consumerist coma induced by the era of mechanical reproduction. What we are seeing is the birth of a new era, an era of empowerment, where people are both consumers and producers of content, a wonderful bricolage of both old and new.

Later #2: Mary Hodder culls excerpts from the co-authored report.

Posted Sunday, February 29, 2004

Creativity Always Builds on the Past

Creative Commons held a contest to produce a short video that clearly communicates its mission: to give creators a legal, hassle-free way to introduce shades of grey to an otherwise control-all-or-control-nothing, black-and-white copyright regime.

Check out Justin Cone's winning entry: Building on the Past. Not only does it effectively convey CC's message, the medium has an appropriately central role: the video uses material from the Prelinger Archives, "re-mixed" to produce something wonderfully fresh.

(Via Matt Haughey at Creative Commons.)

Notable + Quotable

A member of Mount and Stoelker law firm, on the size of statutory damages authorized by the Copyright Act: "Hmmm...what did Disney pay to get that?" (Via Dan Fingerman.)

Cardozo cyberlaw professor Susan Crawford: "[During] the last 25 years or so we've adopted this prayerful, pure...approach to 'classical' music. We see and hear these works as unchanging and unchangeable. But that's not what they are--they're not frozen in amber, they're not things we're supposed to respect in the abstract. They change with the times.

Maybe (here's the tie-in to innovation and intellectual property) we're in an era in which we're beginning numbly to accept that 'content' is just provided to us... [But music] isn't wallpaper, and you don't 'acquire' concerts. You experience them."

Eben Moglen, via Frank Field via Groklaw: "The fundamental belief in fairness here is not that it is fair that things should be free. It is that it is fair that we should be free and that our thoughts should be free, that we should be able to know as much about the world in which we live as possible, and that we should be as little as possible captive to other people's knowledge, beyond the appeal to our own understanding and initiative. [...]

If you think about it, it sounds rather like a commitment to encourage the diffusion of science and the useful arts by promoting access to knowledge."

[More on the Harvard speech from which the above is an excerpt, by the Berkman Center's Mary Bridges.]

Peter Hirtle, in a piece @ Stanford University's library website that makes explicit the role of personal and library copying in preserving our shared culture (or to put it another way, why we need an anarchist in the library): "Good preservation practice has often existed in a legal gray area. Libraries usually made three copies when microfilming long before the law gave explicit permission for the practice, and many radio programs have been saved only because individuals systematically taped them from the air, without the permission of the copyright owner.[31] Digital preservation resides in an even murkier legal gray area because of the fundamental need to copy digital information (one of the exclusive rights of the copyright owner) in order to preserve it."

Via Lawrence Solum, U.C. Berkeley/Boalt Hall law professor Mark Lemley: "The traditional theory of IP is that the prospect of future reward provides an ex ante incentive to innovate. An increasingly common justification for longer and more powerful IP rights is ex post--that IP will be 'managed' most efficiently if control is consolidated in a single owner...Those who rely on this theory take the idea of IP as 'property' too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn't just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market."

What to Do with Your $13.86

Been wondering what to do with that CD price-fixing settlement check burning a hole in your pocket? A few options:

[X] - Buy a CD...just part of one to be precise, since they're so overpriced.

[X] - Buy some iTunes...of songs I probably already own and that I can't play both at home and work on my player of choice.

[!] - Donate it to the Electronic Frontier Foundation (EFF) so the music industry doesn't screw me over again!

Posted Friday, February 27, 2004

Bunner Acquitted in DeCSS Case-Again

You recall that Jon Johansen was acquitted for writing/distributing software code that decrypts the data on DVDs--not only once, but twice?

Andrew Bunner has just joined the club. The DVD-CCA previously asked to end its lawsuit against Bunner over posting the DeCSS code, but was denied. Today, the California Court of Appeal for the Sixth Appellate District found [PDF] that the injunction against Bunner was improper, that it inappropriately burdened speech and that the DVD-CCA was not likely to succeed on the merits in the case. The injunction has been reversed and Bunner awarded costs.

Says EFF's Gwen Hinze: "Today's Court ruling that there is no evidence that CSS was still a trade secret when Mr. Bunner posted DeCSS vindicates what we have long said; DeCSS has been available on thousands of websites around the world for many years."

Richard Weibe: "This long-delayed but gratifying victory sends a strong message to those who would try to misuse intellectual property laws and corporate power to stifle free speech on the Internet."

Later: Jason Schultz culls a number of interesting bits from the ruling.

Later #2: Ernest Miller: "One very interesting aspect of the decision is that there is no mention of the DMCA and how it relates to the trade secrets law."

Later #3: Edward Felten: "This is a sensible ruling. The only surprise is that it took the California courts so long to reach this conclusion."

Later #4: More from Robin Gross @ IP Justice.

Tell Us How You Really Feel

Veri$ign executive Tom Galvin, on his company's filing a lawsuit against ICANN: "Working the ICANN process is like being nibbled to death by a duck. It makes no sense, and in the end, you're dead in the water." (Via Ditherati.)

Later: Thomas Roessler: "Essentially, it seems like the new registry services issue has just been moved from the GNSO to the court system." More @ ICANNWatch.

Later #2: James Grimmelmann @ LawMeme: "The most evil organization behind the 'Net is suing the most inept."

DVD Copy Minus

That's Wendy Seltzer's name for the 321 Studios "DVD Copy Plus," if stripped of its ripper.

Notes The Register, in an article about the "DVD X Copy," so stripped: "The irony is that the open source DeCSS code is widely available on the Internet, and it won't be too hard for users to locate ripper software that can extract files from a DVD. The new versions of DVD X Copy will then be able to burn those files to a fresh disc, as before."

Posted Thursday, February 26, 2004

David Weinberger, Berkman Fellow

Bravo to the Berkman Center for snagging David Weinberger as a fellow!

This makes the second Berkmanite to blog @ Corante.

If you haven't yet read David's work, here's a (highly recommended) taste.

SETI@Home for Online Censorship

The Berkman Center has been working on this one for a good long time--extremely exciting to finally see it launch:

The number of states seeking to control the Internet has risen rapidly in the recent years. Mustering powerful and at times compelling arguments--"securing intellectual property rights," "protecting national security," "preserving cultural norms and religious values," and "shielding children from pornography and exploitation"--extensive filtering and surveillance practices are being proposed and put in place to curb the perceived lawlessness of the medium. [...]

The OpenNet Initiative is a University-based policy research project documenting filtering and surveillance practices worldwide. Our aim is to excavate, expose and analyze these practices in a credible and non-partisan fashion--to uncover the potential pitfalls of present policies, and explore the possibility of unintended and unexpected consequences, and thus help inform better public policy and advocacy work in this area.

Via the "must-syndicate" Berkman blog.

Posted Wednesday, February 25, 2004

EFF on P2P: A Better Way Forward

For those of you who haven't yet seen it, here is EFF's white paper on how to resolve the crisis over peer-to-peer file sharing: A Better Way Forward: Voluntary Collective Licensing of Music File Sharing.

More to come.

Later (February 26): A group textual analysis via Quicktopic is now underway, whilst Big Media sez...

Later #2: From the ever-helpful Derek Slater, two stop shopping for (1) background and (2) terminology in the debate.

Later #3: From the ever-thoughtful Ernest Miller:

First thought: EFF finally agrees with me (mostly)!

Second thought: How come I don't get any credit and EFF doesn't offer me a job?

Third thought: Man, I need a smaller ego.

Seriously, I am quite glad the EFF has offered this clarification of their music filesharing policy. With a minor quibble or two, and one major problem, I think this is precisely the answer to our filesharing dilemmas.

Copyright Land Grab - Discuss, Part II

Two posts from Larry not to be missed:

Copyright Land Grab - Discuss

Mikael Pawlo of Greplaw has yet another excellent interview--this time with Jessica Litman (hyperlink, mine):

Greplaw: Which are the three most important trends in copyright legislation today?

Professor Litman: The most important and in my view scariest trend is simply a case of skewed priorities. In order to ensure that copyright owners can exercise plenary control over consumers' uses of their works, we've already been willing to sacrifice important chunks of our freedom and our privacy.

Greplaw: Should they be opposed? How?

Professor Litman: "I think the best way to oppose what Professor James Boyle has called the 'copyright land grab' is relentless discussion. The more people talk with each other about the copyright law, the less tolerable it is that the law doesn't make any sense. Congress is only going to wean itself from a century-long habit of copyright lawmaking controlled by copyright lobbyists if it becomes clear to our Senators and Representatives that their constituents are paying attention.

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

Later: EFF on the legalities; Larry Lessig's .02.

Posted Monday, February 23, 2004

321 Steps In Eldred Mess

Seth Finkelstein, on the recent decision [PDF] in MGM v. 321 Studios: "Last year, there was a DMCA / fair use 'pony hunt' to find a way to argue that a sentence in the Eldred decision would undo the legal hack where the DMCA hacks-away fair use. Unfortunately, we are still left with a pile of manure."

Later: For more on the decision, here's press coverage/linkage round up #1 and #2--from, respectively, Frank Field & Denise Howell.

Later (February 26): A Cyberia-L email list member:

I am sure that all who have read the 321 decision have noticed that it isn't really a "decision"--it is a kind of "recitation" of assertions made in Reimerdes/Corley and Elcom. For the very same money, a law clerk with a pair of scissors and a supply of scotch tape could have "assembled" the "opinion" from the other DMCA cases--no trouble need have been taken to "write" it.
Later #2: Derek Slater:
The meaning of Eldred as read through MGM v. 321 is that the government may limit fair use (as guaranteed by the Constitution) so long as it advances "significant government interests" and does not unreasonably burden fair use... What's interesting is that, at first, it sounds like intermediate scrutiny, which is what the Eldred appelants wanted, but it seems very watered down. So it's better than no First Amendment scrutiny, but only just.

Posted Thursday, February 19, 2004

DRM Got You Down?

Or worse yet, relentlessly preachy?

Via Ernest Miller, the antidote:

Player: I hear Mongoose Publishing is releasing a new edition of the Paranoia roleplaying game this August. What can you tell me about it?

The Computer: State your reason for requesting this information.

Player: Uh... I guess I was wondering whether to buy it.

The Computer: Excellent, citizen! You wish to legitimately purchase this product, rather than steal The Computer's valuable intellectual property like a traitorous data pirate. This demonstrates your loyalty to the ideals of Alpha Complex.


Player: Is PARANOIA XP still about living in an underground city of the future ruled by an insane Computer?

The Computer: The Computer is not "insane." Traitors lurk everywhere...Now your clone family faces not only these persistent threats, but a new host of looming dangers such as viral licenses, closed-source genetic retooling, identity rentals, subconscious post-hypnotic brain-spam, Infrared-market WMD auction sites, and filesharing.

Player: Filesharing?

The Computer: Filesharing is Communism! Fortunately, The Computer's loyal Central Processing service firms have devised many innovative digital-rights management methods to shield you from temptation. The most promising methods manage your actual physical digits. Would you care to get your fingerprints remapped?

WhenU Pit Trademark Law Against Competition

Fred von Lohmann, in a media release on the amicus brief EFF signed in 1-800 Contacts v. WhenU: "If I'm walking to my neighborhood drugstore to purchase contact lenses and on the way I see a pharmacy with lenses at half the price, I should be able to stop by and take a look at the competition before making my purchase."

Later: EFF Seeks Reversal of WhenU Ruling: "The amicus brief details several examples of offline advertising that divert consumers' attention by presenting them with competing products during their shopping process. It describes the District Court's injunction as dangerous because it appears to target a whole medium without addressing the content of the advertisements themselves."

DirecTV v. Freedom to Tinker

A computer engineer who uses tinkers with smart-card technology, in an excellent East Bay Express article on satellite giant DirecTV's litigation campaign against those who purchase it: "At the time I bought the programmer, DIRECTV had not yet embarked on its extortion path and I thought nothing of buying a perfectly legal piece of equipment as I had no plans to use it illegally."

Posted Thursday, February 12, 2004

DRM Roll, Please

My EFF colleague Jason Schultz (hyperlinks, mine): "Forget open content on your next-generation mobile device: CMLA is here to make sure you only use Big Content from the corporate media. [...]
Result: A technical and legal hack around fair use and the Betamax doctrine. The only devices that can play Big Content are those that have undergone CMLA's fair use labotomy and come out crippled."

And on that note, here's a word or two on the subject from Jim Griffin in his much-discussed interview with The Register:

With copyright owners it's difficult to monetize things after the fact. In wireless, we live in 1992, at 14.4 kbits/s, which is shortly before the troubles began!...The 3G networks are going in and they're wondering how to get people to use them, because if they don't use them for data, people can use 2G networks for voice. But before high bandwidth wireless takes off we still have the opportunity to do this for copyright holders, before the fact.

But how can the wireless industry get there? Only this week we saw a DRM standard for cellular announced?

When I was 14, I told girls I loved them to sleep with them too. It was a fiction. Steve Jobs just leaves a little money on the table.

We see Jobs and Gates making promises to the content industry that they have no intention of keeping. It's the promise you make to move forward. The content owner wants to hear it.

If we're honest we'd say to the content owners, "we're not going to succeed from what we can tell. The cars we build are more powerful than the brakes we build, and we won't control it. The ways to make it friction-free are more powerful than the friction we build. The audience sees no value in friction. They don't pay for it."

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.' [...]

Neither [the lower court's ruling nor this one] touches on whether these notices must be of actual infringements. One can strictly interpret 512(i) to say that only repeat infringers, and, as opposed to 512(h), not 'alleged' infringers, must be terminated--thus, only people found to have infringed by a court twice must be terminated. In its more flexible reading of what it means to 'reasonably implement' a policy, the appeals court points in the other definition of infringer, but it's not clear from the ruling."

Ernest: "[If] we don't have a strict definition of 'repeat infringer,' the DMCA as currently structured gives too much power to the copyright holders. For example, a notice-and-takedown letter might very well be sent against a legitimate work of fair use. The author of the fair use work might take down the work simply because they cannot afford to fight a court battle, not because the work was illegitimate...Having a quick notice-and-takedown provision for copyright infringement makes a lot of sense--but only in cases of blatant infringement. Thus, I would allow the use of notice-and-takedown but with a reverse liability clause...I think this would have solved the whole Diebold mess."

Jason: "[The] decision notes that if AOL can prove that its policy for DMCA take-downs was reasonable, it will qualify for the safe harbor under 512(a), the 'conduit' provision. This is interesting because AOL kept the USENET archives for up to 14 days on its servers. The fact that the Ninth Circuit considered this still to be 'transitory' is a good observation of the reality of computer networks and the fact that storing data temporarily, even for a week or two, is pretty typical activity for ISPs.

The decision is also interesting because one of the panel members, Sydney Thomas, is also one of the panel members on the MGM v. Grokster case about P2P liability in the vicarious and contributory context."

Kill Bill, Vol. 3

Word on the street was correct: Brandy Karl, who has previously written @ FindLaw about our export of American-style copyright restrictions abroad via free trade agreements, now has a new piece up explaining why it's necessary to kill in its infancy the proposed Database and Collections of Information Misappropriation Act (DCIMA):

In short, "[The] DCIMA is patently unconstitutional. In addition, from a policy perspective, it is a mistake--and the way it is currently drafted only worsens that mistake."

Free Culture Proponents Are the True Conservatives

Kevin Werbach has a very fine response to James Delong's argument that the so-called Copy Left, or Free Culture movement contains more than a few trace elements of communism:

The property rights maximalists are the true radicals here. They have defined any challenges to the status quo as a frontal attack on property rights. As political propaganda, this effort may have some success. But the ultimate strength of the Free Culture Movement, or whatever one calls it, lies in this: It is an internal critique of the dominant ideology, not an external challenge to markets like communism.

The Free Culture proponents, who offer suggestions like returning to the copyright terms of the 1790s, are the true conservatives in this debate.

Previous post by Larry Lessig on the issue, here.

Later: A second fine response, to Delong's reply:

The movie industry...has voiciferously promoted its conception of its intellectual property rights as morally sacrosanct, now and forever. One key rhetorical move they make in doing so is to label anyone who questions their viewpoint as a communist and/or a pirate. (I'm not sure which is the greater insult.) You either support the Sonny Bono Copyright Term Extension Act... or you're in the dustbin of history with Lenin and Trotsky. In a political battle, demonizing the opposition can be very effective.

Hail Mary II

bIPlog's Mary Hodder attended a Yale ISP/Harvard Berkman scholar's meeting at which John Palfrey, David Johnson and Susan Crawford presented on "The Accountable Net"--and blogged it for our benefit. Thanks, Mary!

Hail Mary

I've been meaning to say this for a while now but literally haven't had the chance: check out Mary Bridges' work @ the Berkman Center. She's the brain behind the Berkman weblog, Berkman Briefings, the Digital Media Project weblog and evidently, much, much more.

Posted Tuesday, February 10, 2004

LawMeme on Betamax/Grokster: Back to the Future

My EFF colleague Ren Bucholz, over @ LawMeme:

In last week's Ninth Circuit oral argument in the MGM v. Grokster case, Judge Noonan opened the proceedings by asking Russ Frackman, lawyer for the recording industry: "Everything you said could have been applied to Sony, so what's the difference?" Good question. Thanks to the Oyez Project, we can go back and listen to the 1983 Supreme Court oral argument in the Sony Betamax case to answer it.

With apologies to Wayne and Garth: excellent. Check it out.

More on the Betamax decision and how it applies to the current struggles over peer-to-peer technology here.

Kill Bill, Vol. 2

It wasn't long ago that I wrote to warn you of the Coming of the Anti-Feist--a.k.a. The Database and Collections of Information Misappropriation Act, a bill that would extend copyright-like protection to collections of facts. This is a Very Bad Thing, yet it has already been approved 16-7 in the House Judiciary committee.

Now the good people at Public Knowledge have issued their own warning, and are providing you with yet another opportunity to tell your representatives to Kill Bill. If you haven't yet, please do check out the details here or here, and help Congress do the right thing.

Later: Word on the street has it that Brandy Karl will have a new piece up tomorrow @ FindLaw on why we need to kill the DCIMA. Keep your eyes peeled.

Later #2: Siva Vaidhyanathan, author of Copyrights and Copywrongs and the forthcoming Anarchist in the Library: "This is one of the most dangerous information policy moves since the DMCA."

Speaking of Copyright, and Facts...

Farhad Manjoo @ Salon thankfully ventures beyond mere regurgitation of the facts in his report on yesterday's hearing in OPG v. Diebold:

"What happened at Diebold was, they said, 'Hey, there's this embarrassing stuff online,'" [Cindy] Cohn said in an interview. "So their lawyers said, 'Here's this easy way to get them down--we don't have to go to a judge, we just say they're copyrighted.' Diebold says, 'Sure, that's cheaper.' What we'd like to have interjected in that conversation is a lawyer saying, 'Wait a minute, we don't have a valid copyright claim.'" EFF asked the judge to make Diebold pay the OPG's attorneys fees and other damages as a way to deter other firms from too quickly reaching for the DMCA.


Diebold could very well be right. The firm might reasonably have decided that activists had no fair-use right to publish the company's internal discussions--but if Diebold is correct, and it turns out that the DMCA does, as the company asserts, give a company the right to shut down hundreds of websites just to get at one hyperlink, that by itself would be a damning commentary on current copyright law.


Posted Thursday, February 5, 2004

The Digital Challenge to Copyright Law

Are you going to be there?

I will, and likely will blog Digital Music: What Does the Future Hold?, the panel featuring my fellow Berkman-ite/EFF colleague and personal hero Wendy Seltzer. So if you can't be there in person, visit this space; I'll capture as much as I can.

Later: Sorry, folks--a computer mishap stopped my plan to blog in its tracks. Took copious notes by hand, however, and shall post soon.

Posted Wednesday, February 4, 2004

Listening to Grokster

Still wondering what happened during yesterday's oral argument in MGM v. Grokster? Bypass the spin, listen to the hearing [MP3 file, public domain], and decide for yourself.

My favorite bit: when Judge Noonan calls Mr. Ramos on his use of overheated rhetoric--e.g., piracy talk:

"Let me say what I think your problem is. You can use these harsh terms, but you are dealing with something new, and the question is, does the statutory monopoly that Congress has given you reach out to that something new. And that's a very debatable question. You don't solve it by calling it 'theft.' You have to show why this court should extend a statutory monopoly to cover the new thing. That's your problem. Address that if you would. And curtail the use of abusive language."

Later: Wendy Seltzer, urging unrestricted swapping of the oral argument MP3: "It's public domain, so share freely on the peer-to-peer networks whose legality Fred von Lohmann and Mike Page eloquently defend."

Groking Grokster

The most detailed and accurate press coverage on yesterday's Grokster hearing so far is available here [San Jose Mercury News].

More, soon.


Later: A few tasty excerpts from a first-person account of the hearing by a Pho list member:

Russ Frackman, a really great guy and lawyer, argued for the RIAA companies and Carey Ramos for the music publishers...The panel turned on Russ pretty badly. Judge Noonan was almost libertarian and in addition to accusing Russ (at least three solid times) of completely miscasting Betamax, he also openly questioned, as did Judge Thomas, the opinions in both Napster cases previously heard by the 9th...His argument that P2P applications could be forced by the Court to adopt new blocking technology was met by great skepticism by Thomas and Noonan.

Fred von Lohmann, representing Streamcast and an EFF staff lawyer, really did a fantastic job and had memorized all his citations, even those in response to panel questions. Impressive, particularly under pressure. His argument was not made difficult. Thomas and Noonan were both pretty transparently well favored to his case. Both seemed well versed in Betamax and both understood the standard of that case as requiring only that an application or devise was "capable of substantial non-infringing uses." They both raised questions about the meaning of "substantial" but seemingly resolved those questions by accepting that the test could not be proportional and that P2P file sharing applications probably qualified. They listened attentively and without interruption to the argument that "nuanced responses to new technology" should be left to the legislature and Fred efficiently cited many instances in the Copyright Act where legislative intervention occurred (although he was too young to pick up Teleprompter and the cable compulsory).

Posted Monday, February 2, 2004

The Importance of...Reading Ernest

Former LawMeme Editor-in-Chief and current Yale Fellow Ernest Miller has a brand new home for his weblog--right here @ Corante.

Welcome, Ernie.

It's a good day for the blogosphere. Also setting up shop: EFF's Brad Templeton, spreading some very Brad ideas.

Betamax in the Balance

You recall the day last spring that Grokster/Morpheus was Betamaxed? Tomorrow is the day that MGM et al. will try to persuade the 9th Circuit Court of Appeals that the lower court got it wrong.

Frank Field has the essential links; Derek Slater, meanwhile, has his own personal contribution.

Bonus: Three excellent pieces reflecting upon the present struggle over peer-to-peer networks, the Betamax decision, and the future of innovation in the digital sphere:

Posted Sunday, February 1, 2004

Apple "Talks" to the Pepsi Generation

The Register has the best take yet on the perplexing Pepsi/iTunes ad that will be shown during the Super Bowl broadcast rather than the small-media birthed ad (hyperlinks, mine):

The broadcast encourages children to buy as much teeth-rotting Pepsi soda as they can in the hope of finding a token that allows them access to a free, DRM-infected piece of Pepsi Cola.

Lucky them!

Ironies abound, as you might imagine. Where shall we start?

Well, Apple Computer isn't the only party that wants to exploit abused children, on this most of American of Sundays. MoveOn made a submission, also featuring children, but found itself rejected because it was deemed to represent a "special interest group." We're not sure what vacuum these arbiters of public taste live in. But with three of the four constituents of the entertainment industry--consumers, device manufacturers and artists--eager to discuss fairer compensation models, it's hard to see any other conclusion than that the RIAA is a very, very special interest group indeed.

So Apple fancies itself a champion of "rip, mix, burn" culture--that is, a culture empowered to "talk back" to big media. Yet here it serves as the willing mouthpiece for an industry that would like nothing better than to convince the Pepsi Generation™ that the personal computer is only (yet another) conduit for passive, tightly controlled consumption. And CBS runs the ad--because this message isn't in the slightest bit controversial.

This would be thoroughly depressing if it weren't for the fact that the message isn't likely to hit the target. It's not just that teenagers can smell lame (read "condescension") from miles away. It's that they're already using their computers to do a lot more than consume, and they're not going to want to stop anytime soon. Sure, they'll drink some Pepsi and download a few "free" iTunes. But not without knowing full well that only it's brown sugar water and a consolation prize.

Later: Via Cory, what Downhill Battle would like you to do with said prize.

Later #2: Kevin Doran: "[It's] kinda like those eggs on drugs commercials--ridiculed as being hopelessly lame because they tried to be soooo hip. The only people who didn't want to go out and get those sizzling drugs were the ones with the munchies who wanted some eggs."

Posted Thursday, January 29, 2004

Vox Populi

A quartet not to be missed:

  • David Weinberger @ his brand new Corante weblog, Loose Democracy: "I am foolishly doe-eyed about only one aspect of the Dean campaign: It's not only shown that the Net is a powerful political tool, it has done so by consistently surprising us about the how and the why of that tool."
  • Derek Slater (about a week ago) on one such surprise: "This is cool...Very silly, but also cool. They're taking a currently important moment in the cultural landscape and (re?)defining it from their points of view."
  • John Perry on Big Media on Dean: "[According] to the big media, Dean's 'yee-haaa' was the sound of political hara-kari...They belabored him for his shout as though he'd done something truly heinous, like, say, leading America into a major war under false pretenses, or robbing the poor to feed the rich, or dramatically curtailing civil liberties."
  • Larry on Kerry on copyright: "He sounds like someone in the 1960s, who when asked about the environment, responds with 'business is the lifeblood of our economy.' Yes, of course it is, and yes of course copyright is the lifeblood of (some forms of) creativity. But if you think that's all there is to the issue(s), then you don't understand the issue."

Posted Wednesday, January 28, 2004

The Coming of the Anti-Feist, Part II

Here's where you can head it off at the pass.


We're surrounded by free factual information, but there's a bill in Congress that would lock it all up. The Database and Collections of Information Misappropriation Act (DCIMA, H.R. 3261) extends extremely broad copyright-like protections to collections of factual data--data like the price of a TV, the temperature in Arizona or information collected during scientific research. DCIMA would allow companies to sue anyone who interferes with their ability to profit from data that they collect. In other words, academic researchers, public libraries, Internet innovators and other database users would have to pay up if someone else claims to have assembled the data first. This is not only unnecessary, it's bad policy.

Or as Frank Field puts it, "actually a little perverse."

More, here.

Posted Tuesday, January 27, 2004

Geek the Vote

Via Declan McCullagh @ Politech: something to read in lieu of utter nonsense about a barbaric yawp.

As Declan himself notes, the information above is useful yet a bit stale. By now most of us have heard the news about Howard Dean's support of smart card IDs in driver's licenses and Kerry (like most of Congress) signing on to the USA PATRIOT Act with praise for the "compromise" position it strikes. Kucinich, meanwhile, is the only Democratic candidate to have taken a strong, principled stand against DMCA abuse.

We need a new scorecard.

Later: Larry Lessig, on Declan's Howard Dean/smart card story: "What Declan doesn't get (how to read)."

Later #2: Edward Felten: "At bottom, what we have here is a mistake by Dean, in deciding to give a speech recommending specific technical steps whose consequences he didn't fully understand. That's not good. But on the scale of campaign gaffes, this one seems pretty minor."

Later #3: Aaron Swartz in a post entitled "The Media vs. the Facts":

THE MEDIA: Dean has an extremely short temper. When he didn't come in first in Iowa, he went crazy and started screaming at his supporters.

THE FACTS: Dean was addressing a crowd of 3500 supporters, many of which had left their homes, families, and jobs to come to Iowa to help Dean win. But neither Dean nor the crowd were upset — compared to when the campaign was just getting started (the reference point Dean adopted) they'd done phenomenally well, and they had a long campaign ahead of them (and lots of cash).

Dean was happy — you can clearly see he's smiling — and his supporters were too. He was rallying the crowd, and he had to scream to be heard over the noise and excitement in the room. To the people actually there, his infamous yawlp was barely audible. (source)

The yawlp, by the way, was was a campaign war cry — everybody was doing it that night. (source)

Posted Monday, January 26, 2004

PATRIOT vs. the U.S. Constitution

This time around, the Constitution won: "A federal judge has declared unconstitutional a portion of the USA PATRIOT Act that bars giving expert advice or assistance to groups designated foreign terrorist organizations."

Absolutely fantastic.

Later: EFF's Kevin Bankston: "Under PATRIOT, it would have been illegal to provide humanitarian or political advocacy training to the anti-apartheid African National Congress, which was a designated 'terrorist' organization before apartheid was defeated. This decision ensures that Americans can exercise their First Amendment right to engage in non-violent political activism without being branded terrorists-by-association."

Posted Saturday, January 24, 2004

Eyes on the Prize

A few Pholks are offended that The Tyranny of Copyright? could be interpreted to attribute the term "copyleft" to Larry Lessig and not Richard Stallman; I myself was a little surprised not to see a mention of EFF in the discussion of the (ongoing) Diebold e-voting case.

The reason, though, seems clear to me: the article is focused on the social movement that promises to emerge from the phenomenon of open source/free software, not free software itself. It's focused on the fact that a number of us have recognized that there is something wrong with copyright today, not on naming particular groups fighting particular battles.

It's all good. I appreciate that Pholks are dissecting the article; it will help many of us learn more. But I'm less interested in identifying "inaccuracies" than I am in what this piece means in terms of taking our message farther.

Posted Friday, January 23, 2004

The Copyfight Hits NYT Magazine

Via uber-copyfighter Siva Vaidhyanathan: The Tyranny of Copyright?:

Once a dry and seemingly mechanical area of the American legal system, intellectual property law can now be found at the center of major disputes in the arts, sciences and--as in the Diebold case--politics.
In less than a decade, the much-ballyhooed liberating potential of the Internet seems to have given way to something of an intellectual land grab, presided over by legislators and lawyers for the media industries. In response to these developments, a protest movement is forming, made up of lawyers, scholars and activists who fear that bolstering copyright protection in the name of foiling "piracy" will have disastrous consequences for society--hindering the ability to experiment and create and eroding our democratic freedoms.
Yup. Speaking of which, here's a little something you can do about it.

Posted Thursday, January 22, 2004

DVD CCA Raises White Flag in DeCSS Case

The DVD CCA today decided to give up its multi-year battle to convince the courts that Andrew Bunner's publishing of widely available DeCSS code is a violation of trade secret laws.

Later: Slashdotted.

Later #2: Allon Levy, Bunner's attorney: "Following a four year battle, the plaintiffs appear to have finally conceded that their case lacks merit. I'm pleased that we were able to restore the traditional balance that has always existed in trade secret cases at its core, a trade secret holder simply cannot successfully restrain the dissemination of publicly available information. Both common sense and the First Amendment dictate that a trade secret that isn't secret anymore just isn't protectable."

Later #3: Andrew Bunner (@ Slashdot): "My fifteen minutes of fame are over. The DVD CCA is dropping their case against me...To celebrate the occassion, I've asked my lawyers to file a counter-suit alleging emotional anguish and seeking damages of one hundred billion trillion dollars."

The Coming of the Anti-Feist

Chronicled by Declan McCullagh @ CNET: "By a 16-7 vote, the House Judiciary committee approved an intellectual property bill that had been opposed by, 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

J. Bradford DeLong James DeLong throws out a bit of chub this morning that is sure to get the waters churning:

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. [...]

The open source theorists know perfectly well that the model might translate to academia, but not beyond that. In fact, they have another model in mind, which is to make content free, tax the hardware industry, and then distribute the revenues to the creative community according to some complicated government-run formula. (See the work of the Berkman Center, or the Electronic Frontier Foundation.) To even think about this produces a shudder, given the government's unblemished and bipartisan record of pork, politics, and destruction in every industry it touches. (Think schools, energy, telecom.) It is also not even open source, particularly; it is just socialization of the creative sector. The big question is, Why would anyone want to go down this road?

Fellow Corante columnist Arnold Kling responds: "Actually, I like the model of having people pay for software through hardware. But I agree with DeLong that we don't need government to administer the process.

I could see, say, Apple, obtaining licenses to bundle thousands of songs with some future iPod. Apple would collect the 'tax' and distribute the revenues. For past creations, the revenues would go to RIAA publishers (boo, hiss), but going forward they would go more directly to people who create, produce, and filter music."

Posted Wednesday, January 21, 2004

M$ Wants to Like Mike

Backpedalling: "We appreciate that Mike Rowe is a young entrepreneur who came up with a creative domain name. We take our trademark seriously, but maybe a little too seriously in this case."

Posted Saturday, January 17, 2004

It Was 20 Years Ago Today

Betamax let the VCR play.

Posted Tuesday, January 13, 2004

Brief Hiatus

I've got a number of pressing projects to attend to, and likely won't be able to return to Copyfight for another few days.

Here is where I would visit, were I you. Not to mention here, here, and here, and for good measure, here, here and here. And last but by no means least, here.

Okay, I'll stop now. Be back soon.

Posted Thursday, January 8, 2004

Copyfight Club

JD Lasica comments @ A Copyfighter's Musings on the number of people who admitted to filesharing in the much-discussed Pew phone survey: "The first rule of darknets is not to tell any outsiders about it."

And the second rule of darknets is...

Kidding aside, Derek's doing a lot of good thinking and linking this week; I suggest you make like JD and check it out.

Frank Field is also doing a typically terrific job tracking the action. One post in particular caught my eye: Solum from Atlanta. The reason? I haven't had the time this week to read Professor Solum's notes on what looks to have been an excellent conference on contemporary copyright issues. Frank evidently did, and his nutshell description alone tells me I need to make the time:

Prof. Solum's closing discussion centers on some interesting points to consider in the face of the apparent conflict between the freedom of speech and copyright – the idea that the fact that today's copyright conflicts with the First Amendment might be an indication that the law has been over-extended.

This is an important insight; it's what Chilling Effects--and to a significant degree, Copyfight--is all about.

Thanks, Frank.

Later: Two additional, intriguing responses to Solum's notes:

  • Ernest Miller: "[Solum's] brief notes are a good starting point for looking at and discussing various threads regaring the intersection of the First Amendment and copyright law. Of course, his post serves to make the point that right now there is no coherent theory, nor is there a consensus as to how we will move towards one...I, of course, remain convinced that telecommunications law, copyright and the First Amendment are related throught the concept of distribution...that they can all be analyzed through the lense of rights of distribution."
  • Scrivenor's Error: "Something that I find interesting, and rather disturbing, in the whole debate (both as described by Professor Solum and in a wider sense) is that only a few of Congress's redefinitions get much attention at the Constitutional-interpretation level. We argue about what is a 'limited Time' (Eldred), we argue about whether derivative works ought to be covered as part of 'exclusive Right[s]' or perhaps as a 'Writing'--and that's about it. We don't argue about some of the behavioral judgments that have crept into intellectual property law, often in contradictory ways."
Later #2: Mary Hodder offers a lively and amusing synthesis of the discussion captured here and @ Displacement of Concepts: "Where do we map the copyright industry's control when that control steps into our individual daily experience and wants to control what hummed tune spills out of our mouths, as we go about our lives?"

Posted Tuesday, January 6, 2004

Tomorrow's News

Just before the holidays, Cory Doctorow jumpstarted a thought-provoking discussion with a simple assertion: "The last twenty years were about technology. The next twenty years are about policy."

I missed the boat entirely. For those of you likewise stranded on the shore, below is a brief (3-hour?) tour:

  • DPH ZERO FOUR: statements for 2004 [Cory @ die puny humans];
  • Technorelativity: "A nice formulation, but, with all due respect, a wrong one." [Kevin Werbach @ Werblog];
  • Users Drive Policy: "Social norms pull, like my aggregator, not push decisions in policy nor code." [Ross Mayfield @ Many-to-Many];
  • Technology and Norms of Publicity: "I wondered at first if privacy tensions would ease as more people became more technically sophisticated, but I'm inclined to think that gaps in understanding will just move with the tech, and social norms will follow still further behind." [Wendy Seltzer @ Legal Tags];
  • Social Norms Aren't Behind Other Points of Regulation: "I think it is quite dangerous to believe that social norms are 'falling behind.' Social norms aren't behind; they're baffled at the direction in which things are going." [danah Boyd @ Zephoria];
  • Regulatory Slippage: "Better technologies will support social norms, not fight or frustrate them, or they'll likely die lacking a market. From whatever particular angle we begin looking at a problem, we shouldn't forget to look at the other constraints, and we shouldn't presume that our 'native' viewpoints offer the best perspective." [Wendy Selzer @ Legal Tags]; and
  • Privacy and New Technology: "[Well] designed systems are rare today, and it's the invisible nature of the tracking, and our relationship to the data from the tracking, that causes consternation and upset. A blanket privacy policy would alleviate many fears and open up many new information technology development possibilities...." [Mary Hodder @ Napsterization].

Later (January 8): Frank Field responds with a post entitled Cory's Odd Assertion. Robert Heverly, meanwhile, muses upon another one:

In the online world, especially the blogging world, lots is said about copyright, copyleft, copynorms, and more. Lots of online people are concerned with copyright. And one of the big concerns is licensing copyright works, either voluntary licensing or compulsory licensing. And one of the people I am always hoping will write or post something in the copyright area is Cory Doctorow. He's just, well, really smart and thoughtful, and, well, really fun to read. So when he (or some other smart person) posts something that doesn't seem to make sense, I wonder what's wrong with me...

Today's News

Today was chock full; I'm still digesting. Two top spots for the latest: Furdlog and A Copyfighter's Musings.

Yesterday's News

Two essential pieces: two essential recommendations:

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 Privacy

The 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.


[T]he text of § 512(h) and the overall structure of § 512 clearly establish, as we have seen, that § 512(h) does not authorize the issuance of a subpoena to an ISP acting as a mere conduit for the transmission of information sent by others.


For the foregoing reasons, we remand this case to the district court to vacate its order enforcing the February 4 subpoena and to grant Verizon's motion to quash the July 24 subpoena.

So ordered.

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."

A participant in the MetaFilter discussion: "This just means the RIAA has to buy a bigger law."

John Palfrey (hyperlink, mine): "Add this development to the Grokster opinion, and the trend of the law in favor of digital rights holders is at least in a holding pattern."

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."

Paul Levy of Public Citizen, on the Politech list:

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."

2. After all the times Judge Bates berated Verizon for making weak arguments that made no sense, how satisfying will it be for Verizon to see the statement in the Court of Appeals' decision characterizing at least one RIAA argument as "borders on the silly."

3. This ruling presents the interesting question of whether to pursue, on a principled basis, objections to transferring cases from other courts like California to DC. Presumably, it is now in the interest of the individual clients to have their situations considered in DC, but more generally we like the idea of forcing subpoenas to be litigated where the subscribers live.

(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."

Dodd Harris:

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 Stupid

VeriSign 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.

Painters buy white canvases for a reason. The Internet has succeeded as a platform for innovation because its architecture does not preempt its uses; instead, the stupid network offers a neutral background for line drawing, oil painting, and collage. Sure a grid on the blank canvas would help those making mechanical drawings at the right scale, but it's just noise to the rest, who now need to paint an extra layer to cover it up. Complexity built into the network (such as a search engine that responds to every nonexistent domain name query) may enable a few uses, but it slows or breaks many more, and impedes the development of alternatives.

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?
(a) It is cluelessly megalomaniacal.
(b) It is tragically ignorant.
And I suppose I should add:
(c) It makes me feel warm and fuzzy and safe to think that some day the grown-ups might finally make the Internet a serious communications system instead of the toy that it is today.

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.

We might go some short distance down the road of control, but ultimately the rules of cyberspace are firmly tethered to the rules of meatspace. And in the rules of meatspace--at least where I'm lucky enough to live--lockdown isn't allowed.

"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.

The ideology of the digital copyright extremists, as well as some in the trusted computing community, is one of total control. Any slack in the system for users to do what they want would have to be explicitly granted in their of the world. As David Weinberger argued in Wired a few months back, that's a strange and dangerous notion. It's a good thing to recognize the Net's connection to the physical world, because the physical world has inherent checks and balances.

Take the Plunge

Wired: "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.


So 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...Everything

The 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 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 Won

Who 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 Flash

Here'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.

Later: Larry Lessig, bIPlog's Mary Hodder and CIS Fellow Elizabeth Rader join the fun.

Posted Monday, December 15, 2003

Don't Forget

I 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?

David: Of course those fears are right. But that's one big reason why we ought to be fighting the attempts to institute digital ID as the norm and default. And don't forget to join the EFF.

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. Piracy

God 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 Agreement

Peter 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.

Here's an intriguing Farhad Manjoo Salon piece on the situation, with Julian Dibbell offering his opinion on whether there is a First Amendment in cyberspace.

For more on law and virtual worlds, see:


It 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 Cause

Tomorrow 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 Use

My 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:

Writes Mr. Cringely:
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 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.

Later: It turns out there is even more from Prof. Crawford in the blogosphere: she writes Diablogue with frequent co-author David Johnson.

Speaking of which, Edward Felten has also branched out; he's joined a group weblog called Abusable Technologies--where I personally hope to find future posts on RFIDs.

Posted Thursday, December 11, 2003

The Technologies and Politics of Control

Two must-reads via BoingBoing exploring Jonathan Zittrain's favorite subject:

Steven Levy, in the Newsweek article Cory points to in the first post: "Certain influential companies are beginning to understand that their own businesses depend on an open Internet...Nonetheless, staving off the Internet power shift will be a difficult task, made even harder by apathy on the part of users who won't know what they've got till it's gone."

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."

But if the question is: "What method should be used for this purpose?"--then my answer is: "For all practical purposes, almost any one will do."

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.

Tax the monthly cable modem bill, when the bill is paid, email a blinded token to the user. Have the token automatically opened by the MP3 player (e.g. iTunes). iTunes keeps track of what songs are played and coordinates with the iPod to make sure that the counts are up to date across both devices. At the end of the month, it anonymously sends in the token and the playcount records.

Simply generalize this to all MP3 players and portable devices (the devices have to get the MP3s off the Internet somehow!), with some sort of either market- or government-based encouragement to get providers to release and promote updates. (Get Your Vote Counted! Install the free upgrade today.)

What am I missing?

Later #4: Adam Thomas, responding @ the Importance 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.

Of course, most mainstream news organizations need a "he-said/he-said"clash to justify a story. Blog activism (blogtivism?) rarely generates front-page news, with the Trent Lott-Strom Thurmond scandal being the major exception.


It's important to remember that the debate over voting technology and procedures is not just a 2004 problem. It was an 1876 problem. It was a 1920 problem. It was a 1964 problem before the Voting Rights Act was passed. And it has been a challenge in every election ever held anywhere in the world. It only became visible in 2000 because Florida was close. Chads have been hanging for decades.

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


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.'"

Content Reference Forum Launches and Releases Spec: "Capturing and mechanizing the kinds of content rights that are defined in contracts between businesses--as opposed to the rights that are conferred on end-users--is an onerous, manual labor-intensive task that not only consumes a disproportionate amount of overhead resources at media companies but also greatly hinders their ability to launch new business models for content.


There are many nontrivial barriers to solving the business rights automation problem, including vast organizational differences among media companies in how rights business processes are implemented (or not, as the case may be); the fact that many hardcopy contracts are not very reducible to precise data terms; and ambiguity surrounding many points of law."

Later #2: bIPlog's Mary Hodder and New Scientist with other angles on the announcement.

Alcohol, Tobacco, Firearms, Explosives 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

eWeek's editorial board:

Without competition, an industry can stagnate due to high prices, slow product delivery and limited product innovation. Recent lawsuits that invoke the Digital Millennium Copyright Act seek to curb competition and therefore threaten to bring about those conditions. Passed in 1998, the DMCA was written to limit Internet piracy. But a provision of the law—Section 1201—prohibits individuals from circumventing technological measures erected by copyright holders to protect their works. It is this section that corporations are invoking to kill competition.


The Skylink and Lexmark examples show that the DMCA is disturbingly susceptible to use as an anti-competitive weapon. Repeated abuse of a statute in this way is a sign that the law itself is defective.

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):

Does JHU really believe use of copyrighted work (which is essentially all current work unless rights are expressly granted) is presumptively infringing? What does it imagine its faculty and students do all day long other than read, analyze, comment on and quote others' copyrighted work? It's called fair use. It's called scholarship. It's called doing research and citing your sources. Better get rid of all those books in the library before some criminal footnotes them! Dante (he's in the public domain, by the way) put the hypocrites pretty far down into hell, if memory serves me. Lasciate ogni sperenza, voi che'entrate.

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?

This confuses me. I'd love to know who said to leave the feature out and why?

Next week: the answer.

Rageboy Does Dave

Question: Parody or pastiche?

Posted Monday, December 8, 2003

Still Brewing

That 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.

Later (December 9): Yep--still brewing. Luckily, Ed, Siva, Derek Slater and Mary Hodder are pouring.

More when I can.

Posted Friday, December 5, 2003

Let the Music Pay Redux

Our 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 #2: More food for thought here [Reuters] and here [CNET].

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.

Writes Derek:

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


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?

As a self-proclaimed Grimmelmanniac, I would be remiss if I didn't point you as well to at least a few of my favorite past pieces.


Later: Cory's done it again, linking to a post I was on the verge of linking to: WIPO: IP Theft is Terrorism, by Jason Schultz @ LawGeek.

Later #2: And yet again, this time adding quite the memorable header: Lessig Tears SCO a New One.

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).

--St. Bonaventura, writing in the thirteenth century about the four ways to create a book (The Construction of Authorship, Woodmansee, Jaszi, 1994).

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.

So if you haven't read Cluetrain, Gonzo or Bombast, do. And if you're interested in the topics Chris is exploring now, take a look and lend a hand.

Leter (December 11): Scriptor/shmiptor: we're all a bunch of blogging grandmas.

Posted Tuesday, December 2, 2003


...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.

More, here & elsewhere.

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.

"We're pleased that Diebold has retreated and the public is now free to continue its interrupted conversation over the accuracy of electronic voting machines," said EFF Staff Attorney Wendy Seltzer. "We continue to seek a court order to protect posters, linkers, and the ISPs who host them."

U.S. District Court Judge Jeremy Fogel ordered the case into mediation and set out a schedule to finalize remaining issues, with motions due on January 12 and January 30 and a hearing scheduled for February 9, 2004.

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:

Finally, a quote by Deirdre Mulligan, who was co-counsel for the defense in the previous FatWallet case (from the press release at the time; hyperlink, mine):

When the DMCA passed, many were concerned that the takedown provisions were heavily tilted against speakers--by merely claiming copyright, any individual or business can silence speech. While this case caught the public's attention, there are certainly other instances of speakers being wrongfully silenced under the DMCA.

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?

Paul Boutin answers in the negative @ Slate; Wendy Grossman, meanwhile, tells us why we shouldn't get overly excited about that.



Is there any TV gear I should stock up on before it's illegal?

Yes. Buy a high-definition TV tuner-card for your PC before July 2005. After that you may only be able to get a crippled one.... The reason for the ruling: If TV broadcasters start sending movies such as Finding Nemo over the air in high definition, it will be too easy for any techie to set up a PC that automatically uploads perfect copies to the Net.

Won't that happen anyway?


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 Lessons

Larry 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.

Later (Nov. 30): Arvind Thattai, who writes a group weblog with erstwhile LawMemer Robert Heverly, asks a number of questions that global "Super-DMCA"-style legislation begs:

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.

But that is precisely what is happening, and it seems to be happening only because DVDs are a 'new technology'...."

Posted Thursday, November 27, 2003

Lessig (Blog) Big in Japan

Via 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.

Litman raises the obvious question: "If I'm persuaded that politics would prevent the adoption of a Netanel/Fisher/Ku/Lunney solution, why am I bothering to articulate my own variation?"

Part of her answer is: "The fact that more than sixty million consumers are currently exchanging music over peer-to-peer networks in the U.S. gives them a stake in the building consensus and both a moral and a political claim to a seat at the copyright bargaining table."


Slashdot Bait

Jon 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 Now

Can 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 Folds

As 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]."

More, soon.

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."

John Palfrey: "A huge victory for EFF, Stanford's CIS, those famous Swarthmore students, our own Derek Slater--and frankly everyone who is interested in the principles behind the First Amendment."

The next step? Judge Fogel has scheduled a telephone conference for Monday, Dec. 1st.

Posted Monday, November 24, 2003


A number of my favorite weblogs have posts I wish I could linger over today. A quick tour:

Bonus: My EFF colleague, the incredibly witty Chris Palmer, with a readable, succinct review of bunnie Huang's Hacking the X-box:
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.

Bunnie found that the challenges presented by the Xbox were more than merely technical: "In retrospect, hacking the Xbox was less challenging technically than it was socially and legally."

Posted Sunday, November 23, 2003

Why the FTAA Matters

Nicholas 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 Abuse

Excerpt from a letter [PDF] by Representative Dennis Kucinich (D-OH) to the heads of the House Judiciary Committee, requesting a Congressional hearing on Diebold's use of the DMCA to silence democratic speech (emphasis & hyperlinks, mine):

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.

Later: Synchronicity, courtesy of Brian Carver (emphasis & hyperlink, mine):

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.)

The idea: Convince a U.S. Senator to read the memos during a fillibuster...

It's actually simpler than that, as a Senator can simply ask that any set of documents be "entered into the record" and so the memos could be entered into the record in this way. This happened with the Pentagon Papers years ago. But, I think it's more fun and would garner more press attention if a Senator read a significant portion of the memos. Someone in the legislature needs to take notice of this serious issue regarding the integrity of our voting process.

Shelley Requires Open Source Code for E- Voting

Fine-print find in California Secretary of State Kevin Kelley Shelley's much-discussed position paper requiring paper trails for e-voting (via Cindy Cohn): "Any electronic verification method must have open source code in order to be certified for use in a voting system in California."

Wonder what Microsoft would make of this?

[Thanks to Joseph Lorenzo Hall for kindly pointing out that it's Shelley, not Kelley. Data-smog strikes again. And again, my apologies.]

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).

Likely the rationale for including this requirement is that Shelley knew independent verification was necessary to assure meaningful results (i.e. you don't want Diebold verifying its own ballots), but requiring counties purchase machines from multiple companies is probably not politically feasible. Requiring this itsy-bitsy piece be completely open source *may* be something he can get the manufacturers to swallow, and would achieve the same goal.

Later #4: Parker concludes that California Does it Right.

Posted Thursday, November 20, 2003

The Other Black Box

How universities deal with students in receipt of cease-and-desist letters bearing specious copyright claims.

Later (Nov. 21): Berkman Center Executive Director John Palfrey (formatting, mine):

I wholeheartedly support Derek in his assertion of a fair use defense in this matter for three reasons.
  • First, I think it is inappropriate to use the copyright law, and particularly the DMCA's (17 USC Section 512), as a means to stifle political speech of this sort.
  • Second, I think that every university has a responsibility to factor in its academic role, as well as its role as an Internet Service Provider under certain United States laws such as the DMCA, when forced to take up a matter of this sort and when determining how to respond when its students are accused in this regrettable manner.
  • Finally, I am convinced that Derek has a strong fair use defense and that he ought to be supported in his assertion of that defense.

Required Reading: The Anarchist in the Library

I 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.

Subjects include:

  • The invisible history of anarchism.
  • The ideological effects of distributed networks of communication.
  • The poor quality of public discourse over file-sharing, and a call for a more ethically informed debate.
  • Status anxiety within the motion picture industry.
  • The ways big media powers have corrupted our information environment and the unintended consequences of that corruption.
  • The futility of fighting global piracy.
  • The effects of cultural sharing on diasporic cultures.
  • Global cultural policy.
  • The future of science and math.
  • Globalization in an age of oligarchy and anarchy.
  • State security and insecurity in an age of terror.
  • A call for cultural democracy and civic republicanism.
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!"

Later #2: Doug Simpson @ Unintended Consequences:

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.

[When] B&W found about the release, they had a pending civil suit in Kentucky against Williams, their former paralegal. In that Kentucky court, they obtained a subpoena for Rep. Waxman to provide them with all copies of the B&W documents he had received, and to submit to a deposition. Rep. Waxman's response was to remove the case to D.C., where the District Court quashed the subpoena as in conflict with the Speech and Debate clause of the United States Constitution.

The resulting opinion of the Court of Appeals for the District of Columbia is illuminating on the Speech and Debate clause and the scope of its immunities, as well as the removal of the Williams case to the District. Brown & Williamson Tobacco Company v. Williams 62 F.3d 408 (D.C. Cir 1995).

Question: Can we expect Diebold to send Congressman Kucinich a cease and desist letter, with a takedown notice to the ISP hosting I'd like to be a fly on the wall when those arrive.

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 Day

Via 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.


The FCC's attempt to become the self-anointed gatekeeper to future innovation will undoubtedly benefit the small consortium of companies with approved technologies. But it will also diminish the incentive to bring new technologies to market, hurt consumers who have bought pre-flag devices, and set a dangerous precedent for government mandates on technology.

Congratulations 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

boob tube
Here, the 374 that inspired it.

More (way), from Doc Searls @ Doc's.

OPG v. Diebold--No Decision Yet

U.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.

"I'm not making a judgment about which is more important, Vietnam policy or the future of voting in a democracy," Cohn said after the hearing in federal court in San Jose. "But this is important to the public debate...and you can't squelch it."

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 Try

CIS 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.

[Bikram] claims to have registered "the sequence" and thus has a copyright. This is quite a common reaction to intellectual property--you have a paper from the government so there must be something there. But if I draw a picture of someone riding a horse and fill out paperwork with the copyright office to register it, I have a copyright to my picture. I can sue you for putting my picture on the copier and running off copies for you and all your friends, subject to fair use defenses. I can't run down to the Equestrian Center and sue everyone who's riding a horse.

Six Degrees of Litigation

Paramount 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

Got Game?

Ernest Miller and LawMeme's James Grimmelmann do.

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:

"Hi, thank you for calling PayPal, how can I help you?"

"Yes, hi. I just had payment reversed on a sale that I made, and I understand that because the item I sold was a virtual item from an online game, that payment is not covered by your Seller Protection Policy, and I therefore won't be getting my money back."

"That's correct."

"So, yeah, so I just wanted to check in about that and for future reference make sure that I understand just what is and isn't covered under clause 5 of the policy, which requires that 'The seller ships tangible goods.'"

"That means anything that isn't tangible isn't covered. Any kind of digitally delivered goods, or a service, like a moving service. These are not covered because we need to have an acceptable proof-of-shipment like a tracking number from a shipping company."

"OK, I just want to be absolutely clear about this now. So say I ship somebody tickets to a football game -- is that covered?"

"Yes, because you've shipped them tickets. That's a tangible good."

"OK, then what if I ship them tickets to a virtual item?"


"Say I write down a password that gives the buyer access to a virtual item -- say I write that on a piece of paper or put it on a computer disk and ship that to the buyer and then give you guys the tracking number for that shipment. Would that be covered?"

"I don't think so. You would have to look at it on a case by case basis. You would have to wait until you have a situation like that and then come ask us whether it's covered or not."

"But these virtual items are expensive. I don't want to get to where I've already delivered something and only find out then. Isn't there any way you can give me a ruling beforehand?"

"You would have to wait until you are going to ship such an item."

"Well, OK, I am then. I am going to ship such an item."

"What exactly?"

"I'm selling an online account and I'm going to be shipping the buyer a password to the account."

"OK, I can tell you now then that that would not be covered."

"Why not?"

"Because it's a virtual item."

"But I'm not shipping a virtual item, I'm shipping a piece of paper or a floppy disk with a password for the virtual item."

"But you're not selling the password, you're selling the virtual item, which is not a tangible good."

"Well, neither is a football game. Football games are not tangible goods."

"But you're not selling the football game, you’re selling the tickets, and those are tangible."

"So is the piece of paper I'm sending to my buyer."


Priceless. Literally.

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.

Here's a good summary of the legal changes to Second Life's TOS and our press release announcing this milestone event for gaming.

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:

Peter Suber's useful note at the end of a post on WIPO's webcasting treaty: "PS: Like the Bono Act that retroactively extended the term of copyright, this is piracy from the public domain."

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 ART

Essential articles, here and here; text of the proposed bill, here [PDF].

Posted Wednesday, November 12, 2003

MPAA to Adopt RIAA Tactics. Make Sense?

Speaking of questions, Ernie Miller has written a post (actually, two) that has me asking one (or two).

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."

Why isn't this obvious conflict of interest getting more ink?

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).

I've since broken that rule once or twice, and now I'm going to break it again, for a brief personal tribute:

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

Dan Gillmor calls HR 2239 a "ray of hope" for citizens concerned about the security of electronic voting systems. Yep. 

Here's a bit I sent out in EFFector today; take a look, and if you are so inspired, please do write your representative.

The 2004 presidential election might not be flawed like the last one was; it might be even worse. Communities across America are purchasing electronic voting (e-voting) machines, but the technology has serious security problems that need to be addressed. Most of the machines use "black box" software that hasn't been publicly reviewed for security. Almost none provide voter-verifiable paper ballots to detect fraud. And despite the efforts of one voting technology company to silence its critics, the public has become increasingly aware of the problems with e-voting. The bill has momentum with 62 66 sponsors, but we need your help. Send your representative a letter supporting the Voter Confidence and Increased Accessibility Act of 2003 (HR 2239), which would require openly reviewed software and voter-verifiable paper audit trails for all new e-voting machines.

While we're on the topic of electronic voting systems, here's a shout out to my fellow Berkman Affiliate Derek Slater, who is, as always, fighting the good copyfight

Posted Sunday, November 9, 2003


Early 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

Rob Pegoraro of the Washington Post channels Seth Schoen, Susan Crawford and Arnold Kling in a new piece on the FCC's decision this week to adopt a broadcast flag mandate.

Writes Mr. Pegoraro (emphasis, mine):

The Federal Communications Commission has figured out how to make digital television more appealing to the millions of consumers who haven't bought into it: Force manufacturers to make hardware that's less capable than what's sold today.


Once a show enters the 5C copyright cocoon, your options to use it shrink. The FCC's statement that "the flag does not restrict copying in any way" ignores the fact that 5C eliminates your ability to play back recordings on existing hardware, since almost none of it complies with the 5C standard.

You won't be able to make a lower-resolution copy of a digital broadcast to watch on your DVD player or move a recording to the laptop or handheld computer you own today. And by forbidding all Internet transfers, even of brief excerpts, the scheme steals fair-use rights.


Furthermore, should the FCC even care if the broadcasters carry out their threats? A gap in quality between cable and satellite versus broadcast is not new -- to see my choice of NFL games, watch Iron Chef or just get a static-free version of Fox's broadcasts here, I need to pay for cable or satellite.

The FCC has yet to remedy this injustice, nor should it: Its job doesn't include keeping me entertained at all costs.

Nicely put.

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):

Cardozo law professor Susan Crawford (via Thomas Roessler): "FCC says several times that copy protection isn't their goal and that consumers will be free to make copies. In fact, they even changed the name of the proceeding from 'copy protection' to 'content protection' just to make everyone feel better. But this is so misleading. Once a piece of content is received by a flag-compliant device, it cannot be transmitted to or copied onto or displayed on a non flag-compliant device. Which means: copying is limited, and will require substantial upgrading of devices."

Princeton computer science professor Edward Felten:"The FCC is committing the classic mistake of not having a clear threat model...For a system like the broadcast flag, there are two threat models to choose from. Either you are trying to keep the average consumer from giving content to his friends and neighbors (the 'casual copying' threat model), or you are trying to keep the content off of Internet distributions systems like KaZaa (the 'Napsterization' threat model)....The FCC seems to be trying to have it both ways...This incoherence is evident throughout the FCC's broadcast flag order."

Yale ISP fellow Ernest Miller: "The justifications for the broadcast flag and the effect of the broadcast flag are tangentially related at best...The action the FCC has taken will not significantly, if at all, 'prevent mass distribution over the Internet.' It will, however, impede the average consumer's ability to make copies for friends and family.

Surely the FCC realizes this. If not, they must be stupid. The only other reason for the FCC to make such a statement, then, is to disguise their true intentions, that is, to dissimulate. In reality, the FCC should be saying that 'the broadcast flag seeks only to prevent consumers from easily making copies for friends and family.' However, such honesty would be a hard sell politically. It is much easier to demonize Internet distribution than to tell people they shouldn't make copies for friends and family."

Tech journalist Declan McCullagh: "What FCC officials did not stress, but their regulations do, is that the product definitions are broad enough to cover not just TV tuners but also PCs."

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."


Please note that it is inaccurate to refer to broadcast HDTV as "free TV," particularly in the wake of the broadcast flag regulation. In fact, HDTV is going to be very expensive for the economy as a whole, as millions of devices will now have to be made to conform to the Broadcast Flag standard. Furthermore, I predict that individuals will spend time and resources trying to "hack" the Broadcast Flag, which will lead to modifications of the technology, which will layer on more costs to the economy.

In short, you are claiming to represent consumers like me when you do not. You are claiming to preserve "free" TV when in fact you are increasing the cost to consumers--not just those of us who still view broadcast television, but also the vast majority of consumers who subscribe to pay-TV services as well as consumers who might not use television at all but wish to buy computers or other devices with electronic file-storage capability.


I have no plans to try to try to hack the broadcast flag. I do not care enough about your precious content to watch it, much less copy it. I will get back at you another way.

Another subsidy that "free TV" enjoys is the allocation of spectrum. I hereby declare that subsidy null and void. I am announcing the Jack Valenti Spectrum Re-allocation. As of November 4, 2003, the spectrum that was allocated for HDTV is now allocated for spread-spectrum wireless.

I will not buy any device for the purpose of receiving HDTV. Instead, I will gladly purchase devices that will route packets via the Internet Protocol over that spectrum. In the neighborhood of my house, IP packets will take precedence over HDTV signals.

I recommend that other consumers adopt the Jack Valenti Spectrum Re-allocation. I am talking about massive civil disobedience of the FCC. Remember, anyone who receives television over cable or satellite will give up nothing by assigning higher priority to IP packets. For anyone who misses broadcast television, it would be better to give them taxpayer dollars to subscribe to satellite TV than for consumers to pay the Broadcast Flag hardware tax.

By re-allocating spectrum from HDTV to wireless IP, we can kill two legacy birds with one stone. We can hasten the demise of the phone companies--because with a wireless "last mile" the wireless Internet can replace traditional land lines and cell phones; and we can show Jack Valenti, the movie industry, and the television industry what it really means to "score a big victory for consumers."

Posted Tuesday, November 4, 2003

Mea Culpa

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.

Mary Hodder and Derek Slater, meanwhile, have been keeping their eyes peeled for news and analysis regarding both developments. Thanks, guys. Be back soon.

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 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.'"

More, here.

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."

Apropos articles:

...and commentary:

Posted Friday, October 31, 2003

MacArthur Foundation Supports Copyright Research

...@ (where else but) the Berkman Center.

Play It Again, Uncle Sam

The 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.

Ian Brown, director of the Foundation for Information Policy Research, said: "In the U.S. we are already seeing researchers refusing to undertake research into security measures because of the chilling effect of [the U.S. equivalent], and we are likely to see this happen in Europe."

A tidbit more, from Reuters.

Later: The current status of the EUCD's implementation in the EU nations (thanks to EFFI Vice Chairman Ville Oksanen for the link).

Posted Thursday, October 30, 2003

Diebold, the DMCA and Democratic Speech

Ed Foster:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of the speech, or of the press ... except as needed to allow trademark and copyright holders complete power to control discussions about their brands.

Forgive my minor editing of the First Amendment, but I wanted to illustrate just where we are in the era of the DMCA (Digital Millennium Copyright Act). Nothing has made it clearer just how fundamentally the DMCA threatens our most basic rights than the current flap about electronic voting machines from Diebold, Inc.

Excellent post. The whole shebang, here.

Later: Siva Vaidhyanathan points out that Diebold has been asked to safeguard our Constitution. With high-tech vaults, not with their actions.

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 Case

Denise 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: Seth Finkelstein, via email: "Wow. Static Control is doing better in terms of press with their loss than I'm doing with my win!"

Later #2: Denise, once again: "Even my favorite television program got taken in, and simply parroted (and drew unsupportable conclusions from) one of the worst early stories that appeared."

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."

Later #4: More straight dope, by Edward Felten about another subject entirely: sales of the copy-protected CD about which Alex Halderman wrote.

RIAA Lawsuits a $-making Proposition

Not 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 Exemptions

And 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

A quick round-up, before the day brings us news broadcast flag (potentially) and DMCA rulemaking (certainly):

Dan Gillmor: "This means SCO is basically challenging copyright law itself. Incredible."

Betsy Devine: "Two MIT students, Keith Winstein and Josh Mandel, just set up a music-sharing network that deftly dodges every copyright bullet, or do I mean bully?"

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 Idea

EFF: "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.

I turned to my own Wayback machine, The Filter, to see what we made of the decision three years ago.

The Filter 3.9, December of 2000:

The Filter: The Copyright Office's ruling on exemptions from the anticircumvention provision is now in effect, with a review scheduled in three years. What are its implications?

Wendy Seltzer: In light of the severe restrictions on fair use posed by the DMCA's anticircumvention provision, the Register took an unduly cramped view of her ability to craft exemptions.

The broad refusal to exempt noninfringing uses deprives the public of fair use of digital media--rights to excerpt portions for commentary or parody, to take video screenshots for teaching, or to copy portions for criticism.

I support the exemptions provided, although they do not go nearly far enough. Particularly since censorware is now being forced upon many school users and library patrons, it is critical that there be no obstacles to understanding its operation. Decryption of the blocklists often exposes malfunctions and biases in the choice of blocked sites.

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."

Keep watching Ernest Miller for the scoop. But don't miss this post from Edward Felten, nor this one from Seth Finkelstein.

Later (October 26): LawMeme's James Grimmelmann takes Swarthmore's actions to their (il)logical conclusion:

Here's a link to a site with the memos. At Swarthmore, posting that link would be enough for me to have my Internet access revoked.

Here's a link to a site that links to a site with the memos. Is that wrong? We're talking one mouse click and a few seconds reading more than just linking straight to the Why War site. Would Swarthmore boot me for that?

Here's a link to a site that links to a site that links to a site with the memos. Is three hops enough for you?

Here's a link to a site that links to a site that links to a site that links to a site with the memos. Far enough? I don't know. I mean, with some searching and clicking, you could still retrace your way through the above trail.

Here's a link to a site that links to a site that links to a site that links to a site that links to a site with the memos. Whoops, that's the Diebold home page.

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."

No Kidding

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."

Excellent idea. There are a few others spreading the word. Perhaps together we can rassle up a volunteer or two?

If you have an education background, and are interested, let me know. Seriously.

This Patent-Buster Kicks Ass


Posted Thursday, October 23, 2003

This Patent Kicks Ass


Swartz on Diebold: Get Your Memos Here

Aaron Swartz, on the Diebold copyright claims that have Swarthmore students, and many others, up-in-arms:

Why is it legal and easy to publish this and this but not this?

To recap:
OK: Publishing a government memo questioning the war on terror.
OK: Publishing all Enron sent and received.
NO: Publishing evidence that electronic voting machines are insecure.

Not that it matters, it's only fair elections that are at stake…

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?

Later #3: EFF's response, on behalf of Will Doherty, to Diebold's previous cease-and-desist letter.

Will is Executive Director of the Online Policy Group and EFF's Media Relations Director.

Good News on Good News

Cory notes that Wired will soon have an article out to balance this one on the proposed broadcast flag mandate. In the meantime, here's what they'll likely be writing about.

Later: Mary Hodder beats them to the punch.

Copyright + Civil Liberties No Zero Sum Equation

What 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 MPAAto 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 Hard

The 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:

* To legally own it, legally buy it.

Sorry, kids--no more birthday presents!

* If you haven't paid for it, you've stolen it.

The library will now be closing its doors.

* Copying a movie or CD for a friend is illegal.

Mommy taped ABC's "movie of the week" for Sally's mommy. Now Mommy is going to jail.

* If you wouldn't take a movie or CD from the shelves of a store without paying for it, then why do it online?

It only looks like the song is still online on the "shelf."

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

Two quite wonderful posts by Yale's Ernest Miller, among many (many) others:

CDT's Broadcast Flag Report [hyperlinks, mine]: "CDT's report [PDF] strives for even-handedness, and seems to be adopting the 'speed bump' approach to the Broadcast Flag. In other words, the Broadcast Flag may not be entirely effective, but it might slow down file sharing by the average consumer. While at first glance this seems like a reasonable compromise, it is, in fact, a major concession to those who seek to monopolize and eliminate First Amendment rights to the benefit of copyright holders."

(Electronic) Civil Disobedience at Swarthmore: "Essentially, the students are playing an organized game of whack-a-mole. Each time one of the students receives a notice-and-takedown letter, they move the memos to another student's machine."

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."

Frank Field: "Now here's some propaganda: FCC mulls digital 'flag' to sink TV pirates. This is a spin on the issue that ought to be attackable."

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

From a transcript of the recent Washington Post Q&A session with Senator Norm Coleman (R-MN) on the RIAA's litigation crusade:

Tupelo, Miss.: What's your biggest objection to the RIAA subpoenas? Are you concerned about how easy it is for the industry to get them? how freely they seem to be doling them out? or how consumers can be hit by lawsuits without ever being informed that they are the subject of a corporate investigation?

Sen. Norm Coleman: All of the above.

Do What Comes Naturally

Three more good reads on the afore-mentioned proposed broadcast flag mandate:

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?)."

And finally, should the broadcast flag rules be issued, Princeton University professor Edward Felten advises us on how to read them

First, look at the criteria that an anti-copying technology must meet to be on the list of approved technologies. Must a technology give copyright owners control over all uses of content; or is a technology allowed support legal uses such as time-shifting; or is it required to support such uses?

Second, look at who decides which technologies can be on the approved list. Whoever makes this decision will control entry into the market for digital TV decoders. Is this up to the movie and TV industries; or does an administrative body like the FCC decide; or is each vendor responsible for determining whether their own technology meets the requirements?

Third, see whether the regulatory process allows for the possibility that no suitable anti-copying technology exists. Will the mandate be delayed if no strong anti-copying technology exists; or do the rules require that some technology be certified by a certain date, even if none is up to par?

Finally, look at which types of devices are subject to design mandates. To be covered, must a device be primarily designed for decoding digital TV; or is it enough for it to be merely capable of doing so? Do the mandates apply broadly to "downstream devices"? And is something a "downstream device" based on what it is primarily designed to do, or on what it is merely capable of doing?

Later: via bIPlog's Mary Hodder: The Broadcast Flag: A Public Interest Primer [PDF; CDT].

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.].

Later #2: From University of Ottawa professor Michael Geist: Why We Must Stand on Guard Over Copyright [Toronto Star].

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


...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?

Mary Hodder today asks precisely the right question about the proposed broadcast flag mandate--in short, What's the deal, here?

Writes Mary:

[A broadcast flag mandate means that] on top of having the content industry dictate to the electronics industry what they can make, [as well as] what consumers can do with content...there [are] no benefits for consumers, and in fact many other costs, [such as] the required upgrades and the eventual requirement that everyone move to cable reception.


And 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?

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:

The worst part is: there's no problem. Hollywood has made more money every single year since the last fight like this, over the VCR. Last year was the movie companies' best year since 1959 -- this despite a worldwide economic crisis! Hollywood doesn't dispute this, but they insist that since there *might* be a problem tomorrow, they need to take extraordinary measures today. This is ridiculous, of course: it's like eating your seatmate on the off-chance that your plane will crash.

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 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. 

Otherwise, as Seth Schoen warns, we'll start seeing the ugliest of Hollywood sequels: Broadcast Flag II, Broadcast Flag III, Son of Broadcast Flag...

Oh Boy III

More gleeful blog-spotting. Berkman Fellow Andrew McLaughlin, lately of ICANN, has a weblog. Lookee here.

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:

I argue that, under certain circumstances, academic researchers can continue to conduct and publish certain types of research without much practical risk of DMCA liability.


However, the DMCA does have a non-trivial impact on the conditions under which such research takes place.  Specifically, the DMCA: imposes additional hurdles, which researchers must overcome before engaging in and publishing their research; limits the universe of individuals with whom researchers can freely communicate about their research; requires disclosure of the intention to engage in research to third-parties; affects the content of academic research papers; and limits avenues for publication of the research.

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. 

Writes McCain:

I understand that the content industries have asked the FCC to consider this action to support their efforts to protect highly valued digital television content from being redistributed illegally. I respect their legitimate desire to protect their valuable content. I would be concerned, however, if such protection means consumers must face an endless cycle of replacing their home electronic devices each time the next, incremental piece of the piracy solution is unveiled.

I am writing to inquire how implementation of the broadcast flag proposal would impact consumers -- both immediately and in the future. In particular, I ask you to comment on whether this impact would be mitigated or further exacerbated by future Commission actions to address the "analog hole" issues that all parties agree will persist even if a broadcast flag is implemented. Given these apparent doubts about the effectiveness of a broadcast flag, has the Commission considered whether the anticipated benefit to be derived from such a mandate justifies its potential cost to consumers?

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.

In the meantime, though, here's a special treat from EFF Board Chair Brad Templeton, who responded to the news with an impromptu poem--or rather, pledge (via email):

I pledge Allegiance to the Flag
of the prohibition of copying
and to the monopoly for which it stands
One protocol, under Valenti*, innovation-free,
without liberty or fair use for all.

*Unlike God, there is no dispute over whether Valenti's name can appear in the pledge.

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?"

One Word


Posted Thursday, October 16, 2003

In the Grand Tradition of Carabella

...but also, sadly, on the heels of a new wave of RIAA lawsuits, comes the Great MP3 Caper. It stars Ren Bucholz--one of the most highly EFFective people I know.

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:

[Noting] the agency's general reluctance to mandate the use of particular technologies, [an FCC official] said that "everyone is kind of holding their nose on this one" but the rule will pass unless it would give too much control to the entertainment industry.

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:

The movie industry, the prime mover behind this scheme, posted this FAQ about what it wants here. Read it and then read the truth courtesy of the EFF, which rebuts Hollywood's deceptions point by point.

Then, if you're an American, call your member of the House and U.S. Senators and ask them, politely, to call the FCC on your behalf to stop this outrage from being enacted.

It probably won't do much good, but you should also let the FCC commissioners know how you feel. (I strongly suggest modifying the EFF form letter I've pointed to, because your own words are more valuable.) Keep in mind that Michael Powell's job description, as he apparently sees it, is to carry water for the rich and powerful interests that elected Bush, who appointed him.

This is about control--and you'll have none if these kinds of rules keep becoming law.

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):

EFF today announced that it will defend Ross Plank of Playa Del Rey, California, against a wrongly filed complaint, among the 261 copyright infringement lawsuits the recording industry has filed against individuals.

The federal lawsuit filed against Plank in Los Angeles accuses him of making hundreds of Latin songs available using KaZaA filesharing software earlier this summer. Plank does not speak Spanish and does not listen to Latin music. More importantly, his computer did not even have KaZaA installed during the period when the investigation occurred.

"Whether the error was made by Comcast or the RIAA, the issuance of a federal complaint on such slim evidence demonstrates the serious flaws in the Recording Industry's litigation campaign," said Wendy Seltzer, an EFF staff attorney representing Plank.

"The recording industry's 'sue first and ask questions later,' policy caused this problem," added EFF Legal Director Cindy Cohn. "The RIAA recently told Congress that its members will contact individuals in the future before suing them -- but better yet would be to ensure [PDF] that they cannot violate the privacy of people like Ross Plank in the first place until they have demonstrated to a judge that they have their facts straight."

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.

Opined Cronkite:

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.

Unfortunately, security and liberty form a zero-sum equation. The inevitable trade-off: to increase security is to decrease liberty and vice versa.

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.

Unfortunately, copyright protection and civil liberties form a zero-sum equation. The inevitable trade-off: to increase copyright protection is to decrease civil liberties and vice versa.

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?

Or to put it another way, why do we tolerate in the name of copyright protection what we will not tolerate in the name of combating terrorism?

Posted Monday, October 13, 2003

Oh Boy II

Once again, a promising new weblog. Lookee here.

The DMCA Doesn't Go Nearly Far Enough

...or so argues the MPAA, which appears perilously close to victory in its long battle to persuade the FCC to make the "broadcast flag" mandatory. 

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. 

Writes Seth:

MPAA has been saying for several years that this principle (in the DMCA and prior related caselaw) is untenable. It's been saying so in court (in litigation against file-sharing software developers) and in Congress and before the FCC.

This position is remarkable. Most people in our community consider the DMCA anticircumvention rules to be insane technology and copyright policy, but MPAA still says these rules are insufficient for its needs!

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):

First, the bill prohibits the FCC from moving forward with any new proceedings that impact the ways in which consumers may access or distribute digital media products, aside from the two previously mentioned proceedings. This will negate any future efforts by the big media companies to further expand the ways in which they can control how content may be legally used.

Second, the bill sets ground rules for the FCC's broadcast flag proceeding. It permits the FCC, if it has such authority, to require consumer electronics companies to detect a Broadcast Flag and prohibit illegal Internet retransmission of digital broadcast programming to the public when it detects the flag. However, this proposal relies on a self-certification requirement, so consumer electronics and information technology companies can deploy competing and innovative DRMs that prohibit DTV piracy immediately, not subject to the whims of industry gatekeepers.

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 Boy

Lookee here.

SunnComm Does Some Thinking, Backs Off

SunnComm 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

...and Alex Halderman has violated the DMCA.

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."

Later #6: Slashdotted. Slashdotter: "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.

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."

Later #7: Derek Slater:

I'm glad Alex is feeling confident right now, because I'd probably be scared shitless (or at least talking more like SethF). He has some reason to be confident. I don't see how his paper is a "device," or how a shift key fits the language of 1201(a)(2). And his actions likely don't constitute circumvention if you read the statute sanely, or they fit into an exception, unless of course a judge would like to create some serious First Amendment problems. Security research is probably our best bet when defending DMCA attacks.

But the fact that we're even having this discussion is ridiculous. It's a total joke. Yet I'm not laughing.


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?

Okay, so I've been waiting to use that one for a while, now. The occasion? Simson Garfinkel, a Berkmanite from way back, has joined the blogosphere.

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:

Regarding his own proposal for copyright holder self-help, Professor Nesson asks, "Why is first reaction to it to look for ways to condemn it rather than for ways to support its legality?"

I don't think it's necessarily a knee-jerk reaction, if that's what he means. Myself, I'm somewhat closer to where Professor Fisher seems to be at on this issue, as expressed at the HLS discussion: "I don't think it would be terrible to move in [Professor Nesson's] direction. Actually it would be better than where we currently stand. But it would be unfortunate, on balance. Better than where we currently are, but far less good than the place we could be."

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 (October 2): Ernie Miller writes to ask, "What would it take for Congress seriously to consider adopting a system like mine [PDF]?"

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:

In my view, the peer-to-peer authors have a natural advantage in this arms race, and they will be able to stay a step ahead of the copyright owners. Copyright owners will be forced either to give up on the strategy of narrowly targeted denial of service attacks, or to escalate to a more severe form of denial of service, such as one that crashes the target computer or jams completely its Internet connection. I understand that these more severe attacks are currently illegal, and would not be legalized by the Berman Bill, so such an escalation would not be possible within the law even if the Berman Bill is enacted. I conclude that the Berman Bill as written is unlikely to do copyright holders much good in the end.

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 Use

In 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."

(Link thanks to Ernie Miller, who has long argued [PDF] for a redefinition of copyright that asserts control not over the copying of a work, but rather, its public distribution.)

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":

MACGILLIVRAY: So the atmospherics of this conversation often take the form of Professor Fisher proposing his plan, and you critiquing and you critiquing and bringing up your plan. So I wanted to really push you, at least a little bit, to positively state your plan before Professor Fisher.

NESSON: All right. I'm not against – Terry – Terry's – he'll speak for himself, but his vision of the future is one that takes into account the downsides of the present system, and the positive aspects that Internet could offer a world of much more open information. His problem, as far as I see it, is how he gets there, and that means giving up, to a large extent, on where the recording industry, the movie industry now is in terms of the kind of protections they have.

My particular interest at the moment is in techno-defense, specifically the ability of the recording to protect its material online by a combination of legal attacks using the tools that the courts and the Congress are capable of offering. Spoofing. If you go to KaZaA today and you try to download Justin Timberlake and the Black Eyed Peas "Where is the Love," which is hot, hot, hot, you will get nothing but spoofs, and you can try very hard. Actually, I won’t say absolutely nothing but spoofs. After 45 minutes of trying, I finally got a real one.

ZITTRAIN: Is it – that's leading to Charlie's law review article "Where is the 'Where is the Love'?"

Let the Music Pay IV

This 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.

Derek Slater: "What are the objections? The EFF raised many last year in response to the Berman bill:

'The proposed law amounts to government-sanctioned vigilantism -- copyright owners are given the power to ignore the law in pursuit of those that they decide are guilty. There is no warrant requirement, no trial, no prior notice to the targets, no due process, and very little recourse for innocent bystanders caught in the cross-fire.'

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."

Charlie Nesson:

[Here we are] five years [after Napster, with] iTunes and MusicMatch and songs for 99 cents or less, open to any artist with an indie label. At last the business model is changing. Is it time for the riot to end? Time to re-establish order with a reformed marketplace? Do you want iTunes and its PC variants to succeed? Or would you rather see the riot continue until desperation forces changes in the fundamental architecture of the net, or of the law? Is the idea to argue against any means of protecting the commercial value of an artist's work until the current system totally breaks?

For some the answer to this will be yes, the vision of a global tax and royalty system appearing to them to be the greener grass. This, I admit, is amazing to me. The very idea that those who have loved the net should be striving to establish a global government-run system of net administration complete with taxing power over Internet facilities and ability to say what creator should be paid what for what content is, to me, mind boggling. Cries for caution based on the Canadian experience seem to go unheeded. Why does this path seem more attractive than one which builds on the capacities of the net itself for self protection?

The service I describe is for artists. It offers them a limited protection during the initial crucial period of a new release. At the very least it is arguably legal. Why is first reaction to it to look for ways to condemn it rather than for ways to support its legality? No doubt this reaction is rooted in hostility to the historical greed of the labels, but times and business models are changing in just the directions those who have been calling for change have wanted. The interests with which this artist's protective self-help service might potentially interfere are (1) the infringing seeder's interest in being able illegally to serve the artist's content through his peer-to-peer client; this is not an interest that deserves the law's protection; (2) the infringing seeder's interest in serving up other content through his peer-to-peer client at the same time he is illegally serving up the artist's content; this is not a matter of any economic consequence to the seeder, thus causes him no damage, and moreover is easily and immediately remedied by him; (3) the would-be downloader's interest in illegally getting the artist's work from the seeder, not an interest the law should respect; (4) the would-be downloader's interest in getting other non-infringing works from the seeder during the period in which the seeder persists in illegally serving up the artist work; this seems insubstantial unless the seeder is the one and only source of the desired work on the p2p net; no one counts on getting a particular work from a particular p2p source.

John Palfrey, meanwhile, is tracking responses to Professor Fisher's proposed compulsory licensing scheme--now covered in McPaper, no less.

Posted Saturday, September 27, 2003

Playing with Traffic

Check out this Alexa graph comparing traffic at the EFF and RIAA websites for the last six months.

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:

Artists have been helpless to prevent their new releases from being illegally copied and freely shared on the peer-to-peer networks. All to often, even before the store release-date of a work, someone will rip a copy of the work and put it in the shared folder of a peer-to-peer client like KaZaA, thereby planting a seed which will rapidly and freely spread. Some artists feel that this process of rip-seed-share damages their ability to realize commercial value from their work, and that, to date, they have had no effective way to stop the damage.

Against this background, suppose the following service is offered to artists as a means to protect at least a portion of the commercial value of their new releases. Treat this service as hypothetical, although some companies may be offering some forms of it without talking much about it. The service:

  • watches the peer-to-peer networks on behalf of the artist-client who wants to protect a new release to catch the first appearance of a copy of the new release illegally posted to an open network;
  • finds it fast enough to enable the service to get in queue to download it before anyone else; 
  • downloads the copy of the new release from the infringer in a manner that effectively competes with others trying to get it;
  • at the same time causes a notice to be posted in the infringer's traffic window politely requesting the infringer to remove the work from the publicly shared folder.
Assume that as a consequence of this service those who try to download the work from the infringer's shared folder find it difficult or impossible to do so, and those who put the artist's work in their publicly shared folders are induced after a while to remove it. Assume that this service, applied to each new seed, is maintained up through the store release date and for a few weeks thereafter, then discontinued, and that during the period in which the service operates it either significantly slows the process of proliferation of free copies on the peer-to-peer networks or stifles such proliferation altogether, with the result that the artist can realize commercial benefit from the new release during the time period most crucial to its commercial value.

(a) Is this service legal? If not, what specifically makes it illegal? Who would sue whom?

(b) Irrespective of legality or illegality, is this service desirable, from the artist's viewpoint, from the viewpoint of the peer-to-peer networks, from the viewpoint of those who would like to preserve the integrity of the Internet as a relatively unregulated open-end-to-end environment? Is anyone damaged?

    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:

    Charlie: (a) Is this service legal? If not, what specifically makes it illegal? Who would sue whom?

    Ernie: Considering the means with which most filesharing software operates, in many cases, this may act as a denial-of-service attack. As such, it might constitute a federal crime under the cybercrime provisions (18 USC 1030(a)(4)?), it might also subject the perpetrator to a tort.

    However, in the case of a tort, I don't think suing would be a good idea generally, because the perpetrator would then be subject to the copyright provisions. Still, if the attack was mistaken (the bots hit the wrong file name) you could be in trouble. I think it unlikely the government would get involved, but if enough mistakes were made, or the wrong targets hit (companies with copyright-infringing employees, for example), the government might get involved.

    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:

    Of course, big copyright owners aren't the only people allowed to use subpoena-bots. Virtually everything that anybody writes is copyrighted, so this subpoena power is available to every writer or artist, even down to the humblest newbie blogger. Want to know who that anonymous critic is? No problem; send your subpoena-bots after them.

    Posted Wednesday, September 24, 2003

    Happy (Belated) Birthday 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,

    • without harming technological innovation and/or the Net;
    • without harming people and/or violating their rights;
    • without harming the creators, producers or publishers of creative works; and
    • without (further) harming copyright law by (further) upsetting its intended balance.

    Or, as a subset of the above questions, you may have been asking yourself

    • whether the RIAA's legal campaign against P2P users is in any sense a rational or justified approach to resolving the current conflicts, and
    • if it isn't, what are the rational approaches, and finally
    • what approach is EFF advocating?

    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 CenterLawMeme, 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.

    How unpretty?

    CAPPS II proposes gathering information from both government and commercial databases and using the information to "tag" each passenger with a color-coded score.

    • "Green" means that you do not appear to pose a threat to safety and are free to board the plane.
    • "Yellow" means that you appear to pose a potential threat and must undergo further security checks before being allowed to board.
    • "Red" means that you are likely to pose an "imminent threat" to the physical safety of the people on the plane and will not be allowed to board the flight.
    If you are flagged as red you may not only be denied boarding, but also undergo police questioning and possible arrest.

    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 Fun

    Sarah 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?

    DW: Hmm. Some of my hot button words/phrases are: "Intellectual property," "music pirates," "post-modernism," "terrorism," and "President Bush."

    DG: Please remove that disrespectful reference to the President.

    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.

    Joseph Reagle, meanwhile, temptingly advocates replacing "copyright" with "intellectual monopoly right." Wonderfully accurate. But, sadly enough, would require three elevator rides--minimum.

    Posted Thursday, September 18, 2003

    A-Records Gone Wild

    Okay, so I had hoped to feature something by the quietly brilliant Seth Schoen, on the fine mess VeriSign has gotten itself into. Seems both feature and mess are still brewing.

    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.


    While the DOC and ICANN's approaches to Internet governance have been criticized on other grounds, neither has contemplated giving VeriSign unlimited discretion to use .com and .net in whatever way VeriSign prefers.

    ...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.

    Facilitating Spam: [Some] anti-spam software checks for the existence of a sending domain as one indication that a message is likely to be spam. Since the domain is, under the Site Finder program, now likely to appear to exist, such anti-spam software will be tricked into accepting the e-mail.

    Creating Privacy and Security Risks: The default behavior in most applications is that a typo would usually cause a local error, rather than causing the incorrect information to be transmitted over the network at all; VeriSign's decision has altered the behavior of all this software. In effect, millions of users have been tricked into communicating with VeriSign by mistake.

    Masking Error Conditions, Confusing Software: [Some] applications distinguish between a DNS NXDOMAIN and a TCP connection refused error. All applications which draw this distinction will lose this useful information as a result of Site Finder. As a result, some software may conclude that no error exists when, in fact, something has gone wrong. It may be difficult to predict in advance exactly which software will be impaired or confused by this change.

    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 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, Hear

    EFF'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 Legs

    Still finding them, here @ EFF.

    Here's where I would visit for updates on breaking developments today, were I you.

    Posted Tuesday, September 9, 2003


    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.'"

    Later #4: A nascent fund for Brianna, @ Datatype, via Cory: "The RIAA Are Dicks. We Apologize."

    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

    UserFriendly's Personal File-Sharing Amnesty Application Form (via Frank):

    "You Have (Check All That Apply):

    • Life Savings How Much ______
    • Seizable Assets Total Worth ______
    • No Understanding of the Law
    • Only a Vague Grasp of My Rights
    • A Proctologist



    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.

    Post script: Thanks, guys, for the welcome back. Missed you.

    Posted Friday, September 5, 2003

    Before You Bite that Carrot

    Bill Evans has an important reminder in this brief, inflammatory bit on the rumored RIAA amnesty program: The RIAA has no authority to protect you from criminal charges.

    Indeed. The RIAA represents the recording industry, not The Law--despite efforts like this one to blur the line between the two.

    Gigi Sohn, meanwhile, advises that prospective "amnesty form" signers read the fine print. Better yet, ask an attorney to do so.

    Bonus: Two others telling cautionary tales: Mary Hodder and Edward Felten.

    Posted Thursday, September 4, 2003

    While You Were Out

    Yep, I'm back. And yes, it'll take me some time for to catch up with everything that's been going on over the past month or so. It's been some kinda fair and balanced month, eh?

    More to come, as soon as I am able.

    Post script for the curious (and curiouser): My name is still Donna Wentworth. I just happen to be a happily married Donna Wentworth :-)

    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

    I can't linger, but also can't resist pointing you here: Wendy Seltzer v. Howard "peer-to-fear" Berman, on ACCOPS [CNN].

    While I'm here, a belated thank you to Ernie Svenson for this kind note. It seems I was inspiring Ernie just when he was inspiring me. I like how that works.

    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 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

    Denver Post:

    If a federal agent asks a Boulder librarian for a list of all the books checked out by John Q. Public in the last month, the answer will be "Records? What records?"


    Before the decision was made to delete the information after books are returned, all files would be kept for weeks or even months.

    Under the Patriot Act, libraries would have to make those records available to federal agents.

    That possibility, Hudson said, troubled librarians and forced them to examine record keeping. They found it could be tightened.

    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 #2: FBI Targets Net Phoning [Declan McCullagh, CNET] and Lawmaker Wants Limits to Spyware [Lisa Bowman, also CNET].

    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

    Happy Birthday

    ...Doc. Thank you for the many gifts you've given us this year.

    For PC Magazine Readers

    ...directed here by John Dvorak, following are the posts he references on the Berman-Conyers bill (ACCOPS, PDF):

    Mr. Dvorak asks a question about weblogs and politics with which many of us have been grappling: "[Where] is the leverage?" Just how influential are weblogs in politics, and in what ways?

    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 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.

    In the meantime, Derek Slater's aggregator is superior one-stop shopping for news copyfight; it's got considerably more signal than noise.

    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

    Here if you're in San Francisco, here if you can't be.


    No, Not Really

    RIAA 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

    No, Really "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 #2: Wendy Seltzer's RIAA subpoena round up (via Alex).

    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."

    Update #4: How Not To Get Sued By The RIAA For File-Sharing (And Other Ideas to Avoid Being Treated Like a Criminal).

    Brace Yourself II

    Michael 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...

    oooof. phweef. I'm so sorry, I just can't HA HA HAA HAAA HAR HAARRRR HU HO HOOO heheehehheeheheheeheheee...

    *pant* *gasp* Oh f***k...


    It hurts because it's so damn funny. And it's only funny because it hurts.

    What he, uh, tried to say. Go ahead: take a look.

    Posted Wednesday, July 23, 2003

    Later, Aggregator

    It'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 II

    EFF'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."


    Dan Gillmor, on the MPAA's "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 Copyfight

    Doc, over @ Linux Journal:

    We can't change conservative value systems. But we can change the emphasis on what we conserve and why. That's why we need to figure a way around the Property Problem too.

    We met that problem head-on and lost, with Eldred v. Ashcroft, a case that challenged the Sonny Bono Copyright Term Extension Act. [...] On January 15, 2003, the justices struck down the challenge by a vote of 7-2. Justice Ginsberg wrote the majority opinion. Justices Stevens and Breyer wrote dissents.

    A loud hubbub followed. Somewhere in the midst of all that, I did my own thinking out loud on the American Open Technology Consortium (AOTC) site, suggesting the reasons for Eldred's failure had more to do with language than with politics and law:

    I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court...

    Watch the language. While the one side talks about "licenses" with verbs like copy, distribute, play, share and perform, the other side talks about "rights" with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe and steal. This isn't just a battle of words. It's a battle of understandings.

    To my surprise, Professor Lessig found my idea convincing.

    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."

    Questions, Anyone?

    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."

    Brace Yourself

    ...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.

    Id. at 1-2.

    Uncle Charlie: Infinite. Got that?

    Pete: You mean, we should spend all our tax money hunting down parodists with attack helicopters and night-vision scopes? And a copyright holder should be able to kill infringers and sell their children into slavery?

    Uncle Charlie: More or less.

    Pete: Whoa. Cool.

    When the Copyright Term Extension Act was initially being considered for enactment, the Senate Judiciary committee considered a variety of substantive and practical reasons as to why the extension of the act was not only beneficial, but also necessary. Music industry representatives had a unique interest in the CTEA and gave the majority of the testimony offered in support of its enactment. Their interest stemmed from the arguments that songwriters are entitled to the copyright extension to protect their creative property.

    Id. at 2.

    Pete: Gee, Uncle Charlie, aren't you glad that the music industry representatives were so selfless to do all that hard work on behalf of other copyright holders? And we know that music industry executives always have the interests of songwriters in mind.

    Uncle Charlie: Shaddap, kid.

    The fact that artists and songwriters live significantly longer than they did when Congress last substantially altered the copyright term was important to the congressional decision to adopt the extension. Life of the author plus seventy years is now necessary to provide the same level and extent of protection previously given under the former extension period, which has been rendered inadequate with the increase in life expectancy.

    Id. at 2.

    Uncle Charlie: See, it used to be that authors only lived until thirty, forty, years after their death, max.  But these days, with cryogenics and the Atkins diet, some people are living their lives plus fifty, even sixty years. The way Bob Hope is going, he may hit life plus eighty.

    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 Picks

    Sorry 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.

    With each song was a list of screen names and Internet Protocol, or IP, addresses of individuals who were offering it for file sharers around the world to download.

    Nagi wasn't looking for a free copy of "The Eminem Show" CD. Instead, the project manager for BayTSP Inc. of Campbell was demonstrating how his company uses its Internet sleuthing technology to help major record companies and movie studios hunt down copyright infringers.

    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."

    ReplayTV agrees to make its consumer-friendly product Hollywood-friendly. Meanwhile, TiVo for radio is born.

    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

    ...chronicled here; it's Lawrence Solum and C.E. Petit, exploring/illuminating the differences between IP-focused academics and IP-focused practitioners on copyright(s).

    Petit: "The only way in this context to equate 'rent-seeking' with 'bad' is to treat intellectual property as somehow inherently 'inferior' in the right to seek rents to personal or real property."

    Solum: "The arguments that I have been making about the differences between tangible and intellectual property are elementary and well-established. To an academic, these points seem obvious, and the mistakes that Petit makes in responding to them are simply the mistakes of someone unfamiliar with the economic literature on intellectual property."

    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

    Edward Felten, reacting to the introduction earlier this week of the Author, Consumer, and Computer Owner Protection and Security Act of 2003 (ACCOPS; PDF):

    The general approach of this bill, which we also saw in the Hollings CBDTPA, is to impose regulation on Bad Technologies. This approach will be a big success, once we work out the right definition for Bad Technologies.

    Imagine the simplification we could achieve by applying this same principle to other areas of the law. For example, the entire criminal law can be reduced to a ban on Bad Acts, once we work out the appropriate definition for that term. Campaign finance law would be reduced to a ban on Corrupting Financial Transactions (with an appropriate exception for Constructive Debate).

    Berkman Affiliate Alex Macgillivray: "The bill has a number of provisions aimed at P2P file-sharing. [...] I'd like to focus on two...:

    First, the bill criminalizes the distribution of file-sharing software without warnings prior to download that the software "could create a security and privacy risk." The criminal penalties of fines and up to six months in prison would apply to all who knowingly offer the software without the warnings. It would also require obtaining a person's 'prior consent' to the download after the warning. I'm not sure what 'prior consent' would constitute (prior to what?). As with much of the bill, this section seems overbroad and horribly heavy handed. Covered software includes all software that 'enables 3rd parties to store data on' the computer running the software. Are store and forward protocols / servers covered by the bill? What about web browsers and their cookie and cache files? Email clients? Furthermore, it forces certain changes to current distribution methods to take the warning and prior consent into account. For example, under the bill, you would risk a six-month sentence for offering LimeWire for download over KaZaA.

    A second interesting part of the bill is the criminalization of the falsification of domain registration records. This seems designed to address a common complaint of difficulty in contacting people responsible for different domains. Again the bill is heavy-handed. If you provide false information with intent to defraud, you could face five years of jail time. However, the spirit of this section doesn't trouble me as much as the others, provided safeguards are in place to protect pseudonymous speech. So, we need registrars who will act as trusted intermediaries to keep registration information private if the individual requests it. These registrars could then give up the information through legal process with enough warning given to the subscriber so that she could move to quash the process if invalid (but see 17 USC 512(h)).

    Bonus: Via Congressman Berman's site, the official press release, floor statement, section-by-section analysis and bill text (PDF).

    Bonus #2: Two more on Berman-Conyers:

    Slam-Dunk II

    This 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?

    A: A million great minds, including Siva Vaidhyanathan, Jamie Boyle, Jessica Litman, Pam Samuelson, Mark Lemley, and many others. But turn first to the blogs.

    Q: I read somewhere that you are driving an Audi TT. That's a car for girls. Okay, that is not really a question, but someone had to break the news!

    A: Most great things in the world are for girls. I'm happy to embrace as many as I can.

    Posted Thursday, July 17, 2003


    This new article about the Illegal Art exhibit by Derek Slater over @ Creative Commons--quite irresistably entitled, "Take Another Little Piece of My Art." A snippet:

    Creative Commons licensing is in one sense a pragmatic solution to copyright's ills. Artists who want to license their works can easily express their preferences in a way that others can identify and trust. In this way, Creative Commons licensing has enabled collaborations that might otherwise require a lawyer and a dozen inquiries. For example, Colin Mutchler submitted "My Life," an acoutic guitar song, to Opsound, a music registry that requires Attribution-Share Alike licensing; Cora Beth, a total stranger to Colin, then layered a violin onto the song to make "My Life Changed." No copyright lawyers were consulted—or harmed—in the process.

    In another sense, Creative Commons licensing is symbolic. It shows that there are alternatives to the current legal regime are possible. Artists can create a world where the law meets their expectations about legitimate appropriations—where museums and sterile McMash-Up contests aren't the only places to see new kinds of art.

    ...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."

    More on the proposed legislation here, here and here; information about Congressman Berman's previous peer-to-fear proposals here and here.

    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?"

    Later #2: David Sklar: "Another bug in the legislation: 'Whoever knowingly offers enabling software for download over the Internet' must warn any downloader that 'it is enabling software and could create a security and privacy risk for the user's computer; and obtain that person's prior consent to the download after that warning.'  However, the bill defines 'enabling software' as 'software that, when installed on the user's computer, enables 3rd parties to store data on that computer, or use that computer to search other computers contents over the Internet.'

    So, presumably software that lets third parties store data like cookies is included? And any server that allows any kind of upload or file transfer (HTTP servers, SMTP servers, etc.)? And any client that downloads data from one of those servers?"

    Posted Wednesday, July 16, 2003

    Metallica Fights for Ownership of E, F Chords

    I'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?:

    POSTER #1: This will completely destroy not only music but culture, as we know it, as well. I mean, what happens if Stephen King trademarks the word "IT"?

    POSTER #2: We must act decisively. I will start by emailing a form letter to the President about destroying the DMCA.

    POSTER #3: The Englobulators of the Vinyl Arm from the planet Metallica are attacking. RAISE SHIELDS, RAISE SHIELDS.

    POSTER #4: Wait a sec, does the DMCA even apply to Canada...or trademarks?

    POSTER #5: Shut up, Poster #4. I envisioned that this day would evenutally arise and it is for that reason I have created a program to secretly spawn every possible combination of two chords and, with the help of Larry Lessig, have already placed them under license of the Creative Commons. We are saved.

    POSTER #6: No way, Poster #5, I did that first in 1989 on my Atari and already copyrighted them under my own open source license. I did it first. Me, Me, Me. I win!

    POSTER #7: Um, isn't this an obvious false news story from a website, which specializes in making false news stories?

    POSTER #8: Poster #7 works for Microsoft. Get him."

    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.


    Here's a treat: MIT's Frank Field has two consecutive days of especially good linking (and thinking) under his belt.

    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

    If you're already reading this [reg. req.], you might also want to check out this and this.

    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-Sharing

    No, 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


    My 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: a trio of quotes from Blogaria:

    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."

    Howard Dean, over @ Larry's: "The Internet might soon be the last place where open dialogue occurs."

    ...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.

    Blogaritaville back.

    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 (July 14): Another accessible piece, this time on copyright extensions v. creativity.

    Later #2: And the meme goes on...

    Posted Thursday, July 10, 2003

    Brand New Babe

    Now 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.

    Thanks to Dave, Alex and many other Berkmanites, for bringing a smile to my face today, too.

    Later (July 11): Aww, shucks..Jenny, thank you. And you, Bruce. And everyone who sent me an email yesterday & today. I'm overwhelmed.

    The Last Mile

    The 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

    Two More

    ...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

    Via Wendy Seltzer, three quotable moments from the Illegal Art panel discussion in San Francisco this past Thursday:

    Kembrew McLeod, the gentleman who trademarked the phrase, "Freedom of Expression,": "The problem was not that the PTO found a moral objection to trademarking FREEDOM OF EXPRESSION, but that I hadn't capitalized the phrase right."

    Lawrence Lessig: "Fair use isn't freedom. It only means 'you have the right to hire a lawyer to fight for your right to create.'"

    Rick Prelinger: "What's radical is not appropriationist art, but sending someone a bill when you're quoted in a transformative way."

    Also worth the visit:

    Shout Out

    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.

    Finally, from the "wish you were here" files: thank you for the (also memorable) welcome back, Chris.

    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?"

    "You can stop a college student in his tracks by sending him a letter on college stationery, not on RIAA stationery, threatening to cut off his high-speed internet access in his dorm. He's not going to wardrive around every night, especially in the Northeast, where the weather is much worse."

    "So you're saying the Trusted Computing Alliance is developing Blubster?"

    "There is no way, no matter how much you shake the lapels of the computer in front of you, to make it read the book aloud."

    "These are people that can't add new paper or toner to their printers." (looks around the room) "Not these people specifically."

    "Oh, come on, taxi cab meters are trusted systems. In Boston, they have a little dollop of wax with the seal of King Charles to keep the driver from poking inside. Is it so awful that taxi cab drivers can't see the inner workings of the box? Free the meters!"

    "Isn't it kind of wasteful to have this kind of arms race? Where the one guy is trying to pile as many mattresses on top of something while the other guy is pulling mattresses off? It's a waste of mattresses."

    "It's a trusted microphone. It's securing your speech as against all eavesdroppers."

    "[On the BSA]: Yeah, they're the drop-a-dime people who say if you're disgruntled at your job, turn your boss in for pirating software and collect a reward. It's the American way."

    "My head is spinning! First, we were talking about copyright and
    documents, and now we're talking about Microsoft!"

    "So this is a vision of KaZaA where we're all sharing needles and we don't know what's clean and what's not."

    "If the record industry promised to listen to every song and enjoy it, that might make a difference."

    "My iPod's better than your iPod, so there."

    "It would be like trying to calculate now the loss to the buggy-whip industry from the advance of the automobile."

    Second, a series of nicely articulated observations on the day's sessions:

              Making Unthinkable Lawsuits Thinkable

    Now, in terms of lawsuit targets, the RIAA would still need to be suing individual sharers. It'll be hard to single out _major_ infringers, because you can't get your hands on indexes by source. The best the RIAA can do is watch for a long time and point to people whose computers were repeated sources of traffic, but even that may not point to people who are disproportionately large sharers, just people who are close to the RIAA in the network. The public-relations hit from suing individuals who didn't intend to share particular files, only to be part of the network as a whole, might still be extreme. But they're getting better at making unthinkable lawsuits thinkable.

    Copyright Infringement is a Middle-Class Crime

    Copyright infringement is a middle-class crime. The rich just pay up; the poor have more pressing concerns. You see a similar effect in sampling: P. Diddy ponies up to get the rights to samples, while judgment-proof minor rappers who distribute their works outside of the "official" system completely ignore the legal issues. It's the people in the middle for whom copyright concerns are a major irritant.

    U2 v. Negativland: On the Quality of Targets

    Negativland hasn't been sued since "U2" because they're tuned into the embarassment potential. Anyone who sues them is going to regret it, because major copyright holders have much much more to lose than Negativland. Nobody wants to be portrayed as the corporate heavies trying to censor a spunky lil' band, least of all people who pride themselves on being "good guys." (U2 has been a frequent target of Negativland, but their do-gooder image is too valuable to tarnish by playing censor.) Another way of putting things is that Negativland is both too small and too large to be worth squashing. Too small because the irritation they create, though large, doesn't cut much into Big Media's bottom lines. And too large because the irritation they could create, if cornered, _could_ cut much into those bottom lines.

    A Partial Shortcut Around Copyright

    If I use a compulsory license to make a cover version of a copyrighted song, and then that cover version gets out on the peer-to-peer nets, what happens to the compulsory fee when zillions of people make zillions of copies? If I personally owe the fees, then I'd appear to be liable to such a deep extent as to kill of compulsory license as long as peer-to-peer lives. If only the people making the copies owe the fees, then, until the rights societies start going after file-traders, there's a partial shortcut around copyright.

    Larry Lessig as PowerPoint Virtuoso

    Larry is one of the most extraordinary PowerPoint virtuousos I've seen. It's not just the white-on-black typewriter font. He uses phrases as anchors into his talk: the slides are signposts that let you glance up and pull out key words and ideas from his talk. He's also brilliant at taking slides he's previously shown and modifying them to put new twists on those ideas. At the DRM conference, he changed background colors to show the expansion of copyright; today, he's played with the color and placement of text. When he flips through the slides showing copyright terms in various years, it's almost an animation. And when he's talking about old films decaying and disappearing, he uses a blank black slide.

    What can I say? Thank you, James.

    Bonus: Other voices from ILAW: Lisa Rein, Frank Field, Aaron Swartz, Jim Flowers and David Hornik.

    Posted Tuesday, July 1, 2003

    Blogging ILAW II

    As 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.

    Also see: Aimster Loses! and Hamidi Wins!, both from James Grimmelmann @ LawMeme.

    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:

    Larry: The objective in this session is to think about how to think about all this. Let’s go back to cyberspace circa 1993. The claim then was that cyberspace was "unregulable." I made up this word, but it's sticking. 

    There is a meme propagated through two member of the EFF: John Gilmore and JP Barlow. Wrote Gilmore: "The Internet interprets censorship as damage and routes around it."

    Wrote JP Barlow: "Governments of the Industrial world…you have no sovereignty where we gather." 

    Claim was that this space would be radically new. Something puzzling in this configuration: "It can't be regulated." Puzzle: If the government can't regulate in cyberspace, why do you need the EFF?  

    Let's think more systematically about this; there are different modalities of regulation. This red dot is you. You are regulated by the law. If you drive over the speed limit, you will have violated it. Ex ante rule. Ex post punishment. The state executes the punishment. 

    Then there are norms. Example: I don’t wear a dress to work. Why not? Not many people would take my class anymore; and they'd look at me funny. I'd be deviating from the male norm. Society will then punish you in small ways.  

    In Calif., there is the no-smoking norm. You are punished in all sorts or ways if you smoke. I like that, by the way. I support that norm. Ex ante rule. But punishment is from society, not the state. 

    Third way to regulate: the market. If I start singing, you will quickly pay me not to. All of us think about the way the market values us. 

    The market doesn't work independently of norms or the law. You can't buy and sell sex because the law says you can't. The market regulates differently; if the market says gas costs a certain amount, your driving will be constrained by it. 

    Architecture is such a constraint. If you are bored in the lecture today in this classroom, you can't look out the window. They put the windows up high; you can't see out of them. We professors don't want to make it easy for you to look out there. I was worried about this when they debated introducing wireless at Harvard; I didn't want to have to compete with the Internet. I advocated for the architecture that would benefit me. Zittrain, on the other hand, doesn't worry about that at all. 

    This is built into the technology of cars. The cars won't go faster than a certain number of miles per hour; the speed is constrained by the "architecture.”"

    So these four things regulate behavior. Of the four, law is only one. Lawyers hate this, that they are only one of four regulators. But there's a caveat: laws affect these other things that regulate. 

    For example, the government can work to affect norms. The government ran ads to demonize/stigmatize smokers: "smoking kills."  Law: the government imposes taxes on cigarettes.  Architecture: the government considered requiring that less nicotine be put in cigarettes, making them less addictive. 

    The government is thinking all the time about this trade-off among regulators, about finding out what mix will be most effective. These are the choices modern regulation is about.  

    Let's think about this a bit more: the architecture as a regulator. Napoleon the III didn't like protesters in Paris. They clogged the tiny roads and effectively shut down the city. How did he get rid of the crowds and protests? By making the roads wider. 

    In the US, a man named Robert Moses was involved in development projects. He had a personal desire to see people segregated. But he had a problem: the Supreme Court said segregation was illegal. So Mr. Moses turned to architecture. He built roads with low bridges, so that they would hamper public transportation to the public beach. This meant that people who relied upon buses to go to the beach--African Americans generally--generally wouldn't go.  

    This regulation is invisible. When you go over a speed bump on the highway, you know you're being regulated. That one is more obvious. But there are many more subtle forms of architectural constraint. [...]

    Participant: Didn't you say that in architecture, God is the enforcer?  

    Larry: Well, what I mean is there is no one there to make you comply. The regulatory effect doesn't rely on individuals doing anything; it's embedded in the architecture. I'm not saying that God designed the building, except perhaps in some deeper sense.  [Laugh.]

    Participant: Is there a point at which you can't architect against what people are about; against their human nature? 

    Larry: There is a great MIT T-shirt: "186,000 miles/sec: Not just a good idea, it's the law!" So yes, there may be "laws of nature" in this regard. 

    Participant: You seem to put law above the other forces…is this an argument for law's primacy? 

    Larry: You can always talk about the indirect sense in which each regulator is more powerful...I would argue that in the normative sense, the law has primacy.  


    Participant: Are libertarians being brought to see market coercion? 

    Larry: That touches what I wrote in my first book: a chapter called "What Declan Doesn't Get. " Don't do this. It begs a slew of articles, entitled "What Larry Doesn't Get." Bad idea. 

    Seriously, we have a long history of liberals on this. John Stewart Mills talked about restrictions on freedom of speech. This was a concern not about law but about norms.

    The diversity of the regulators at our disposal is recognized differently in different parts of the world. Americans like to think we don't think about norms. That is bullshit. Of course we do.  

    What is cyberspace? Cyberspace is an architecture. This is what Jonathan was describing this morning. TCP/IP is basically a data-shipping protocol, but certain consequences follow from this architecture. You can't know certain things: who sent it, what is in it, and where it's going. This produces the conclusion that libertarians were so excited about--that the Internet is "unregulable."

    Built into the architecture is relative anonymity. You can't regulate. Can't "market-ulate." Before Netscape devised cookies, you went to Amazon, and it would forget who you are. They had a strong market interest in fixing this "bug."

    To libertarians, this bug was a feature. Conflict with what business and government would like the Net to be. Let's take an example.  

    Say you have a government w/a rule that says you can't give porn to kids. In the US, these laws are okay, so long as adults have access to the material. Let's think about this regulation in the context of real space. 

    In real space it's relatively hard to hide that you're a kid. Put on a trench coat, wear stilts. Age is self-authenticating in real space. Too, kids don't have that much money. The market works here. This rule is relatively effective. It is sometimes broken, but it can work.  

    If on the Internet, no one knows you're dog, it's also true that on the Internet, no one knows you're a 12-year old dog. 

    This kind of rule on the Net is much harder to enforce. 

    The mistake that Net anarchists make is "is-ism." They look at the way the Internet is, and believe that that's the way it will always be. This is wrong. 

    You can change the architecture of the Net. You can layer on technologies, make changes to the code. Both the government and the market have the incentive to change the architecture. Example: cookies. Puts a tag on your computer. A clever, tiny change but with dramatic consequences.  

    The FTC investigated a bunch of claims RE ads. Never accept a Berkman Center cookie. But accept from the Stanford Center for I & S. But you don't know that Z and I have conspired. We're going to share your data. 

    Second technology: sniffing technology. Early in my history here at Stanford, I set up a Morpheus server. I got a frantic call from the network administrators: they shut it down, citing "illegal activity."  

    I said it's not yet illegal in the United States to share one's files on a server. 

    Then: IP mapping. You become "relatively identifiable." 

    This is not comprehensive, by any means. But we can see that we are now increasingly able to do the three things we were originally unable to do. 

    [...participant asks Q about cookies...] 

    Larry: Is the cookie a violation of any rule or law? The answer: obviously no, at least in the US. But the point here is about unintended consequences. There are bad consequences to seemingly benign technology choices.  

    DoubleClick is a good example of a company learning to live in the digital world. They got a lot of criticism, questions. What did they do to respond to the questions? They adopted a strong privacy policy. And the FTC makes sure they live up to their promises.  

    My point in picking on cookies is to get you to see that tiny changes can radically affect the architecture. 

    Participant: I"d like to hear yours and Jonathan's views on spam, in terms of architecture. 

    Larry: What would we do if we solved the problem of spam before lunch? We won't, but I am going to shelve this to address later on.

    Second participant: What about Gilmore and Barlow? [...more I couldn't catch…] 

    Larry: They were not naive. Barlow has said he wanted to rally folks on their side. Both are well aware of this. 

    Problem of spam: cyberlibertarian types don’t want government regulating spam. In the old days, there was a strong norm against spam. No longer.  

    Enter America Online. You can't use norms to regulate the space anymore. The norm disappears. The market takes over. Huge flood of spam. 

    First counter-measure: vigilantes. MAPS. You are blacklisted.  

    Battle between HP and MIT. HP subscribed to ORBS. MIT mail was blocked; MIT didn"t implement policies ORBS thought appropriate. 

    MIT got mad. They started blocking all mail from HP. Arms race. This was only stopped because ORBS went down.  

    The tech that vigilantes use does not necessarily address the problem; it might even hamper Internet"s ability as a vehicle of free speech.  


    Gilmore was blacklisted. He was put in a position to understand that the Internet was not going to route around this censorship. The effect was censoring, though the government wasn't doing it. 

    Some responses do more to harm the free speech capability of the Net than others. 

    What if we had a good law? What if a bit of law removed the need for private law?  

    "Code is law" is not my idea; it's Mitch Kapor's. He said: "Architecture is politics." Second point: code is plastic. Third point: sometimes no law can beget bad code. Fourth point, more tentative: good law can be used to avoid bad code (maybe)? 

    Participant: I don't want to rain on your parade. I've practiced for many years. I see the deterioration of the rule of law. I see this even in the government. 

    Larry: I am an extraordinary pessimist. I am with you on the rule of law. I'm wearing a yellow shirt today, but I'll soon be wearing black to match the jeans [big laugh]. We'll have to decide at the end of the program who is the bigger pessimist. 

    Participant: I used to be a network admin, and ORBS targeted me. I wanted to work with them, but they didn't like that I was asking questions. They threatened me. I gave in. I recently had the same problem w/SPEWS. So some vigilante groups definitely target people unfairly. 

    Larry: SPEWS doesn't even brook criticism. No email for complaint. This disturbs me. This is why it is sometimes better for the government to be doing this sort of thing; they must answer to someone. 

    Participant: America rules the market, rules the architecture. They allow Nazi websites, putting their idea of free speech on the rest of us. […more…] 

    Larry: Exactly right. The Internet is the most effective exporting of First Amendment values to the rest of the world. The point from this, which we will address in the jurisdiction session this afternoon: what are the solutions?  Do you create a global rule? Or make the Internet reflect local values?


    Participant: Isn’t cyberspace just like the ocean—meaning there is no real jurisdiction? 

    Larry: Are you a lawyer? 

    Participant: Yes. 

    Larry: So this is a standard way to think about this. But here's the difference between the Internet and the sea. When you're in the ocean, you're not in France at the same time.  

    [Concluding comments & wrap up.]

    Blogging ILAW

    As some of you may already know, I've made something of a habit of it. This time 'round, I'll be blogging ILAW @ the Berkman Center site, where last week I began a brand new weblog.

    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.

    And then of course there is the remarkable faculty: Yochai Benkler, Larry Lessig, William Fisher, Charles Nesson and Jonathan Zittrain.

    Here's the full program schedule; check out Berkman blog for continual updates.

    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


    I'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

    Yep, I'm still alive. Here's where I have been. That's right--the Berkman Center website has now been blogified. More on this to come. [Later: more.]

    But first, a few quick pointers in the wake of yesterday's Big News RE the Public Domain Enhancement Act (hyperlinks & emphasis, mine):

    • The Washington Post: "Two members of Congress today introduced legislation (PDF) they said would ensure the American public's access to the nation's intellectual and artistic heritage."
    • Representative Zoe Lofgren (D-San Jose): "Our Founding Fathers recognized that society has an interest in the free flow of ideas, information and commerce. That is why copyright protection does not last forever. This bill will breathe life into older works whose long-forgotten stories, songs, pictures and movies are no longer published, read, heard or seen. It is time to give these treasures back to the public."
    • The American Association of Law Libraries, which joined the American Library Association and the Association of Research Libraries immediately in endorsing the bill: "Many more House cosponsors are urgently needed now so that we can build momentum for this important legislation. Please contact your representative as soon as possible, using the talking points in the letter below, to urge that he/she cosponsor the bill."
    • Larry: "It's very early, and we have yet to weather the criticism and opposition. And of course, if money lines on this one, we will not prevail. But every, from Members to staff, took this as seriously as anyone could hope. Let's see what happens.

      One point was clear however: The work of the petition was extremely important. At least one Member indicated to me that he/she had been made aware of this issue by someone signing the petition. Another Member indicated they had heard from people who had signed the petition. The more of this we can build, the more likely it is that we can build enough support to prevail.

      Stay tuned for the next stages. But thanks to Public Knowledge, and the 15k+, who have helped carry this idea one step closer to reality."

    • Timothy Phillips @ Lessig Blog: "Maybe Congresswoman Bono has truly modified her views on copyright to account for the public interest more than it was accounted for in the statements she made in 1998. Or maybe Congresswoman Bono sees this bill as a bone that she can throw to us dogs to keep us quiet. In any case we must remember in the true logic of copyright it is the copyright industries who should be the dogs groveling at the public's table, not the public at the industries.'"
    • Martin Perlberger, via email, in response to Larry's quote about the PDEA in the latest issue of The Filter: "Congress and President Ford did not abolish the requirement to renew copyright 'because they thought it was an unnecessary burden, and there was not so much benefit in letting work pass into the public domain.' On the contrary, the renewal requirement was eliminated because it was in violation of the USA-ratified Universal Copyright Convention...The plain fact is that the fewer rewards are available to authors (in the broadest sense as related to copyright) the fewer worthwhile works are produced by authors. With fewer rewards for creating and disseminating works of authorship will come fewer efforts and expenditures in disseminating works ('marketing' to some)."
    Mr. Perlberger's remark put me in mind of another important effort launched by Representative Lofgren, in partnership with Representative Boucher: ensuring that our international trade agreements, such as those with Chile and Singapore, do not lead to a national "lock in" of the DMCA.

    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.

    Thank You Seth Finkelstein, who drew my attention yesterday to a marvelous quote by Justice Souter in the CIPA case. Filter readers are enjoying it.

    Still catching up on my reading, post-Filter. The best bits so far:

    Finally, because CIPA coverage likely obscured it: A Hidden Hope for Fair Use [Evan P. Schultz, Legal Times].

    Excerpt, via, "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."

    Later: Ah--finally. Here's Jonathan Zittrain's Legal Affairs piece on the copyright impasse, which via Dan Kennedy has already become fodder for discussion. Excerpt:

    A couple of years ago I was talking with a law school colleague about cyberlaw and the people who study it. "I've always wondered," he said, "why all the cyberprofs hate copyright."

    I don't actually hate copyright, and yet I knew just what he meant. Almost all of us who study and write about the law of cyberspace agree that copyright law is a big mess. As far as I can tell, federal courts experts don't reject our system of federal courts, and criminal law experts split every which way on the overall virtue of the criminal justice system. So what's with our uniform discontent about copyright?

    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 weren't smelling the smoke: Internet Sparks a Copyright Fire [Robert MacMillan, Washington Post].

    Posted Monday, June 23, 2003

    Something Profoundly Disappointing

    The scoop, via Seth Finkelstein: "A divided Supreme Court ruled [PDF] Monday that Congress can force the nation's public libraries to equip computers with anti-pornography filters.

    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."

    Nothing here--yet.

    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)."

    Later #7: For news not about the CIPA decision, see Frank's picks. Also check out A Blog Doesn't Need a Clever Name. Looks to be right up copyfight alley.

    Fair Use, Post-Eldred

    Via LawMeme: A Hidden Hope for Fair Use [Evan P. Schultz, Legal Times].

    Excerpt, via, "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

    Something Palliative

    ...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."

    Something Extreme

    ...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, Hear

    Reuters, 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.

    The committee's chairman, Arizona Republican John McCain, said he would hold a hearing after Kansas Republican Sen. Sam Brownback asked him to look into the issue.


    The RIAA on Friday sent out cease-and-desist letters to the Verizon customers and one to an EarthLink Inc. customer.

    Verizon is appealing the case, but Brownback has prepared a bill that would require the RIAA and other copyright investigators to file a formal lawsuit, rather than simply getting a court clerk's signature, before obtaining the names.

    The current arrangement could allow stalkers, spammers, telemarketers and others with dubious motives to easily track down anyone they wanted, Brownback said on Thursday.


    Brownback tried to attach his measure to another bill at a committee meeting Thursday morning, but withdrew it after McCain promised to hold a hearing.

    Today's topic at Internet Law 2003? Privacy on the Internet. Notes should soon be available, here.

    Later: More on the McCain hearings here and here.

    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.

    The problem is, the other house (the House in this case) can play bad cop, and in this case it has promised to do just that. Senators get a free vote on a popular issue, while House leaders simply keep the bill from reaching the floor, and the unpopular actions go into effect.

    Posted Thursday, June 19, 2003

    Copyright Impasse

    Dan 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 Ponder


    I respectfully disagree with Matt that "saying that copyright isn't property is something of a nonstarter"; I do, however, appreciate his detailed exploration of the issue.

    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."

    (Via John Palfrey--once again blogging live from Internet Law 2003 @ Harvard's PIL.)

    Contract Trumps Copyright--Again

    Disappointing, but important to note: the Supreme Court recently denied the petition for cert in Bowers v. Baystate. Via the invaluable digital-copyright list, the Tech Law Journal:

    6/16. The Supreme Court denied certiorari, without opinion, in Baystate v. Bowers, a patent, copyright and contract case involving CAD software....This denial lets stand the January 29, 2003, revised opinion of the US Court of Appeals (FedCir) which addressed federal preemption, shrink wrap contracts, and reverse engineering. Basically, a shrinkwrap contract barred reverse engineering of a software program. A divided Appeals Court held that the Copyright Act does not preempt state contract law that allows parties to impose a ban on reverse engineering.

    Here are a few of my previous posts on issues in the case.

    Posted Wednesday, June 18, 2003

    Something About Harry

    Actually, two things.

    Later (June 19): Yet another thing, via Eugene Volokh.

    Hatching a Plan to Tame P2P

    Yesterday'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.


    Participant: Why isn't it illegal that they're hampering your sharing of legal files?

    CN: When you've also got a copyrighted song in the folder, and I do the DoS attack, you don't have a very good defense. You are sharing my song. And I haven't done $5,000 worth of damage to you.

    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."

    This morning, Berkman's John Palfrey--blogging live from today's session--continues to track the discussion:

    Consider the following statutes:

    * The Computer Fraud and Abuse Act: Consider (a) (4), or (a)(2)(C). Do they outlaw this type of interdiction? Did the Congress really want to stop activities without fraud involved, as (a)(2)(C) implies?

    * The Digital Millennium Copyright Act's Safe Harbor provision, in its Section 512. Universities want to avail themselves of this safe harbor, but it's a big hassle.

    How should universities respond? JZ seeks to give closure on the issue by defining the problem as one of "points of control."

    One path:

    The technology will change from general-purpose PCs to locked-down PCs that can do only what the manufacturer wants it to run. Instead, it will be like video games and TiVo. If you can build computers that won't run Morpheus or KaZaA or a virus for that matter, then you're saved from yourself and the content distributors are saved from rampant piracy if boxes can't run P2P programs. Congress has been asked by publishers to pass a law that would steer the barge of technology in this direction.

    Another path:

    We acknowledge that computers can make these perfect copies. We try to deal with the road-kill that ensues. The legal reality will have to bend to it. And in this hypo, university administrators are stuck in this reality. They have to take the path of least legal resistance.

    So they play ball with the publishers and avail themselves of the safe harbor. Harvard's approach is to establish a punishment of a one-year network shut-off (incidentally beyond the strict requirements of the DMCA) after a student has twice violated the file-sharing rules.

    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:

    • Ex not paying child support: Two big guys with a sledgehammer come over and bust his/her TV.
    • Noisy neighbors: Two big guys with a sledgehammer come over and bust their stereo.
    • Deadbeat won't pay his bills: Two big guys with a sledgehammer come over and bust his head.
    • Teenager won't keep to the speed limit: Two big guys with knives come over and slash his tires.

    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 #7:Declan on Orrin, with the other Orin.

    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?"

    Bonus #9: Warner Music would rather that its employees not be vulnerable to accusations of hypocrisy.

    It's the Architecture, Stupid--Part II

    You 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.

    First, a snippet from the discussion this morning RE Internet gambling--an intriguing spillover from yesterday's session on jurisdiction:

    JZ: Most of the discussion so far has been focusing on going after the source of the problem with Internet gambling, and from a moral standpoint. But going after the source has its own problems. If you start to trace how Internet gambling actually happens, you may want instead to go after the low-hanging fruit.

    The ISP as a matter of course gathers data. It's like a gossipy operator at the switchboard in the old days. This is not the front door of a party where people are playing poker. This is inside the smoke-filled room. You've given your information, you've signed up to gamble. This is where the real players are. So the ISP has got names and numbers. Would you, as prosecutor, be interested in this information?

    Participant: I'm not sure we'd want to visualize state police knocking on people's doors...

    JZ: No, no, no. This is just a letter to the people in the smoky room--a letter letting them know that you are watching and that they might be doing something wrong.

    Another participant: What about privacy?


    JZ: I'm the Internet guy; I don't care about doctrinal questions. Go tell it to the Connecticut legislature. The reason I'm pursuing this line of reasoning--asking you what you would do with names handed to you on a platter--is that the legal and moral implications aren't something a lot of people would want to get into. This issue will come up again when we discuss intellectual property. The party you feel most comfortable bringing forward for a perp walk in front of the cameras is often the hardest to reach. The easier ones to catch aren't so attractive in this respect; you're not so sure you want to prosecute them.

    Audience member: A practical question--can't you go after the credit card companies?

    JZ: That's an example of another intermediary, other than ISPs; this has certainly been tried.

    JP: That was my last slide for this session, by the way. My mom is conservative. But her one vice is gambling; she loves it. The other day she saw an opportunity on the Internet, and called to ask if it was legal. The guys on the other end of the line said, "Oh, yes, it's fine. It's legal." But then she tried it. At the very last minute her credit card company denied her the ability to place the bet. So my presumption is that the credit card companies have been forewarned.

    JZ: It makes it harder to go from zero to gambling in 45 seconds.


    So: an Internet solution to a legal problem is to punt on the doctrinal questions. We want to use the Internet to undo what the Internet has wrought. Is there a way to filter this stuff out? It's a cat-and-mouse game. Once you start going down that road, you arrive at the cantonized Internet we spoke about yesterday. It's the Connecticut-Wide-Web. It looks just the same as the regular World-Wide-Web, but it's not.

    In the US, you could get into the dormant commerce clause problem. If an ISP in Connecticut is stopping the rest of the country from accessing the site you don't want your state residents to look it, it might wake up that clause.


    There are some creative technical solutions to Internet problems that make you uncomfortable because they amount to a degree of regulation that most people aren't used to. 


    Some of the solutions that the Internet offers are so powerful that regulators themselves might actually get uncomfortable.

    Second, a handful of snippets from the discussion on IP promised below:

    JP: Intellectual property is a huge, unavoidable topic in Internet law. Let me start with the story of the digital music conundrum. We'll start in the US. Today's first reading is John Perry Barlow's The Economy of Ideas--a fascinating take on how to think about IP. His piece is a paen to the idea that information wants to be free. This is the initial cyber-libertarian view.

    Another, previous perspective represents the opposite pole: Alexander Hamilton. The Hamiltonian perspective is that IP is about stimulating people to make more money. Was Hamilton right?

    Quickly, here's the story of IP in music. We're narrowing this discussion to copyright, for now excluding trademark or patent. Here goes: 

    • Music went from analog to digital;
    • Compression format (MP3) combined w/rise of the Internet;
    • Content distributors got scared; haven't seen the opp. in the situation  (the Barlow view). Instead, they see problems. Lobby for and get the DMCA and the NET Act;
    • Business models explode--but then implode; and
    • The problem for content distributors remains acute.

    So we've got the NET Act and the DMCA. Huge amount of debate over the DMCA. One element that people are talking about is the "notice-and-takedown" provision. The DMCA set up a provision for ISPs where we've got both the carrot and the stick. Are you an ISP? There are countless definitions; if you think you might be an ISP, you probably are.

    If a copyright holder complains of infringement, the law says that you've got to take the material down; that's the stick. If you do so you have a safe harbour; that's the carrot. You will not be sued for the infringement presumably taking place.

    Napster story: Shawn Fanning develops P2P software--perhaps not "true" P2P; it has a centralized index. Millions used it, and in under a year from its launch. It's an amazing story of Internet time: start the company in May; get sued by December.

    There was an injunction against Napster by July. An appelate court upheld the injunction. Bertelsmann bought, then sold Napster. The story ends w/a whimper, not a bang.

    What was the complaint against Napster? Contributory and vicarious infringement. Slightly different legal standards for both. Benchmark here is the Sony Betamax case. So long as there are substantial non-infringing uses, you're okay. Was Napster capable of substantial non-infringing uses? Yes. Whether or not it was used this way is a different matter.

    The assigned reading is by Fred von Lohmann of the EFF. What he wrote is essentially a how-to manual for someone who might want to create a legal P2P file-sharing system.

    Coming down the pike were a few Napster "siblings." One was Grokster (using technology from KaZaA): they took out the central file-sharing server. And the company itself--KaZaA--started globe-trotting. They literally can't be reached.

    A lawsuit was filed, on almost precisely same grounds as in Napster. But this spring, the court found, surprisingly perhaps, that these companies are NOT liable as Napster was.

    This has been forcing a change in strategy. They can't go after the technology makers. Instead, you go after other people--other links in the chain. The content industry has been going to court to get the names of those engaged in the file sharing. They've been using the DMCA to get those names.

    They also have tried a state-level approach; the so-called Super-DMCA legislation. An interesting campaign, on both sides.

    Finally, they've gone after college students: in their minds, the "super-users."

    Let's take a look at RIAA v. Verizon: they sent a subpoena to Verizon, to get the names of anonymous users. Verizon said no. They are fighting for the privacy of users, no doubt, but also against the hassle and cost of these suits. The RIAA is asking Verizon to be the Net police; they don't want this role.

    Verizon lost, twice. A big win on the part of the recording industry. This is a very powerful tool.


    Audience member: My three kids are ethical and honest--they wouldn't steal a candy bar. But they think this is free and okay...Perhaps if a generation thinks it's okay, it's okay. 

    Audience member: In my generation people thought it was okay to smoke marijuana--but that didn't make it okay...I think this undermines the rule of law. People should be entitled to the fruits of their labor.

    JP: How?

    Participant: They should get a royalty when their songs are downloaded.

    JP: Each and every time a file is downloaded?

    Participant: Uh...well...


    Charlie Nesson: [Downloads file using KaZaA]

    JP: Are you making a copy?

    CN: Yes, I am. [Madonna's "Like a Virgin" is piped in to the classroom. The quality is perfect.]

    Participant: But Madonna is fighting back; she's got some rude words for us.

    CN: He's talking about "spoofing." Flooding the Internet w/false files.

    Participant: Tarbell [a local band] has waived copyright...lots of artists are giving it away for free.

    JP: What does this mean to you?

    Participant: It's a fight-back move, in protest of record companies--of their restrictive, even illegal contracts.


    2nd participant: It seems to me that the law is becoming a poor orphan of technology, following technology along. This is bad. I'd like to see rule of law...

    Right now, we could charge a penny per download...but then the tech will defeat it and we're back where we started.

    JP: Professor Nesson--do you know of any technologies that can help a creator?

    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.


    Participant: Why isn't it illegal that they're hampering your sharing of legal files?

    CN: When I do the DoS attack, you don't have a very good defense. You are sharing my song. And I haven't done $5,000 worth of damage to you.

    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.

    Stay Tuned

    Here's a snippet from the description of this morning's session here @ PIL:

    The retaliation against the P2P movement by some of the content owners and distributors has combined law with code in an attempt to lock down digital content more than ever before. A potent combination of the Digital Millennium Copyright Act and its siblings plus powerful trusted systems threaten to shift the pendulum yet further in the opposite direction--but try telling that to the hundreds of millions of subscribers to the P2P networks.


    This whirlwind overview of the pitched battle over intellectual property in cyberspace will touch down on digital music and video in particular. We will also look ahead to the next round of legal battles and will assess likely outcomes.

    Right now, we're at the "fiddling with wires" stage; stay tuned.

    Posted Monday, June 16, 2003

    JP and JZ on IP

    It 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 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."

    Comments are welcome. Do check it out. (Thanks, Lawrence!)

    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."

    He's also delivering more than 15,000 hits to the Weblogs at Harvard Law site. It's very likely that someone is messing with us. I still like to see Derek get those numbers.

    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 archiving? 'Whistle-blowers won't be able to do what they do,' says Joe Kraus of" (Thanks, Steven!)

    Posted Saturday, June 14, 2003

    Common(s) Interests

    Here's a good reason to add Commons-blog to your blog roll. A snippet (emphasis, mine):

    [S]upporting libraries (like supporting the commons) is inherently a political act (at least in terms of requiring that we take a clear position on how resources are organized in our society). Furthermore...we need to be very concrete about what we think libraries offer, about what we want to acheive, and about what we ask our elected officials to do for us. If we can't get concrete, it will be much more difficult to get anywhere.

    Another point this conversation is raising for me is that we have greater potential for success if we can work together. There are lots of ways that people are working to promote access to ideas and it can only help us to see the connections among the various initiatives and to approach them with a spirit of mutual cooperation. Support for the public domain ultimately *is* support for libraries, and the reverse is true as well. Furthermore, all of us who advocate openness in information can take heart in the successes of our compatriots. The groundswell of opposition to the FCC's further deregulation of media ownership rules is good news for all of us concerned with promoting access to ideas. The 12-thousand plus signatures on the Petition to Reclaim the Public Domain are a sign of support not just for the Eldred Act, but for access to information overall.

    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

    This collection of comments from legislators on the Georgia Super-DMCA (via Declan McCullagh @ Politech). One such:

    Charles E. Bannister (R-SH 070 P1)
    This legislation certainly should be studied. It is very broad in the original concept. Furthermore, in this very early age of the internet it is perhaps to soon to begin restriction of this type without further study. Perhaps we should move more slowly and watch the federal legislation. Most legislation is usually introduced for a single purpose or entity. Perhaps there should be more questions as to who the real benefactor or benefactors would be!


    One more for the road (via Pho): Hilary Rosen, on Mary "copyright forever less one day" Bono's possible bid to become the new head honcho at the RIAA: "I love Mary Bono; she's great."

    Yeah, we kinda thought so.

    Post of the Day

    Jack 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.


    If there is a problem with this First Amendment argument, it is not Orin's objection, that fair use is a defense. The problem comes in proving that there is a First Amendment right to gather and transform information that is protected by a copyright management scheme if the government has legitimate reasons for protecting such schemes from circumvention. The government will defend the DMCA on the ground that the government's purpose is not to prevent fair use but to prevent piracy, and therefore the DMCA poses only an incidental burden on free expression that passes the O'Brien test--i.e., that the regulation reasonably serves a legitimate government purpose that is unrelated to the supression of free expression. In order to make the First Amendment argument against the DMCA, one must show that the incidental restriction on freedom of speech that the law imposes is too severe. As I have argued in a previous post, Eldred actually helps you make this argument.

    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'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

    As Marty notes, parody on the Net just got a much-needed shot in the arm.

    Speaking of which [PDF], how on earth did Jerry Falwell accomplish this? (Thanks, Declan.)

    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.

    Thanks, Doc.


    This 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."


    ...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.)

    Later #2: Further discussion of the proposed act, embedded in a Findlaw piece on the Dastar decision

    [...] Dastar is significant because it stressed that the public domain is essential for creativity. The public domain allowed Fox to obtain the war footage for "Crusades" in the first place. Fifty years later, at a historic moment, the public domain allowed Dastar to share this and other footage with a wider audience at a reasonable cost.

    In the past, as noted above, property holders had to take affirmative steps to renew copyright--as Fox failed to do. Now, however, the copyright term is automatic; copyrights need not be renewed.

    Predictably, the omission of a renewal requirement has harmed the public domain. For this reason, Stanford law professor Larry Lessig and others have sought to revive the renewal requirement via a petition to Congress. According to the petition, works for which the copyright is not renewed would fall into the public domain after fifty years. Their hope in doing so is to increase the number of works that may accidentally fall into the public domain, as did Fox's series.

    Mary's Back

    ...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: Via Larry: What a stagnating public domain looks like.

    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

    Turns out I will be blogging the law panel at Jupiter this morning. It features the talented Denise Howell and incredibly energetic John Palfrey, among others. Qs on the table for discussion:

    • Who owns the content, employer or employee blogger?
    • The applicability of Federal and State advertising laws.
    • Defamation and corporate disparagement.
    • Liabilities for advice and opinions: The use and misuse of intellectual property.
    • Protecting the company's trade secrets and confidential business information.

    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.

    Later: Here are my complete notes from the session. Below, a snippet from JP:

    John Palfrey: I am a reformed lawyer; I used to work at Ropes and Gray and it was a lot of fun. I now work at the Berkman Center, and it's a lot more fun. Denise has done an excellent job with an overview of the risks, so I won't go there. I'm going to take a page out of Dave Winer's book. I am going to speak here not as a lawyer but as a user.

    Three or four months ago we created Weblogs at Harvard Law, a blogspace; we put it up and watched to see what happened--like throwing spaghetti at the wall and seeing what sticks. Anyone with a Harvard email address can now get a weblog in that space--including untold numbers of alumni, etc.

    We've learned three things, pretty quickly: 1.) watch out about becoming an ISP, 2.) be ready for take-off, it happens more quickly than you think and 3.) blogs are good for the Web and good for you.

    ...and from Arik Hesseldahl, a journalist who writes for Forbes:

    There is a question about the public persona as property of media organization--where does the job end and the person begin? My boss has a personal website on cricket--there's not a lot of overlap, there.

    But does that mean that if I wanted to write about financial news on my own blog--I could? Generally, no. You don't publish your "own" version of a story. What goes on in the office stays in the office. Journalism may be the first draft of history--but blogging shouldn't be the director's cut of journalism.

    That doesn't mean, however, that blogging can't be the first draft of journalism.

    Arik says he's "not much of a blogger." Somehow, that isn't much of a surprise.

    Later #2: John Palfrey gives good follow-up, as does Denise.

    Later #3: Heath Row catches bits that I missed.

    Later #4: David Weinberger, meanwhile, is beautifully succinct.

    Posted Monday, June 9, 2003

    Blogging Jupiter

    Hylton 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


    That's where I was Friday. Missed lots of good stuff. Fortunately for us, Frank Field did not.

    Thanks, Frank.

    'Nother good spot for post-weekend catch-up.

    Later (June 9): Spoke too soon. Matt Morse plays "catch-up" and quite a bit more. Absolutely excellent stuff. A gem, from Matt's discussion of the loss in RIAA v. Verizon (hyperlink, mine):

    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 "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."


    Please change your blogrolls to point to instead of the old Thank you!

    Posted Tuesday, June 3, 2003

    The Public's Interest in Copyright

    Larry 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."

    Later #9: Larry: "Many on Slashdot...demand that we 'hold out' for something much more radical. That this would be a 'compromise and that we should never 'compromise.'

    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."

    Post script: Andrew Orlowski's, er, birthday gift for Larry (thanks, Frank!).

    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."


    The 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 Sample

    Nice 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."

    CC, working on proof of.

    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."

    EFF archive: DVD-CAA v. Bunner.

    Edward Felten, who filed a declaration (PDF) with original trial court, "I have never understood why the industry's basic trade secret argument wasn't laughed out of court."

    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.

    The federal DMCA, meanwhile, just got (another) shot in the arm.

    Later: Alex Macgillivray comments in detail on the (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 Sense

    Information Commons has a weblog. Fantastic.

    OSCOM--the Blog, Part II

    Hi 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:

    Next up for me (in terms of blogging OSCOM) is Wendy Seltzer's talk on Openlaw at 4:00 p.m. EST 2:00 p.m. tomorrow. Wendy is one of my personal heroes: a copyfighter of the highest level.

    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.)


    FCC 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

    OSCOM--the Blog

    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.

    Later (May 28): John Palfrey blogs the first session, the provocatively titled You Can't Make Money in Open Source! A tidbit:

    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?

    Joseph Reagle: There's a commitment to a commons and if someone pulls out, then there's someone leaving that commons.  I'm not excusing the flames.

    Prof. Nesson: Can you be a commons contributor and make money?

    Reagle: You live with it. It's the culture. You'll get flamed if you tend away from commons and toward money.

    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.

    So, is everyone who took a photo in Starbucks this weekend liable for "contributory trade dress infringement"? Or is all of this a joke?

    Or perhaps both?


    Later: A few additional links on Starbucks and IP whilst you ponder that question:

    Plus a collection of bits & pieces on my radar: Later #2: Joseph Reagle's contribution to the Starbucks campaign. It's from a couple of years ago, but it's still fresh & hot.

    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.

    Opponents--many of them computer professionals and enthusiasts who mobilized via the Internet--said no new law was needed and the measure as originally written threatened privacy and civil liberties.

    Thanks, Bill.

    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 Attack

    Not 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 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."

    Thanks, Bill. [Later: Rocky Mountain News op-ed on the bill, via Professor Felten.]

    And in other developments copyfight:

    Hardly comprehensive, I know. For that, you may need Frank Field.

    Posted Wednesday, May 21, 2003


    Pray for the folks at Yale.

    Gator Aid

    As 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 In the cutthroat travel business, Orbitz,,, 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 Goodbye

    Derek 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.

    When Derek first started A Copyfighter's Musings, I was delighted alone to see the copyfight meme spread. He has since contributed quite a bit more than that.

    Derek interned at EFF, became an affiliate at Berkman, and is now moving on to summer work at Creative Commons. I can't wait to see what happens next--can you?

    You Can't Make Money in Open Source

    Nope, 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:

    An embarrassment of riches.

    Tune in here at Copyfight on May 28-30 to share.

    Later: Plunge in to the discussion brewing 'round OSCOM @ Bitflux and the OSCOM weblog.

    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:

    Finally, via my referrer logs,'s headlines. Don't know about you, but I'm adding this one to my blog roll.

    Posted Thursday, May 15, 2003

    Until We Meet Again

    I won't be in the office or online tomorrow, so here are a few final bits & pieces to chew on:

    Bill Hobbs

    ...connects the dots with regard to the Tennessee Super-DMCA. I've not corroborated the story, but the picture sure isn't pretty.

    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 Backup

    The 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 #2 (May 15): On MGM Studios v. 321 Studios: DVD-Copying Case Heads to Court [Lisa Bowman, CNET] and Hollywood Fights DVD-Copying Software [Ted Bridis, AP].

    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 #4: Hollywood vs. the Copycats, Round 2 [Penelope Pasturis, Forbes] and Security Research Exemption to DMCA Considered [Kevin Poulsen, Security Focus].

    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 Concentration

    I'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."

    Leave aside the rights and wrongs of the war itself, and consider the paradox. The BBC is owned by the British government, and one might have expected it to support that government's policies. In fact, however, it tried hard--too hard, its critics say--to stay impartial. America's TV networks are privately owned, yet they behaved like state-run media.

    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.

    There does seem to be some hope in getting more members of Congress sticking their nose into the issue. That's where greater public awareness becomes important. Congresspeople listen to the their constituents, and they really listen to the front page of their local newspapers. It is still Congress that makes the laws and sets the funding for the likes of the FCC, so there is the possibility that influential congresspeople, like the Senate Commerce Committee, could put some major pressure on the FCC to ratchet down it's deregulatory orgy.

    Finally, a ray of hope: an earlier article on Senators Olympia Snowe (R-Maine) and Byron Dorgan (D-N.D.)--poking noses.


    Post script: I won't be here for the rest of the day; other pressing duties call. I recommend a visit to A Copyfighter's Musings and a click on each link in the blog roll.

    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?"

    So there's a million reasons why this is silly--despite the importance of blogs, etc. But the one that's most relevant is this:

    At the same time that media concentration restrictions are being removed, such that 3 companies will own everything, so too are neutrality restrictions for the network being eliminated, so that those same three companies--who will also control broadband access--are totally free to architect broadband however they wish. "The Internet" that is to be the savior is a dying breed. The end-to-end architecture that gave us its power will, in effect, be inverted. And so the games networks play to benefit their own will bleed to this space too.

    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: 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: Google news search on FCC and media.

    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."

    Also see:

    Later # 4 (May 15): Brother Kling says I'm being oxymoronic. Here's Larry in response to other critiques.

    Posted Friday, May 9, 2003

    Shout Out

    I 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:

    Frequent TCS contributor and fellow economist James Miller has written an unfortunate screed on the topic of file-sharing...What Miller fails to allow for is any middle ground between the technology-hostile position of the recording industry and Hollywood on the one hand and communist nihilism on the other. This is a false dichotomy, as several in the blogosphere have tried to explain.

    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.)

    Finally, via Denise Howell: Tony Campbell of the Tennessee Digital Freedom Network got air time yesterday on TechTV's The Screen Savers. Bravo.

    Later: George Ziemann outlines his arguments for the May 14 DMCA hearings.

    Posted Thursday, May 8, 2003

    Center for Digital Democracy Asks Powell to Recuse

    Jeffrey 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--Published

    Duke 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."

    Meanwhile, reports the Tennessee Digital Freedom Network, "HB0457 [PDF] has been 'recommended for passage if amended' and referred to the House Finance, Ways & Means Committee."

    More details are available here; you might also want to keep an eye on Bill Hobbs.

    Posted Wednesday, May 7, 2003

    Happy Birthday 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."

    So here we go again: The US Trade Representative is negotiating trade agreements with Chile and Singapore. The agreements essentially require these two countries to adopt the DMCA, and make it a violation of "our international obligations" if we were to change the DMCA. Representatives Lofgren and Boucher--who both have bills introduced to amend the DMCA--have written a strongly worded letter to the USTR asking for clarification. For consistent with this policy making process, just what is being promised is never made clear--until it is too late. Here's the letter [PDF].

    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):

    IP should be limited by fair use. IP is not real property. We live in a culture that cannot make this distinction. This is an infection that is spreading around the world. Mexico has now decided to extend it to life plus 100. Then, after the works enter the public domain, they want people to start paying the government for it. This is truly innovative.

    Copyright has changed--its duration has expanded, its scope has expanded, its reach has expanded, its force has expanded, and finally, there has been a media concentration. The publishing monopolists now control the creative process in an important sense.


    The advent of the Internet is an extradordinary opportunity. The technology will allow us to achieve what Terry Fisher calls "semiotic democracy." We have a role here, we lawyers. We can let people know that there is a distinction between IP and real property.

    If we don't change this rhetoric, we will lose this opportunity. If lawyers around the world keep genuflecting to the extreme view of IP that Americans are pushing, we will all lose.

    Brazilians are expressing a traditionally American view by advocating balance. Please keep insisting on a balance between protection and freedom.

    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.

    A Filter reader contacted me after receiving the latest issue (Copyfight readers may remember my collection of quotes on the Super-DMCA struggle). He wrote:

    The new free trade agreements that will soon be signed by the United States with Singapore and Chile, respectively, include provisions intended to establish certain provisions of the DMCA at the international level.


    I would be interested to know from Filter readers whether the particular DMCA-like provisions incorporated into these agreements are controversial. I would also be interested to start a broader debate about enshrining DMCA-like provisions in international treaties. Even if the United States wanted to change or repeal the DMCA, to the extent that a DMCA provision was in a very-difficult-to-change trade agreement, the US would be in violation of its international obligations.

    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).

    Myself, Mr. Safir, and Mr. Moore were in favor of exemptions (for varying classes of works), while Mr. Turbull, Mr. Attaway, Ms. Perlmutter, and Mr. Mitchell opposed exemptions, with Mr. Einhorn trying not to take sides.

    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.

    Read Me

    Posted Tuesday, May 6, 2003

    Two for Two

    Two must-listen offerings from public radio: two must-read posts: Quote of the day: Siva, emphasizing what I always hope is crystal clear: "[No] one who understands the value of reasonable copyright is seriously arguing against copyright. But no one should be suckered into believing that just because some copyright is good, maximal copyright is better."

    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?

    My thanks to Lee Carl Bromberg of Bromberg & Sunstein LLP for sending along the petition.

    Later (May 8): Kevin Heller's .02.

    You Heard it Right, Guys

    ...Copyfight has a brand new feed. And Phil Ringalda, who had long wondered what was up, has subscribed.

    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:

    Finally, two offerings from big(ger) media: Up next: more on the countdown to the FCC showdown.

    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

    Google Wisdom

    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.

    Later: I'm stepping out for the rest of the day; I advise you keep your eyes trained on the usual suspects.

    MPAA Who?

    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...."

    The amendment to the legislation [PDF file, EFF] making the rounds at the Tennessee Digital Freedom Network.

    Also see Technology Bill Causes Concern [Craig Boerner, Nashville City Paper].

    Posted Thursday, May 1, 2003

    Princeton Students Settle in RIAA Suit

    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..."

    A sign of things to come [Chronicle of Higher Education]. [Later: Wired on same.]

    Creative Commons Engaged

    Dan Bricklin's post on CC licenses has engendered a response; you can tune in--and join the discussion--here.

    Media Concentration: Out from Under the Wire

    With only a month or so to go before the FCC's vote on changing the rules regarding media concentration, Larry Lessig has issued a challenge of sorts:

    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've got a bunch of stories and statistics to report, and will. But this is something we need many many voices to report. Where else will the news not fit to print get printed--except in weblog 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. A final note: I see from a few reports that the existence of Internet channels of communication is being used to justify "deregulation." So if you don't like the fact that all other media is headed toward homogenizing Britney-fication, "you've always got the Internet."

    It's not like you'd want to ensure a diversity of voices in each channel, right?

    Later (May 2): J.D. steps into the breach, as does Harvard weblog writer Amy Campbell.

    You Couldn't Say

    ...that Matt Morse doesn't practice what he preaches. And he certainly captured my attention.

    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

    Those, reports Giles Hoover, are the numbers by which Super-DMCA legislation has passed in Florida.


    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."

    Jon Johansen (yes, that one), on same: "Apple yesterday launched their music service. Encrypted AAC 128 kbps. DRM enforced by iTunes 4. Apple reserves the right to modify the Usage Rules at any time. US only. Compared to other music services which use DRM, it's the least fair use-hostile." 

    Edward Felten grappling with Orin Kerr grappling with Terry Fisher's numbers [PDF]: "In all this quibbling about numbers, we mustn't lose sight of the big picture, which Kerr sees clearly. If the revenue per song is zero, it doesn't matter what share of that zero goes to the artist. No matter what future you hope for, if you want to enjoy recorded music it had better involve some kind of payment."

    Nancy Kranich, providing the state-of-play RE initiatives that "reflect the principles of a commons"--e.g., The Internet Archive, The Digital Promise Project, Creative Commons, the MIT DSpace digital repository, the Budapest Open Access Initiative, the Los Alamos e-Print Archive, the Digital Library of the Commons and Project Vote Smart. (Via Peter Suber's FOS weblog.) [Later: in case you missed it, More Good Works.]

    Zach of Copyblight, explaining its purpose: "I've started a label of my own to distribute the music I make. Copyblight is intended to be a place to articulate the values that inform that venture, and to provide context for copyright news from the point of view of somebody who isn't a lawyer, but a musician and music fan (and, perhaps not incidentally, a librarian). As a result, Copyblight will likely focus on music-related issues such as file-sharing, DRM as it is deployed by music labels, and so on.


    I'm currently giving away my music, with the idea that content should always be free and that people will pay for physical goods if they are well-made enough to be worth money. Copyblight will track that experiment's progess, and otherwise comment on copyright related issues and news--informally, and likely with frequent profanity.

    Dan Bricklin: "In some discussions with Dave Winer and Diane Cabell, who is an officer with the Creative Commons project, it's come to my attention that many people may not be aware of some aspects of popular Creative Commons licenses."

    David Reed: "Dan's post...just illustrates the insanity of the US's current copyright regime, in which every idea that's ever been expressed is considered the property of the expressor. Why bother to try to jump through these hoops? Do what engineers have done with patent law for decades: ignore it. It can't be fixed...The ideal Commons license for creativity should be: steal this expression!"

    Matt Haughey, on Larry Lessig's proposed anti-spam bill: "If this becomes law, I'm convinced Lessig will be an author instead of a professor." (More coverage/commentary from the CIS weblog.)

    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.

    "My thoughts:

    1) We were present in mass and it made an impression.
    2) The senators expressed a lack of understanding the problem.
    3) The senators expressed a desire to understand the problem.
    4) They were currently relying on a cable company representative to interpret the bill for them.
    5) We were disorganized and needed better preparation.
    6) We basically won an extension.
    Good job, pat on the back. Now get ready for the next round..."

    —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): 

    [The] District Court in the Grokster matter recognized that the Defendants "may have intentionally structured their businesses to avoid secondary liability for copyright infringement, while benefitting financially from the illicit draw of their wares."

    Businesses that intentionally facilitate massive piracy should not be able to evade responsibility for their actions. We disagree with the District Court's decision that these services are not liable for the massive illegal piracy that their systems encourage and we will immediately appeal to the 9th Circuit Court of Appeals.

    Bonus: Matt's back. With pointers aplenty.

    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].

    Pardon Me

    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

    Here are David Weinberger's notes on the DRM panel @ Emerging Tech, moderated by Dan Gillmor. Plus Lisa Bowman's CNET piece on the Laws and Emerging Technology session with Fred von Lohmann.

    Also see Andrew Phelps at Emerging Tech, 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 #3: Berkman's John Palfrey, quoted in the above article by Ms. Glasner, responds.

    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.

    Bonus #5: Creative Commons announced today the release of several hundred titles under its Founders' Copyright...

    Posted Tuesday, April 22, 2003

    Ask and Ye Shall Receive

    Cory Doctorow is on the scene @ O'Reilly & blogging. And so is Robert Kaye.

    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.

    Says Wendy Seltzer, of the DRM panel in which she'll participate:

    "I've been a technology geek longer than I've been a lawyer, so it disturbs me when the blunt tool of the law gets in the way of cool new toys.
    We're trying to cut through the hype about DRM. To some people, 'rights management' is the greatest thing since sliced bread; to others it's the devil incarnate. Do the two groups see eye-to-eye at any point? Are they even talking about the same 'DRM'?"

    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 group spent considerable time looking at how the money might be distributed to artists, starting with traditional approaches, and then looking at innovative suggestions that sought to replace market or government allocations with new social collaborations between listeners and artists.

    The complete report is here; the archived webcast here.

    Posted Monday, April 21, 2003

    Aaron Swartz v. Super-DMCA

    Aaron, in a letter to his state representatives:

    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.


    Now you may say not to worry, because the government will only use these laws to prosecute real criminals; people using legitimate devices like DVD players or AirPort cards will never be sued. But the law also defines a civil cause of action, that allows any aggrieved party to sue. So CompUSA's competitor, MicroCenter, could sue them, claiming their devices were used to access the MicroCenter website without express permission. CompUSA could have to have all their devices destroyed, pay the other side's attorneys fees, and pay the gross revenue MicroCenter could have made had CompUSA customers payed to access their website.

    I'm sure there are many other outrageous ways people could use these extremely broad laws. I ask that you repeal this law quickly so that we won't find out what they are, and so that Illinois citizens trying to connect to the Internet or watch DVDs don't become felons.

    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?

    A: The U.N. [via BNA News].

    Larry on a Roll

    Larry Lessig has a fine brace of blogs this morning, including:

    Later: Mary Hodder, who has had her ear to the ground, provides her own .02.

    Later #2: Derek S. points to relevant comments @ his weblog, by Cory Doctorow and Eric Eisenhart.

    Later #3: Cory offers a fine brace of his own:

    Later #4: More in this vein to be explored here, come Wednesday. If you're planning to blog this session, do let me know.

    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.

    Thanks, guys.

    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:

    Finally, two oldies-but-goodies: v.

    As J.D. Lasica discovered yesterday, quite the contrast.

    Later: Siva Vaidyanathan is back. And like me, Siva has a new home URL: 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.

    Prof. Felten: I agree that positive action is important. I view this as a two-track process.

    The first track is the one you suggest, of building up lobbying muscle to challenge harmful regulations. This is challenging, given who is on the other side, and given the tendency of our opponents to buy off important players with special-purpose exceptions to their legal regulations. (For example, the DMCA has special carve-outs for ISPs and device makers.) We're really just starting in this area, but we need to remember how much progress has been made since the passage of the DMCA, which met very little organized resistance at the time.

    The second track 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.

    An example: auto parts manufacturers are worried by recent DMCA developments, such as the case where Lexmark has successfully (so far) used the DMCA against a maker of replacement parts for Lexmark printers. Auto parts manufacturers are worried that the DMCA mindset, which treats unauthorized analysis and interoperation as improper, will leak into their world.

    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.

    Later (April 18): Seth F. unearths an apropos exchange with Siva and JZ on strategy:

    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?

    VAIDHYANATHAN: That's part of it. What can we do? Plain talk is one thing. Everyone involved in this is trying to come up with a better vocabulary for discussing it. We actually have a growing army. It's a loosely knit bunch that includes hackers, users of material, and, most importantly, librarians. There are 30,000 librarians in this country who are very upset by all of this. They all vote and they talk to their congressmen. They are politically active right now, and if an objectionable piece of legislation is under consideration, they'll write letters and circulate petitions.

    Once you bring in religious conservatives who want to show movies to their kids without nudity, then you have a bigger group. Then you get a group of talented lawyers involved. It is starting to happen. Unfortunately, the battlefield is global now and we don't have troops aligned globally, except for the hackers.

    ZITTRAIN: This suggests a three-pronged attack. First, you instruct people that this is a political issue, just as the environmentalism movement had to do.

    Second, you work through the judiciary such as the Eldred case is doing in challenging the Sonny Bono copyright extension. That's what Lawrence Lessig calls "speaking reason to power." And the third thing, also sometimes used by the environmental movement, is to realize that what's on the other side is not something evil, it's an economic and predictable force. Then, you try to co-opt those on the other side, again as the environmental movement has done.

    We have a good start, here. Again, more to come.

    Feed Me

    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 will argue that the particular resolution of the copyright debate arguably has powerful implications beyond the content industries or the balance of intellectual property. It could influence the trajectory of technological innovation, indeed shaping the network's architecture itself and the business models that harness its capacities. Consider as only one example that many contend that network expansion is driven not by content distribution, but by the expansion of point-to-point communications. Yet, the intellectual property rules concocted for content will powerfully shape the architecture of the network. Will the network itself, as a result, evolve differently and even more slowly than would otherwise be the case?

    I like where this is headed.

    Later: This looks promising. Wonder what Seth will make of the title.

    Later #2: Feed is fixed. Thanks, Alex.

    Posted Wednesday, April 16, 2003

    Welcome Copyfight's new home. Same bat time, same bat channel--new, more mnemonically friendly URL: Please adjust your sets accordingly.

    Posted Tuesday, April 15, 2003

    ILAW Redux

    My apologies for the relative quiet here at Copyfight; I've been working on a longer narrative à la LawMeme's James Grimmelmann, so as to make the raw notes I took @ ILAW more easily digestible.

    In the meantime, though, here are a few photos from the conference, by a Brazilian participant:

    John Perry Barlow, Gilberto Gil.

    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.

    Later: Gee, thanks, Dave. And Jeff. (Blushing.)

    Posted Monday, April 14, 2003

    Grimmelmanniacs myself have another meaty piece to chew on, over @ LawMeme (via Balkinization).


    This piece by Kevin Poulsen on Super-DMCA legislation. The upshot? With these laws either already passed or pending passage, some researchers are moving their "operations" offshore. An excerpt:

    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 #2: J.D. Lasica picks up the gauntlet, helpfully pointing us to EFF's Super-DMCA press pack. It's great stuff.

    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.

    Bravo, Mary.

    Later (April 14): Alex Macgillivray tuned in to Berkeley conference, and agrees with something I said: that weblogs facilitate self-guided scholarship, or apprenticeship:

    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.

    Knowing too that, as Dan Gillmor said at the same conference, our readers always know more than us, a master on a point or of the moment will be an apprentice on the next. Humble blogging is best.

    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.]

    The EFF's Seth Schoen, on the problem of preaching to the choir:

    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.


    This was a gap that Cindy Cohn bridged, and everyone working with her bridged, with great success in the Bernstein litigation: even though the "general public" was not thereby enlightened, some corners of the Federal judiciary were enlightened, with extremely remarkable results.


    Meanwhile, and famously, the entertainment industries are seizing a vast control over the kind of technology that's readily available to the general public. (Fritz explained at the Berkeley DRM conference that that was all the control they expected to be able to get.) At the same time, people who oppose this are spending hours and hours talking to each other. I'm doing that right this moment.

    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."

    Finally, check out the complete notes from Digital Publishing: the Rights Issues, a recent Ninch conference featuring Siva Vaidyanathan among others.

    Posted Tuesday, April 8, 2003

    Talk Talk

    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.

    Not surprisingly, I'll be talking about weblogs in academia. [Note: Professor Felten and I will be participating remotely, via telephone and/or video webcast.]

    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."

    Hope so.

    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.

    As ILAW alums Sarah Stirland and Frank Field know, this is frequently the most interesting session of all.

    Stay tuned.

    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.]


    The parable is a small story that reads to a larger truth. This larger truth--the nature of property on the Internet.

    A disclaimer first. A certain political theorist isolated a set of actors that bring to the fore the property question. The idea was to question property; what is it? Was this theorist talking about lawyers? You might think so, but no, he was not. He was talking about communists.

    Warning: this presentation may contain some trace elements of communism.

    A small story. It begins in a faraway land: Britannia. Though it is far away, it turns out that we can tab into this world. This is Ultima Online. I'm a blacksmith here. I make imaginary objects for the people who come in from the hinterlands. This is a good business. Sometime, we blacksmiths need our own materials. So miners come in to sell us ore.

    This is a game, by the way. Not much fun, eh? But yes, it is a game.

    The blacksmith isn't the only place people hang out--people can go downtown and hang out at the bank. All of these people you see here are connected to the Internet right now. They are selling things; there is a lot of interaction going on. This game is very involving. It's addictive, in fact.

    What is this virtual world? A MMORPGs. Am I supposed to be taking this seriously, you're asking yourselves. I will make the claim that we should.

    The first reason you should take games seriously is that a lot of people are playing them. Ultima, EverQuest. In Korea, the game Lineage has a population of over 4 million people. It's said that it's the state religion. People who spend time there spend A LOT of time there. Upwards of 40 hours per week. Sometimes more total hours than in the workplace.

    Another reason--these are social spaces. They are complex places. Finally, these spaces are made entirely of code. For those of us who have drunk Larry's koolaid, then, these are very interesting spaces.

    Finally, there are real law schools giving real courses on this stuff now. Yes, we are doing this at Stanford. So you may officially take this stuff seriously.

    Virtual worlds are an opportunity to look at governance issues, etc., within the game. One aspect I want to focus on, though, is the property issue.

    I'll show you my favorite piece of property in this game. It's my home. I am proud of it. I designed it myself. Nice polar bear rug on the floor. Indulge me here; I am house-proud.

    I used to own two houses.

    Participant: Then you got divorced? [Big laugh.]

    Ah yes...well, that's another story. Actually, I sold my other house to a guy for 20 million pieces of gold plus the polar bear rug. I thought this was a pretty fair price. We had negotiated. This was informal. There might have been other ways that I could have sold this thing. I could have gone to the bank, for example. But there is another way I could have sold the house.

    I could have gone on eBay. Yes, eBay. If you go on eBay, people are auctioning off virtual houses. The houses are being sold for real money.

    Let's say I went to eBay and saw that someone out there was willing to pay $45 for it. I might feel cheated with my imaginary pieces of gold. But in fact, the imaginary gold is being translated into real money. 50,000 imaginary gold pieces = one American dollar. Okay, so I didn't get such a bad deal. The polar bear rug is being auctioned off for $25. The gold and the polar bear are each actually worth real money.

    Now, this is all very interesting to me. The fungibility of all these values. An economist named Edward Castronova has written about this. He has actually done a macroeconmic analysis of one of these games.  He calculated the GNP of the EverQuest. It's $135 million dollars. On the scale of national economies, this isn't a big deal. But it's doing all right. It's right above the great nation of Russia. Well above China.

    The interesting thing is, the 79th richest nation on earth does not even exist.

    Average wage of EverQuest players is $3.42/hour. You can live on this--in the imaginary world. And there is a class of players who just buy and sell stuff on eBay. They work that spread. They work it nicely. A handful make over $100,000 a year. Some are millionaires.

    This brings us back to our story. Black Snow Interactive is a group that works these games for all they are worth. They found out all the tricks of the game--ways to be more efficient at extracting value from it. They worked a number of games. They eventually ran up against a limit; the games took their valuable time. Finally they had the brilliant idea to farm out the labor. They rented out office space in Mexico. They connected a high speed line to this office. They hired unskilled Mexican laborers to play video games all day long.

    Black Snow invented thereby the fanatasy sweatshop.

    At a cocktail party, the story usually ends here. Said Marx: "All that is solid melts into air..."

    But it doesn't end here. Black Snow had a lot more up their sleeves. They were working under a shadow. The companies that sell the games don't necessarily permit what's happening at eBay. Some do, some don't. Everquest takes a less laissez faire attitude than others. They don't want you to sell your stuff on eBay. And in fact they have made sure you can't. eBay has verified rights owner clause; it works under [the DMCA?]. They asked eBay to stop this "ínfringing" activity.

    Is this a copyright issue? Or is it closer to a trademark issue? IANAL so I invite illumination. This is their stuff, so I imagine they do have some rights.

    Black Snow made the most money off of Dark Age of Camelot (Mythic). Mythic is not sure what it thinks. But they ended up asking eBay to ban accounts for people selling this virtual stuff. Black Snow fought this. They sued Mythic--alleged all sorts of things. Black Snow said "When it comes down to it, does the player have a right to his/her time, or does Mythic own it?" This is interesting, because this is a real argument.


    The companies themselves claimed that this was an IP issue.

    Everyone was interested to see what would happen in this case. Sadly, it didn't happen at all. Black Snow was more rapacious than expected. They received a judgment against them for a previous shady business venture. They got the fine and they backed off, scared.

    In a way, this is just as well. The side issues may have swamped the interesting questions that remain. I want to tease out these questions. Why on one level would it seem so natural for the companies to make an IP claim--and at the same time for the players to feel they aren't infringing any rights?

    These players come from a world--the real world--in which they still understand intuitively the first sale doctorine. They believe they have some form of ownership here. It *feels* as though they are operating under first sale.

    There are other areas in which first sale is starting to erode. People believe, for example, that they should be able to buy a CD and listen to it for as many times as they want. This isn't always the case, of course.

    There is also the question of the "freedom to tinker." Edward Felten--the notion that you have the freedom to discuss, repair, modify the devices you own.   

    So this is happening in these virtual worlds, too.

    But what does first sale have to do in a larger sense with the Internet?

    The Internet, we've heard, is  a place where you don't need the bottles--you've got the wine. Why are people trying to put the bottles back?

    Games question one of the basic underlying points of an economy--the idea of scarcity.


    What's weird about games, Castronova observed, is that scarcity is not bad. It's fun. The point of games is to get the polar bear rug because it is artificially scarce.

    This brings us back to the question: What is the nature of property on the Internet? These people *wanted* scarcity. And the Internet gave it to them.

    Property, as Larry explained, is not a thing but a bundle of rights. A bundle of code. The Internet is a bundle of code.

    I want to leave you with the image of this world. Because the Internet is a world that we create. Some of us are going to put bottles back. Some of us want scarcity. This story is about human desire.

    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.

    Jonathan Zittrain showed you a huge cloud--but what we have here is a large network where it is very possible to monitor the communications. Perhaps your children know how to do this, but they haven't showed you how. When you get an email, it is stored first at the ISP. They are not controlled by any mechanism. The administrator is God. He has the password. Many interrupt traffic as a routine.


    Intelligence agents like the NSA do monitor ISPs. Sometimes site adminstrators intercept data as well. But this is not common. More often it is a cracker--an evil hacker. An invader. They intercept traffic; and this is why we have a security industry.

    Some attacks are easy to prevent; others aren't.

    With interception, the challenge is in sorting through the data you capture. The NSA doesn't have this trouble; it has time and money. But here is what a capture looks like [shows screenshot]. As you can see the name and password of the user is easily visible. This type of information is extremely easy to discern.

    It sounds technical, but with the help of programs, we rebuild the data and it becomes more visually friendly. The programs make it readable. The numbers can be better interpreted.  I am showing you [shows animation] the way data can be retrieved: you can even see the amount of time it takes for a person to type an email. You can see the pauses. This information is recorded, so this is easy.


    Interception can be difficult to detect. There are no disturbed wires, for example. We only see the footprint of the programs that hackers use. What is the danger with anti-spam filters? Hackers can go in and tinker; they can make you receive what they want you to receive. Most don't want to spend the time, there, however.

    There are cases when interception happens due to the government; this might be more pernicious. The bottom line is that anything and everything can be intercepted on the Net.

    Another problem is that you have to guard data at sites like eBay, or government sites...we have huge databanks with data about Brazillian citizens. The rules that guard this data are vague. Sometimes there are firewalls, but it is usually easy for someone to procure, for example, a back-up tape. These back-up tapes are the size of a matchbox and can store untold amounts of information.

    This means we will have less and less privacy in our culture. Our lives are captured in databanks...and the new frontier is medical records online. What will happen when a celebrity comes in to have an operation? This will get leaked.

    Another serious problem: how is information aggregated? You go to a website and you enter a number; the numbers are well known to technologists. These are repeated everywhere; it's not difficult to decode with a program. I have gotten access to millions of names, addresses, personal numbers.


    I have registered a domain--a br domain--and I didn't register this numeral anywhere on the Internet. But nevertheless I started to receive lots of spam. So spammers have found ways to scour the Net to add to their database; they don't care who you are.

    Then there is the idea of a number inserted on your personal/social card. Imagine if the spammers get these numbers. This is an awesome power. People can also steal the credit card and gather the other elements of your identity.

    Let's talk about encryption. This is a nice measure against crackers and others. See what is written on my tshirt. I can read your email if I want. This is the warning. Computers are the fifth power--and you need independence from this.

    There is a bad side to encryption, however. We have people selling encryption that is of very bad quality. The user is not educated as to what is quality. People also think, "I am a citizen, I obey the laws, why do I need this?"

    Alas--the translation devices are no longer working. Hold tight; I'll be back when Yochai begins.

    Yochai steps to the podium:

    Privacy is heavily a matter of cultural specificity. In short, privacy has too many meanings. Primarily we are talking about two and a half. One aspect is constitutional concerns--government surveillence. Our sense in the US is that we should be protected against the government. Another big category is privacy and commerce. Transactional data collection and processing. There is spam; there is identity theft.

    What is privacy at its core? It permits individuals to control the flow of information about them. I am the subject of information and I have the right to control this. What values are served by this preventing or limiting the flow of information?

    One of the things the US doesn't have is a well-developed conception of individual dignity. Dignity could certainly be a central value to protect. In the US you come up with various questions of freedom. I do things in my house that may or may not be legal; and I have a sphere of freedom from law. This is interesting. A sphere of freedom within my home--rather than a concept of dignity.

    Easier to understand is freedom within the home from social norms. We are free from gossip or censure in our homes.

    Do we have a sphere of freedom from market actors? From the market decisions of others? This is also important.

    Finally, what about the power of self-definition? This comes up with the concern about data-profiling. Data mining. I am constructed by the other through this profile. At the same time, as I said before, there is the control exerted through your window to the world.

    As a practical matter, though, privacy is about a cluster of pressures. Practical inefficienies of the past actually protected us. The loss of inefficiency is a loss of freedom. Our conception of privacy in the US changed after the advent of yellow journalism. The upper classes didn't like invasions of this sort; they therefore "invented" privacy.

    Destabilizing factors: technology. Ubiquitous communications capacity. We can process data about people very efficiently. Both of these together lead to profiling and data mining.

    One danger: customized preference formation--advertising. Customized pricing. If you are willing to pay more, I will charge you more. These are the motivations. The customer's lifelong purchasing pattern has become very valuable.


    Total Information Awareness. This is a connection of intelligence and enforcement agencies that used to be disconnected by law. The constraints are being eroded. Commercial + government is very powerful indeed.

    We have the concept of fair information practices. Minimal standards are imposed by law. We have the Privacy Act or 1974, video rental laws, COPPA, HIPPA.

    OECD guidelines: among them, collection limits, data quality, openness, individual can monitor his/her own data.

    The major issue--the opt in or opt out version. In the EU, opt in for sensitive information. In the states, opt in for data about children.

    Related issue--how easy it is to signify yes or no--opt in v. opt out. Will you suffer loss of service if you do not provide your information?

    There are also issues RE post-permission processing. What happens to the data after the fact? What about sharing the data with a third-party?

    What about regulatory approaches? There is self-regulation with or without teeth. There is also technology. We have P3P and DRM-style models. This assumes a level of knowledge about your own privacy.

    Question is--who bears the burden of privacy? Collectors or subjects?

    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.

    Today we have Jonathan Zittrain, who along with Ben Edelman has for the last year or so been conducting a number of fascinating studies on Internet filtering worldwide.

    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.

    I'm not going to use the word jurisdiction--instead, "problems with boundaries." We have a global Internet but local laws. As John Perry said, on the Internet, the First Amendment is a local ordinance.

    Problem is that you must answer to a faraway someone--a foreign sovereign--even when you say something right here at home. If a sovereign wants to be a good sovereign, the sovereign wants to stay within proper limits--when should it have the right to intervene? Perhaps on the basis of some form of presence in the country.

    If I hold out a banner calling a sovereign a bad dancer, I am certainly liable if I am in the country. But what if it's simply that my data is raching the country? There have been case where the path that the data went was in question.

    Other than presence there is the basis of impact. If there is an impact on me, I have the right to do something about it. General Noriega has been subject to the US in its thinking on jurisdiction: very expansive. We said we were affected by his activities.

    This problem gets more problematic when we consider that we might have to anwer to everyone's jurisdiction at once. Might not this mean that you may then be subject to the most restrictive jurisdiction out there? Yes.

    These issues have caused unhappy lawmakers. The behavior you don't like is moving overseas. How can you get your people to obey.

    Example # 1: iCraveTV. Details. The guys that ran it were from Pennsylvania. Their company was incorporated in the US. But they transmitted from a Canadian server. US copyright law says you cannot retrasmit the TV broadcasts. Canadian law was more murky on this point.

    A lawsuit was brought in Pennsylvania. This is not a traditional "jurisdiction" case. The court clearly had jurisdiction. But it is an issue with boundaries. The US said--we don't care if it's transmitting from Canada. The illegal material can be accessed here.

    iCraveTV put up a notice of some kind. It requested that you not be American.

    This did not please the court.

    Larry Lessig: This is not the iCraveTV. Didn't iCrave come back with a proposal that it actually would block 98 percent? And didn't the Court say, That's not enough?

    Jonathan Zittrain: I believe the judge was simply fed up.

    Bracket iCraveTV; it's a bit of a sensitive spot.

    Here is iCraveTV writ large. This is "Sealand." In 1967 a man who called himself Prince Roy claimed this as his country. In 1998, the height of the dotcom boom, he suggested putting computers on the island, and it would become a "data haven." This would put your data beyond the reach of judicial process.

    So far it's not clear this has been a successful business venture. "Haven Co." runs these computers. As in the iCraveTV case, physical presence means a lot.

    There is an acceptable use policy by Haven Co.--you cannot 1) spam, 2) hack, 3) offer child pornography.

    Someone is providing Sealand with connectivity. They are under the power of the ISP--so the more informal kinds of enforcement affect Sealand.

    Allen Gupnick lives in Australia--a businessman powerful in Australia. Barron's Online wrote an article entitled, I believe, "Unholy Empire." This was available by subscription in Australia.

    So where can he sue? In Australia--it's easier for plaintiff to get a favorable judgment. But the article was generated from New Jersey. Lawyers from Barron's said it should be tried there. But Gupnick said his reputation was damaged in Australia.

    Participant: Perhaps he should be tried where the site is hosted?

    JZ: Like Sealand?

    I'm not so fond of this. The servers can always be moved.

    Participant: You can hunt the ISPs to the end of their days.

    JZ: Is this a good thing or a bad thing?

    Participant: You should have both--both where the action originated and where the harm was felt.

    JZ: From a jurisdictional viewpoint, you can sue the person where the material originated. You can also go where the harm was felt. This is what happened in the Gupnick case. The Court ruled for Gupnick.

    A problem--you could write an article vilifying an international cabal. Then would all the countries have jurisdiction at once?

    Participant: There is another approach--the way China has been doing it. ISPs are filtering content.

    JZ: You have anticipated some forthcoming slides. [Big laugh.]

    The other angle--the source could adjust content according to its markets. The other participant said the reponsibility should be with the ISPs. And then the third approach--this filtering, as you say. It's stopping the trucks with the newspapers at the border.

    This actually happened.

    How do we solve this problem? If the Net is global--perhaps we could make a "global law." Canada after iCrave updated its laws; attempts to harmonize with the US.

    But this is hard to do.

    Another example of this is the UDRP. The UDRP is one set of vague rules, applied globally.

    It doesn't trump any sovereign's laws. It coexists. You do have recourse. There isn't automatic respect for a UDRP decision; however, it is expensive to go to court. The reason the UDRP works is that it is all based on a series of contracts. And the penalty is that the domain name is simply taken away from you. There is no opp. for civil disobendience. You lose, you lose.

    Another possible way to solve the dilemma--let's not have global law--instead, let's have local Internet.

    How might this work? You might control it at the source--the "check a box" solution. One example of this might be the Yahoo France case, with Nazi memorabilia. France has a law against this. You cannot display this material.

    Nonprofit org. brought a lawsuit against Yahoo. The question for France was...we don't want to run the world--in the choice between everyone and no one seeing it--perhaps there is a way so that only the French can see it.

    A panel of experts decided this was possible. You can use technologies like Quova. By using rough calculations it is possible to figure out where someone who is hitting your website is coming from. Can people get around this? Yes. But it's a small number of people. The fact that there are locksmiths doesn't mean you don't use locks.

    The Bovinity Principle is with us.

    The French courts said you must take all reasonable actions to block this material in France. Yahoo launched another suit--this suit was to ensure that no damages would be charged. That the US courts would not uphold damages. French courts said, OKay.

    The panel of experts were attacked by their peers, who wanted a global Internet. They actually retracted; but it was too late.

    Participant: This would be more scary for Yahoo France. I talked with the judge. He was thinking about France being able to have access to other sites.

    JZ: Here the judge is convinced that the French border could be maintained.

    Example up here [shows slide] is two flavors of Google. and Search results are different in each case. Stormfront white pride is *nowhere* on Someone in the German government called Google, asked it to take it down. Google clearly obeyed.

    Google also takes down pages if asked to do so under the DMCA. Google has been sending the notices to

    The other way to localize is to do it "near the destination." The Pennsylvania solution.

    This solution is at the level of the *destination* ISP--not the source ISP.

    Example: China. China aspires to have the China Wide Web. An intranet the size of the country with narrow gateways to the rest of the world. Routers can get programmed to ignore certain destination. The government says to ISPs--if you get a packet from here, drop it.

    What we did from Cambridge--we did a dial-up to China. We compared what we got from the US and from China. After three weeks of these tests, we found the modems would no longer work together. Then we got access to open proxys in China. We use these proxies to ask for site after site: 80,000 sites. You're not blogging this, are you Donna?

    Some of the results we got: we asked for "democracy," "tibet"--these hot-button terms. Most did not show up in a Google search. MIT is blocked from China.

    Our study was posted at Berkman--Berkman was blocked. Harvard didn't want to serve the study either.

    Harvard didn't want to take the risk of getting their site shut off.

    Speaking of Google in China--for while you would type in, you'd get a whole other site. This happened for a while and then it stopped.

    Participant: I thought this was impossible! I thought you couldn't divert requests.

    JZ: But it is indeed possible. It blows my mind, does it blow your mind?

    One theory about why Google was singled out for redirection is that there is a link in Google called the cache. You see the history of the site. Show me what Google saw--not what is present on the site now. maintains old snapshots of old websites. China--does it keep most of the cattle in the fence.

    Marina [?]: Not only do they filter the Web, they filter the content of email. I know someone who came to Canada and he was amazed at the Internet he saw. He sent an email to his wife about it. The email bounced back.

    JZ: Filtering is starting to get more subtle. It's hard to say how that might happen...encryption of email might help here.

    One other phenomenon that is more subtle--if you run a search for a controversial term, you will simply get dropped off after a while. China may be sniffing packets.

    One more example closer to home. Pennsylvania. Pennsylvania can make an ISP locally block a website. There was a child porn site. Worldcom has to block under this. Worldcom controls a whole block of sites. This could become the latest fad.

    Sometimes it's blocking at an IP address. IP addresses can be transferred. But Pennsylvania is still blocking it.

    The end result is that there is no longer a global Internet. Iatrogenic. This is when the cure kills you. Cantonized. My Internet different from your Internet.

    What I am trying to do at the Berkman Center is a SETI @ Home style project. Your computers can be saying, "Here's where I am, and this is what I cannot see." We could have a real-time map of the world, showing what's blocked.

    Participant: Are you interested in research, or would you want to offer proxies?

    JZ: Triangle was meant to do this. But my project is simply "veritas." I don't want to get into the cat-and-mouse game.

    Participant: Proxies can be used for nefarious reasons.

    JZ: This is why I said jurisdiction is the last question about the Internet. Are we globalists? Or are we saying no--the rule of law in the world today is not the UN. If a country does not gamble, isn't it a good world when they do not have to have gambling coming in the door?

    It's the idea of "global rights"--we even have legislation pending in the US.

    Copyright is the other thing. If we are champions of copyright, we protect that. There was a lawsuit that lasted for a week. Many US companies sued one tiny website in China. But then the RIAA said, "Just kidding." So we don't know what would have happened.

    Participant: This is about subversion in cyberspace. Are there laws about this?

    JZ: The countries in the lead on destination filtering--their strategies are leaking elsewhere...if you are a blogger, do you know what the rules are about libel, etc. Google can find blogs. This is real power. If this is shut down, it will feel worse because the potential of this kind of speech will be lost.

    Participant: What about networks "authenticating" people on the Net.

    JZ: Larry saw this coming in 1995: the zoning of the Internet. Engineers like freedom. But they hate spam. The accountability mechanisms they develop can be re-used for worse purposes than controlling spam.

    Internet 2 is coming.

    Participant: Is this a good policy, then? Most universities are adopting this and it will go to the tech industry.

    JZ: These technologies that make your life "better"--for example, they know you are in Brazil, so you get customized material you like. But then again, they know where you are.


    I better identify with people who want to get information out there, than I do with those concerned with libel, etc. I err on the side of information freedom. This would be ideal according to my parochial view. China may allow copyright violations; it will block subversion. We will allow subversion; we will block copyright violations.

    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:

    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.

    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:

    Our problems grow despite the growth of democracy. It is possible to use democracy to fight democracy. We face a central paradox--we have more democracy, but growing problems.

    The question is, will the Internet help this situation or make it worse?

    There are presuppositions when we think about democracy. The idea of the citizen. In the simpest terms, the person affected has the right to participate in the decision-making that affects him.


    There isn't one and only model of democracy in the world; there are several. R. Dahl has asked: How democratic is the US? We in Brazil and US believe that an independent judiciary is necessary.


    One man, one vote is not what happens. A vote in Wyoming is worth 6-7 votes in California. The arrangements a society decides upon affect this--affect whether or not we acheive this ideal of democracy.

    The process must serve the problem; if it doesn't, we don't have a democracy.

    We have a crisis in a certain kind of democracy. People in London were carrying a banner against Blair. Voters in England said "Mr. Blair, not in my name." We live in a world where representative democracy is insufficient. There is no democratic representative in the deeper sense.

    We see that becoming a member of a party is becoming less and less popular. The group "representing" us is not truly representing us. So what we have is a democracy of hopelessness.


    I see a resurgence of a demand for true democracy. But it is diffuse. People demonstrate in the streets, but there is no organization.

    How does the Internet fit in this context? Let's see if we agree on some ideas here. The Internet contributes to the diminishing asymmetry in information. Knowledge is power. Publicizing your ideas is a weapon for democracy. If the citizens aren't informed, they cannot participate. "Public opinion" is then manipulated, a fallacy.


    The Internet can communicate the asymmetry of information...I can be a politician throughout the Internet; I can move easily; I am the center; the actor; the player. The Internet bypasses the classic institutions of liberal democracy.

    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.

    When one thinks of Internet democracy, the first thing we think about is voting. But let's look at ICANN. ICANN tried to rise to the challenge: Can we govern ourselves? The structure that was created turned out to be fundamentally flawed. The "citizen of the Net" was not well defined. The process was not engaging. It wasn't designed to guard well against capture. At the end of the election ICANN had, people recognized more than ever that democracy is a lot more than simply electronic voting.

    As to electronic voting, I gather you in Brazil are way ahead of us: that you vote primarily through electronic means. You are to be congratulated for this, despite the lingering questions about security. 


    I gather that there has been little problem.

    Participant: It's not quite the way you put this. There have been improvements in the voting, with the machines being equipped with paper so that we can verify results. But it is not perfect--questions remain. And there was political resistance to including the mechanism for printing results.

    Participant: I hope I can be of help. What Professor Nesson has just said is generally accurate. Perfection cannot be reached; it's impossible. But we are in a position of hopefulness. Not even bandits with guns in their hands could intimidate people with voting machines; you have the ability to press the button. We are much ahead of the situation in the 1940s and 50s.

    Charlie: How many are in favor of electronic voting in Brazil? [Most are in favor.]

    Participant: I find it odd that someone in the first world is saying that we are ahead of you!

    Participant: If I have the assumption that the machines are run by code, and we can't have it, I don't trust this. What if the votes are recorded on a floppy and that is tampered with?

    Charlie: So let me ask you a question. The gentleman back here points out that it's perfectly possible to print out a paper that will verify electronic votes. Would you be satisfied then?


    Cora [?]: I have written a lot about electronic voting--there are a lot of pros and cons. We have had a discussion; the closed systems can be audited. I have to say that the machines were champions. Easy to tamper with--perhaps. But very, very hard to hide the tampering.

    Particpant: I must explain something. I have been living here for 30 years. Voting for 28 years. There has been an alteration in the election code that the printers should be introduced--yet it wasn't in the budget for all states to have the printers. This surprised me. Then people started to say that the printers weren't necessary at all. I have doubts, and we all do, that haven't been cleared. There is a difficulty about having this examined by the electoral justice. This remains worrisome.

    Joaquim: Two issues to comment upon--one, we had the repblic first. Only a small number voted: 16 percent. After 1946, we have more than 50 percent voting. This is growing--there is no drop. Our system have been perfecting itself historically.

    Second, the discussion about technology is important because even if we have failures in the system, this is a tool we can import for helping more to vote.

    The institution of legal model that we have in Brazil gives us labor and electoral justice. Concern about machines is natural. But electoral justice as a whole should be the focus.

    Participant: I am from Argentina. I have a question addressed to Joaquim. But first a comment. We have had resistance in Argentina to adopting electronic voting machine. The reason: It is too transparent. Too efficient.

    [...missed a bit...]

    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?

    We'll see.

    Jason begins:

    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?

    Let us consider the long-term cycle of innovation. One of the interesting things in breaking down this process is that you find that govt. has supported the birth of software--yet the lion's share of innovation has come from private industry. It is the ongoing combination of public/private development that is interesting. You have tech transfer to business, but that cycles back to universities where the tech was incubated. Professor Benkler's example of Google is a perfect example of this interesting combination of public/private interests.

    Discussion of open source most interesting in the area of how it is developed. But there is no "right" way to develop software. The quality of the programmers matter. Project managers matter. These managers tend to be strong and provide guidance.

    Interesting phenomenon is the commercialization of open source. Open source wouldn't be as integral to business today without companies recognizing its importance. Contrary to what Prof. Benkler said, IBM does sell software. [...]

    Overall, the industry has been moving to the middle. This has happened even since I last debated Larry at the last ILAW. Industry is embracing open source.


    How are companies looking at software? De jure and de facto standards. There is a core set of functionality that every company will do. There is some competitive differentiation: whiz-bang stuff. You take the de facto standard--you reduce direct commercial opportunity here to drive other business goals through services.

    For us, the way in which we can differeniate ourselves is through innovation. I have a Tablet PC and this is a rethinking of text. This creates value.

    What is shared source. It is not open source. But customers have said to us: having source code = good. We are taking 85 percent of source code available to certain governments/countries. we stand behind our exisiting business model. Windows CE 3.0, Passport Manager, etc.--they can use, modify and not pay us a license fee.

    All of this is not meant to downplay importance of community development process. Public domain software, etc., has definitely been around. It is a big contributor.

    People should be acquiring software based on value for money--not on how it was developed.

    Vendors must still bring value to the equation. They talk about "vendor lock-in," but if the software doesn't deliver, it will be dropped.

    I think it is a mistake to dictate how software is developed. They should be able to choose the model that works for them.

    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?

    There are four models we are talking about, not two. Free and open source software, shared, and then proprietary. We see increasing migration from both ends toward the center.

    We have to keep in mind the extremes to make clear what is at stake in this debate. Proprietary software is offering the user one thing. The other three choices offer two things. Proprietary offers machine. Others offer the machine plus the plans.

    Let's make clear what you're getting.


    All four kinds are still protected by copyright. Proprietary is most restricted.

    Open source gives you code + slight restrictions. Shared gives you code + variable restrictions. Free gives you code + GPL.


    The GPL is at core of the biggest conflict between open and closed software.

    GPL embraces the copyleft idea: share and share alike. You release the software under the same terms that you received it. This is as powerful a restriction as the restriction on proprietary software.

    There are restrictions that GPL and proprietary impose. At the same time there may be other benefits [...] Do either "destroy intellectual property"?

    Is the software free? Is it good? Can you learn/teach? What is the strategy? Does it destroy IP?

    Software with code available: it's a better teacher.

    Dave Winer is one of the most important figures in software and a pioneer in the blogging space--but Dave says that having the source open doesn't help you at all.

    What about strategy? What software is a better tool for competitive strategy?

    Unlikely that open source software can be used in this sense. It's not possible under the GPL. It's easiest with proprietary software--you own the code and you can easily hide what you are doing.

    This point about strategic behavior is not a point that MS contends. They have said broadband should be provided on a neutral basis--that is, it shouldn't discriminate among software application. This would give them the ability to dictate the future.

    Policymakers are being pushed by both consumer groups AND MS that broadband be kept neutral.

    There is a claim that GPL destroys IP. That it's viral. If GPL gets too close to proprietary software--how close is too close?

    Open source poses no such threat.

    Proprietary, no such threat.

    But free software and shared software--this remains in question. I argue that it *is* possible to combine proprietary and GPL and have it work together.

    Which software should we prefer? Each actor should decide what is in his/her best interest. If you are a government, for example--you might value transparency. Think Carnivore. People wanted to see source code; government said no.

    The second thing the government might consider--it might want both the machine *and* the plans.

    Most important to maintain the "rich ecology" in software. What are the real ecological threats? The most threating is not free software but instead software patents.

    Bill Gates said in 1991: "If people had understood how patents would be granted when most of today's ideas were invented...the industry would be at a complete standstill today."

    Established companies have an interest in excluding future companies.

    The only thing we can be sure of is: patents--bad.

    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).

    Yochai begins:

    I'll talk first about freesoftware. What is it? How does it work? What legal arrangements lay beneath it?

    Free software is only one instance of a broader phenonmenon: commons-based peer production.

    Free software is hard to ignore: it works. Apache is a free software web server; it's used everywhere. Important to recognize here that this popularity isn't about price sensitivity. It's just better.

    Linux is also beginning to capture the UNIX market quite extensively. It's getting harder to ignore this success.

    What is free software? It's not proprietary. Proprietary depends on exclusion; you must pay for it; you cannot learn how the software works; you can usually only customize it within very narrow parameters; and you cannot redistribute it.

    Free software reverses all of these decisions. I give you the software under a license under which you can use it; study it; adapt it; redistribute it; and make and distribute modifications (improve it).

    When you make & redistribute it, you come under copyleft. What is copyleft? The identifying characteristic of free software is the freedom of use, not the price. "Free speech"--not "free beer."

    How does a free software project look? One or more programmers write a program and release it on the Net. There is a mechanism for adding patches, fixes, modification. There is a central location for this. Answers various questions about the project's development.

    We see volunteers with different levels of commitment and influence in the project. No one has exclusive rights in the project. A very open dynamic process, based on the fact that anyone can come and see how the project is developing. [Excellent book on this by Glenn Moody: Rebel Code.]

    Let's compare three models: property, open access and copyleft.

    Property is institutional core of market-based production. Property allows a firm to say you can work on this project--but you can't.

    At the other extreme is the public domain/open access. This is has one weakness: when Disney goes to the public domain, takes Snow White and makes a movie. The movie is now Disney's. It is property.

    In the free software community, this is a legitimate fear. It can easily be stolen if it is not protected in some way.

    Richard Stallman came up with a solution--it's called copyleft. This isn't released into the public domain. You can make modifications--but if you do, you do it on the same terms that I gave it to you. When you make your modifications, and distribute them, you must adopt copyleft. You don't start a development process in which it can be stolen; so people can contribute without fear that one day they will no longer be able to use it.

    You can distribute the software either for free OR for money. Distribution, though, must be accompanied by source code. Clear notifications of changes and attributions.

    This is difficult for business models in which the idea is to sell units.

    The license runs with the program--it's not a contract. No matter how many times it is redistributed, the original rights are retained despite any contract.

    GPL and Open Source do not discriminate between commercial and noncommercial free software.

    There is a division between groups who use "free software" and "open source software." It's more of an ideological than a practical distinction. I use the terms mostly intrerchangably.

    Copyleft v. Public Domain. Copyleft reduces opportunities for defection in the game theory sense. Reduces inecentives to adopt proprietary strategy.

    Two or three questions--anyone?

    Participant: You can sell this software--so can't you reduce access?

    Yochai: It's the quality of access that matters. There will always be a free version available. There is an enormous disincentive to price it if someone else can develop something just as good and is giving it away.

    What I'd like to do now is suggest that free software is perhaps only the most visible of a much larger movement. I define peer production in terms of function.

    You should have various sized collections of people who effectively produce information goods. They do it without *price signals* or managerial commands. These are decentralized orgs that don't operate on the price signal.

    Fascinating thing about peer production is that it works without these elements: no price signal, no managerial command.

    This is succeeding, as we see in free software, in *beating* the traditional mode.

    This could be seen as a parallel to distributed computing. Human SETI @ Home. Lots of people contributing time as they yet meet success.

    Here are some examples:

    • Academic research--I am not told what to research, I put my materials out there for comment and critique, etc. This is has worked without "the market" per se.
    • The Web. This is created by thousands of people, working largely independently.
    • NASA "Mars clickworkers": Everyone looks for interesting features--craters--on pictures of Mars. People help contribute to mapping Mars. After 6 months, they had 85,000 contributors. The results were practically indistinguishable to the results of a ten-year study by a group of Phds.

      What NASA tapped into is a vast ability among our community. In fave minutes away from the TV.

    • Kuro5hin. This is collaborative journalism. This is peer review. It disappears if people do not like it. The community votes and the cream rises to the top. 25,000 people participate in this project.
    • WikiPedia. They have over a 100,000 entries in English. More is coming in other languages. You cannot say this is worse than
    Interestingly enough, peer production can be incorporated into the market. Prime example: Google. This is peer production of relevance. How many people think a page is good determines the judgment we see Google make.

    Contrast to It gives results according to who pays most. You get better ranking if you pay more.

    Overture isn't exactly politically neutral, either.

    Yahoo's claim to fame was that it had employees who looked at pages, decided what's good or bad--what's worth your while. The Open Directory does the same thing. Human beings also decide this.

    Internet law journals via Yahoo: three journals.

    Open Directory: you have many, many more. Yahoo employees v. 40,000 volunteers in the Open directory project.

    People ask: why would anyone do this kind of thing? Everyone has different motivations--extrinsic, instrinsic. Some people do things because they are fun. People like to be with other people. We are social beings. Reputation building is important.

    At a more abstract level we can say that any person will respond if the total rewards of doing something make it worth it. Rewards can be hedonic, soci-psychological, etc. At the end of the day, money is no longer the factor in motivating your behavior. Money and social behavior don't necessarily go together. Sometimes it is inappropriate. You don't leave $ 25 on the dinner table after you have dinner at a friend's house.

    If you only need small contributions from everyone--peer production will always win.

    One of the fascinating things about distributed computing is the fact that my computer can do it in the interstices of the day. People generally won't do this for small amounts of money. They do it if they see that they are "part of something great."

    People act for reasons other than money--as long as there is the right framework for contribution.

    Peer production is not limited by the total complexity of the project. This is because you break it into little bits. There is modularity and granularity. Small contributions. Build it in such a way that it gathers this intelligence easily and simply--and you have a good peer production model.

    Is peer production a blip? A fad? Or will it stick? Is it a feature of the network? Human creativity, time, attention, will, perspective, etc,--this is what's central in this mode of production.

    What's the value? You get distinct information gains. Who is the best person to do a job? In peer production, you have openness and you have people voluteering the solution.

    [...Shows diagram...]

    The last problem raised in this context is "the tragedy of the commons"? Don't we have a lack of control here? There is a literature on commons that work. Information is non-rival. There is never a problem of allocation of information.

    A worry--defection. Answer--formal rules of law. You can use technology--at Kuro5hin, no one can kick you off without a certain number of negative votes.

    Social norms are in place to regulate this as all.

    Redundancy helps. 20-30 people look at a square: average out the mistakes.

    All of the successful systems have a method of peer review. You do get, "this contribution is not up to our standards."

    Slashdot: over a quarter of a million users. People write blurbs, do peer review, peer reviewers are reviewed, and the whole system runs on open software. So sometimes integration is provided by a market actor.

    In sum, free software and peer production offer a wide range of fascinating opps for reorganizing information and cultural production.

    Distributed proofreading project for Project Gutenberg: thousands and thousands.

    Terry: One anecdote. Larry Lessig yesterday mentioned the Mexican government's consideration of extending copyright to forever minus a day. 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:

    What I want to do in the next half hour is innoculate you against a disease that is spreading in the US. Here's the idea. I will first introduce two concepts familiar to some of you. The two together have infected American thought. First: property. We Americans love property. We think property = freedom, and efficiency.

    Second idea: rents. Rents as economists speak of it. The thing that monopolies produce. You can charge higher than competitive price. This is an irony--as everyone in the states seems to like "free" competition.

    The reality in economics: it is not contested that monopolies are bad. As one scholar, Richard Posner, says: what is lost in monopolies is public choice. Rent-seekers spend money to defend their monopoly. They would spend the net-present value of the monopoly to protect it.

    Whenever we create monopolies we create an engine of political power to defend the monopoly. 20th century policy makers understand this. There are anti-rent-seeking movements.

    Rent-seeking bad. Property good.

    What's the relationship between the two? Intuitively, we think--well, there's nothing. Property is the enemy of rent-seeking. This is true most of the time. Something, though, property is created to faciliate rent-seeking. Sometimes, then, property is bad.

    We just lost a battle about copyright term. Our Constitution used to say that copyright was for limited times. This has been erased by our Supreme Court. Copyright has grown 11 times in the last 40 years. The most recent extension was for 20 years.


    Why is it that governments keep extending copyright? Prospective copyrights and retrospective copyrights--there is a distinction. Is Congress trying to increase the incentives to produce new work? Well, let's try out that theory.

    The value of the current term versus the value of perpetual copyright. Current term offers no less than 98 percent of the value of a perpetual term.

    The term is already effectively perpetual. Justice Breyer quibbled with us--we were wrong. It is 99.997 percent, not 99.998 percent.

    This has nothing to do with providing incentives for new work. These extensions, then, are targeted at retroactive copyright. It's to preserve the value of works that have already been protected for a long, long, long time.

    This system produces no efficiency gain at all. Milton Friedman, one of the most conservative of Nobel Prize winners, agreed with this. This is about rent-seeking.

    The next time this issue comes up, people will again rise to extend copyrights again.

    Is there any benefit to retroactive extension? Mickey has been locked up for 78 years--longer than Mandela. That's not what is important about this debate. The real thing to think about is all the other stuff that remains locked up. That cost is substantial.


    Brewster Kahle wanted to take out-of-print books and create the library of the Internet. 9,883 books. He wanted list to contact copyright owners. But there is no list. It is a burden in itself to get permission. This is an extraordinary legal mess to untangle.

    Of all the creative work produced during certain time periods, the vast majority isn't available. This work is locked up and the costs of identifying the copyright holders is too high.

    Hal Roach studios wrote what I think is the most poignant brief in Eldred. They make money on Laurel and Hardy. But if CTEA is allowed to stand, these treasures will disappear. Hal Roach said all this film is nitrate-based. It will decay. By the time the copyrights expired, the films will literally disappear.

    We, the Berkman Center and I--we took this to the Supreme Court and we lost. We were asked, "You want the right to copy verbatim other people's books, don't you?" We were pirates in the eyes of this Justice. We said framers said "limited times,"--it must be that copyrights must come to an end eventually. He didn't listen. He thought: property, good. Eldred, bad.

    Why are we at this moment? I love property. I am not a communist. But rent-seeking is bad. Some property is just rent-seeking.

    We are trapped by this new rhetoric. Property talk is powerful.

    Yesterday Yochai and I were talking about how selling spectrum is also a kind of rent-seeking. There too we should be skeptical. Property is not always good.

    We are lawyers trained to use the word "property." We are licensed to use this word. We should be subtle in the way we use it. It's a bundle of rights granted by the states--limited in important ways.

    Ordinary people think property is absolute and forever. They believe they should own whatever property they have forever.

    Jack Valenti--the Castro of Washington--has been making a simple argument for many years. He says that creative property owners deserve the same rights as those who own other types of property. Congress gets tears in its eyes. They believe Valenti.

    IP should be limited by fair use. IP is not real property.

    We live in a culture that cannot make this distinction. This is an infection that is spreading around the world. Mexico has now decided to extend it to life plus 100. Then, after the works enter the public domain, they want people to start paying the government for it. This is truly innovative.

    Copyright has changed--its duration has expanded, its scope has expanded, its reach has expanded, its force has expanded, and finally, there has been a copyright concentration. The publishing monopolists now control the creative process in an important sense.

    Never before in history have the copyright owners had this level of control over creativity.

    We've fought this. We tried the courts, failed. We tried Congress; it's been bought. Now we're trying something else.

    There are some people who want to control some of their rights. They want some but not all.

    In the beginning of the Internet, there was no ability for anyone to control content. This caused a backlash--the default assumption now being that people want ALL rights.

    We need to recognize and protect the people in the middle. We are doing this with Creative Commons--this was started by the Berkman Center among other organizations.

    This is a "some rights reserved" model. We have licenses designed to build a layer of law for people in the middle. You can pick a license that produces code that you can attach to your content. Three layers: readable by human beings, readable by lawyers, readable by machines.

    This will enable us to offer technology that will give a user what they want: content that is free for use.

    This has produced the CC license. This is an expression of freedom. The author should have control.

    Next project is iCommons. We want to port these licenses everywhere in the world. Equivalent functionality everywhere. We have 250,000 people who have already adopted the CC license.

    We also have the "Founder's Copyright"--we will announce soon the books O'Reilly will publish under this copyright.

    We also have eFounders copyright--it is for software. Creators can keep proprietary software for 3 years--open afterward.

    The aim is to build technology that enables us to share our work and have others build upon it.

    The advent of the Internet is an extradordinary opportunity. The technology will allow us to achieve what Terry Fisher calls "semiotic democracy." We have a role here, we lawyers. We can let people know that there is a distinction between IP and real property.

    If we don't change this rhetoric, we will lose this opportunity. If lawyers around the world keep genuflecting to the extreme view of IP that Americans are pushing, we will all lose.

    Brazilians are expressing a traditional "American" view by advocating balance. Please keep insisting on a balance between protection and freedom.

    Yochai steps to the podium:

    Let me try to do a quick though comprehensive mapping of a series of issues that are the most pressing currently in the US policy agenda.

    Sources of pressure. And where the battles are in this struggle.

    Technology creates pressures on social and economic structures. This translates into specific legal challenges.

    Pressures from industrial information economy interests--represented by such groups as RIAA and MPAA.

    E-commerce--the pressures caused by transition to this. Marketing/privacy; digital signatures; electronic payments; warranties (eBay, etc.)

    Security--the pressure from desire for security. Old fashioned crime. Pornography. The need to protect privacy, free speech.

    Infrastructure deployment--the pressues from this push.

    What is the industrial information economy? 150 year trend of conentration and commercialization of information production. As society grew and people connected over distance, this was enabled by printing press, telephone, then TV.

    As the industrial revolution increased our production capacity, our need to communicate became more important. We saw emergence of a system of communication oriented toward controlling social processes.

    The creation of the fixed copy similarly created the possibility of capturing culture and disseminating it to many.

    In the network information economy--there is the possibility for reversal of this structure. Human beings rather than capital become the organizing principle in communications systems and the information environment.

    We now have a post-industrial stage--centered on the human beings. case; "My Grandmother"; CPHack; Live365; Phantom edit.

    Imagine a child taking a piece of a movie and writing a paper in a class and saying, ''this is my grandmother." Should this child have to ask permission to quote her grandmother--to show the clip?

    Another example: CPHack. There was a filtering program and two computer scientists tried to find out what they were blocking. The license did not allow this. You could not look under the hood.

    Live365: thousands of radio stations take advantage of license to stream music. This site allowed tens of thousands of playlists. CARP set royalty too high for this to continue. They die.

    Phantom edit--a fan took out Jar-jar. People thought this was wonderful. Many views of how this story could be told. Inconceivable before network economy.

    This poses a real threat to the industrialinformation economy.

    Opposing forces:

    * Anti-circumvention is met by DMCA, 2600, Sklyarov, CBDTPA, * clickwrap licenses are met with CPHack, * Term-extension is met with Eldred, Wind Done Gone, etc., etc.

    We need to understand "trusted systems." These are systems constructed to obey third parties as against the user. These systems can control many more uses than the law can.

    Trusted systems are hard to achieve with the general purpose computer.

    DMCA said it is illegal to open up the protective software--to use the content in a way the third party has not dictated.

    DVD case and ElcomSoft. The primary problem is that what Larry said about the CTEA is true about these situations. We need balance. Trusted systems don't care about balance. The owner decides. These laws back up trusted systems.

    The trend is away from the general purpose computer to something more like cable televison.

    Clickwrap licenses essentially do the same thing--it is not bound by "balance." Are they enforceable or not? A string of cases said no--but lately, the trend is turning around. Click-wrap may be becoming more enforcable, and they are at the same time becoming more popular.

    Another way of controlling information flows--target the ISPs. The basic idea is to target them with contributory charges.

    With DMCa there is a "carrier exemption,"--but then we have the Verizon case. Jonathan Zittrain has begun to investigate a case where the receiver's ISP is targeted (Pennsylvania).

    We are beginning to see increasing pressure on ISPs.

    Databases. Copyright does not protect raw data.

    We also have patents--business methods patents. The primary pressure point--the Patent Office appears to patent most anything. Balance is destroyed.

    Patents on standards. Interoperable systems depend on standards. This is a serious concern.

    Finally, we have information about information--that is, deep linking issues (Bidder's Edge/trespass), linking as DMCA liability. This is open for abuse. Truthful information can be constrained in this way.

    These are all rights that prevent one person from getting truthful information about something from another person.

    Wrap-up--current issues arise when the technology applies pressure on socail and economic practices and players.

    This is a battle between 19th and 20th century mode and the emerging 21st century mode.

    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."

    Stay tuned.

    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.

    Terry begins:

    This will be in a different format than this morning's session. The question: Now what? What can do to reconfigure the situation in socially constructive ways. I will offer three scenarios--each of which I think will be better than the current state of affairs. After I present these proposals, I'd like to open this up for discussion.

    Three models: Private Property, Regulated Industry, and An Alternative Compensation Proposal.

    First scenario: Private Property. Take recording industry at its word. [Reads quote from RIAA about piracy.]

    The premise of this is that unauthorized use of digital recordings is theft in the same sense that use of tangible property is theft.

    Many here among the faculty may be skeptical of this proposition. But let's take it to its logical outcome.

    Features of private property:

    Take a piece of land--what are your rights as owner of land. You have the right to exclude--and also quiet enjoyment of the land as well right to sell or give away the property (alienation).

    You have injunctive relief under these rights. With property rights you don't have damages--you simply throw the intruder out.

    You have criminal penalties. Criminal trespass rules impose substantial penalties.

    Ancillary protections--prohibition of burglary tools, for example. You can infer intent to use them for entry. Backed by criminal penalties.

    RIAA wants these types of protections.

    One less well known aspect of land property rights--the exceptions.

    The right to exclude is limited if a person cannot avoid trespassing. Or if there is a public emergency, they can trespass.

    In some countries, the trespass extends to the earth below and the air above. But airplanes are allowed to pass overhead.

    If I employ immigrant workers--I must allow health workers and laywers.

    A final exception--people have a right to self-help. If some threatens to enter my house, I can employ self help. I can use non-lethal force to block entry.

    But if an airplane passes overhead, I cannot put up a wire to stop it. *I* could then be liable to damages.

    So in the context of copyright--recording industry would have full public performance rights, eliminate compulsory licenses, lower wilfull requirement and increase enforcement of criminal sanctions.

    "Supernodes" could be prosecuted under the NET Act.

    What about prohibition of burglarly tools? This translated would mean implementing something like the CBDTPA.  Make unlawful devices that do not contain copy protection.

    What about self-help property rights translated to the copyright sphere? This would actually curtail the DMCA. You would have Ploof-style liability if you stop legitimate trespassers.

    Benefits of this system: 1) media companies embrace digital distribution, 2) emergence of refined and flexible private licensing schemes, 3) price system would rpvide creators with precise signals concerning tastes of customers [...]

    Disadvantages: 1) threaten semiotic democracy, 2) erode "end-to-end" principle [CBDTPA an example of such erosion--proposes dumbing down and standardizing edges], 3) facilitate more refined price discrimination--on the balance, pernicious in this context [increase record company profits, reduce losses, but at the same time threaten privacy, transformative uses...]

    That's model one--Private Property. Number two is Regulated Industry.

    Increase government involvement necessary to 1) respond to oligarchy, 2) calibrate more finely the balance between incentives and public access [reject propertization of copyright; reinstate traditional balance] and 3) equalize bargaining power between artists and record companies [theory of compulsory terms; help vulnerable party--the artist].

    In practice: 1) preserve and extend prohibitions on file-sharing and encryption circumvention, 2) create compulsory royalty system for all aspects of digital distribution [Copyright Office at two-year intervals establish terms and conditions] and 3) make mandatory inalienable, non-waivable distribution of revenues between artists and recording companies.

    Benefits? Digital distribution grows rapidly, reverese vertical integration of the music industry, diversity of services available to consumers increases, net revenues stable [...]

    Drawback? Transaction costs remain high, semiotic democracy suffers, privacy curtailed.

    Number three proposal: alternative compensation.

    Intellectual products are "public goods." Can be used and enjoyed by an infinite number of people without being "used up" (non-rivalrous). Difficult to prevent people from gaining access to the good (non-excludable).

    Examples of such goods include--lighthouses, roads, armies,...but also songs, movies, ideas.

    Problem from an economist's perspective: the danger is these goods won't be produced (no incentive).

    The danger of underproduction. Government has to get involved, says the economist.

    Government has done this: it has provided the good itself (built lighthouses). It has also subsidized the production of the good (NSF, NEA). It has also issued prizes--rewards (Nobel prizes). It has also confered monopoly power on producers. Government gave certain companies monopolies to build roads, for example.

    This is where IP rights fit--governments have conferred a monopoly.

    Finally, number five: the goverment has assisted private parties in increasing "excludablity"--trade-secret law, anticircumvention laws.

    As copyright law has increasingly failed to protect recording companies, they've moved from #4 to #5.

    Here's how the alt. compensation system would work: 1) register recordings with Copyright Office, 2) get assigned unique 10-digit number for the work, 3) application for registration requires you to designate other recordings intergrated in work, duration of the incorporated works, in audio, designate artist & composer.

    Then, impose a tax. Possible principles for imposing it--provide creators with full surplus for their efforts, create "fairness," make creators as a group, whole [...]

    Make legal Internet distribution--but how? Certain revenue streams would be impaired. But how much?

    Music industry out estimated $ 1.24 billion.

    Film industry out estimated $ 1.774 billion.

    Taxation would need to raise $ 2.4 billion per year. Tax the goods and services that enable people to gain access to recorded content.

    Tax CD burners. Tax VHRs. Tax blank CDs. Tax MP3 players. Tax broadband. Tax ISP subscribers.

    An adminstrative agency would be charged with setting tax rates.

    Less expensive than any of the other biggies: NSF, NASA, etc.

    Next, you need to count consumption. Webcasters report number of listeners, websites number of donwloads, P2P number of file-sharing registration numbers, sales of prerecorded CDs...using sampling to reduce "ballot stuffing" by artists.

    As to payment, you would allocate in accordance with estimated injuries. Money distributed in proportion to frequency of consumption. Not state socialism.

    Once this is in place--lift copyright regime. No liability for reproduction, etc.

    Benefits: large cost-saving. Average household pays much less under this proposed plan for a number of things.

    This eliminates deadweight loss.

    Maximizes convenience.

    No price discrimination (no prices!).

    Preserves cultural diversity and semiotic democracy.

    For artists: incomes protected from corrosion. Opportunity to offer products directly to consumers. Economic and cultural gains.

    For manufacturers of electronic devices--problem of taxes offset by enormous desire to access world of "free entertainment."

    Who gets hurt uner this regime?

    Manufacturers, distributors, retailers. But what of record companies and studios? Hard to say. Is marketing still the primary function? If so, then they may be useful--provided other methods for promotion don't prove more successful.

    Some may not buy as many blank CDs. Many may choose not to subscribe to ISPs.

    Another threat--this does give the government agency considerable discretionary power.

    During launch of this system, we'd have to modify the Berne convention. But we'd encounter no 5th amendment problem. During growth, a growing tax base, increased saving.

    Expansion and technological change may eventually lead to replacement with federal income tax.

    We have 20 minutes left. Let's open the floor.

    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.

    Barlow: Slightly!

    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:

    Every day you find an indication of the crisis in the music and film industries. Today's NYT: Bertelsmann's profits fell precipitously. There is trouble in the music industry--and coming trouble in the film industry. What has produced this crisis? How can we get out of it?

    Here's an outline: I'll begin by explaining the potential benefits--social and economic--of the new technologies we have. Then explain how the law was modified since 1990--seven cycles of innovation/litigation. DAT recorders, music lockers, Napster, etc. After we explore this we will discuss possible reform.

    Potential benefits of the new technologies: we will define three methods by which music and film could be distributed over the Internet. Downloading, interactive streaming, noninteractive streaming.

    Downloading--you can store the material. Interactive streaming--you cannot store. Nointeractive streaming--the broadcaster chooses what you hear--rather like radio.

    Suppose we distribute music in unencrypted containers over the Internet--MP3, MP7. Instead of buying it at the store, you get it via the Internet. Big benefit here is reducing the cost of distribution.

    In traditional sales of CDs, there is only a small margin of profit.

    What about the artists? Traditionally there are two artists: the recording artist and the composer. They say 12 percent goes to recording artists--but out of that is promotion costs (making a video, for example). The costs recouped out of royalties usually equal the amount that is disbursed.

    With Internet distribution--a third of the cost paid by consumers is automatically taken away.

    Recording companies argue that they provide five kinds of services: find artists, help produce the music, promote the artist, manage the distribution process, and "risk spread." They argue that they provide a kind of insurance. They extract sizable rents from big hits; they then "cover" the losers.

    A shift to Internet distribution means we could save much of this money. Production costs lowered. Internet promotion is less costly. Distribution is a lot cheaper. It's not free by any means. But it's cheaper than physical. Finally, there would be fewer "losers"--less money spent and lost--so the "risk spread" function wouldn't be as necessary.

    Other advantages: transition to digital distribution would lead to eliminate over and under-production. The product can be made instantaneously. More convenience and precision--and with streaming, you could have the so-call heavenly jukebox. This would also increase the number and variety of musicians. Cheaper to do it; Internet facilitates "niche marketing" to geographically distributed customers.

    Finally: "semiotic democracy." What is this? The power of making cultural meaning is being concentrated. The Internet could help distribute this power. It creates an opportunity for democratizing access to the making of cultural meaning.

    It could also blur the boundary between producers and consumers. Unsecured files can be modified. There is a conversation/collaboration. You can disassemble the parts a recording and re-mix them. Redistributed karioke [big laugh].

    Shift to the film industry. It's next in the line. For example, Star Wars and Jar-jar Binks. One critic secured a VHS and edited Jar-Jar Binks out of the film. He called it "The Phantom Edit." Producers were amused--but possibly because the distribution was small.

    If the technology improves, though, the distribution might be much larger.

    Go-to-it is a company that will offer to consumers the ability to edit films "on the fly." You can edit out nudity, violence, language. You can have an expurgated version for your kids.

    This is just the beginning of enormous opps for the consumers to modify the cultural product.

    Sustantial dangers of the "digital transition" I descibe. The artists may be in danger of losing revenue and/or incentives.

    Second danger: some trasnformations of cultural products endanger "moral rights."

    Finally--if the boundary between producer and consumer is blurred, we face the danger of losing common cultural reference points.

    What's happened so far is that this transition has been fought.

    I'll start with the technological revolution--and the basics of American copyright law. TRIPs and other treaties make it so that copyright law everywhere is getting closer to American copyright law--for better and/or for worse.

    Musical work under US copyright law: rights to composition and to recording. Composer has an exclusive right to reproduce, distribute and public performance. Recording artists/companies have everything but the right to public performance.

    Limitations to copyright: 1) first sale doctorine, 2) compulsory licenses--jukeboxes, cable and satellite transmissions, 3) fair use doctorine.

    So the composer assigns copyright to publisher. Publisher makes money in a number of ways--rep. license, import license, mech license, synch license, etc. There are also performance licenses.

    As of 1990, this was the way things worked in the recording industry.

    Record companies actually paid the radio stations to play the records. They pay indepenent promoters to pay radio stations.

    What about the film industry? The law is simpler. Two rights in a motion picture. The producer can reproduce, make derivative works, distribute.

    The producer assembles a cast of characters to create the film--extracts rights from each. The writer, etc.

    Producer markets by entering agreement with a studio. Release to theatres and other venues, timed to reap maximum profit.

    Monet flows through the channels cut by the legal rights upward.

    Back to the fair use doctorine. The case that established restrictions relevant today: Sony/Betamax. Business model established between theatres, TV, advertisers and consumers. This was upset by the VCR. Viewers used this to avoid the commercials--cutting advertisers out of the loop.

    Studios were upset. They owned the copyrights to the film. They could have sued their customers. Bad business practice. Instead they go after the producers of the VCR. Supreme Court upheld use of the VCR--capable of significant noninfringing uses.

    "Time shifting" did not significantly reduce revenue of studios--this is fair use. Sony is then off the hook.

    This is the benchmark case.

    Now--what has happened since 1990? Waves of technolgical innovation and waves of legal resistance. The effect in each instance has been the block of the technological innovation.

    First: DAT recorders/AHRA. DAT recorders made it possible to produce an infinite number of perfect copies. They got the AHRA--it required that each recorder could only make one generation of copies, established a tax, and gave to consumers a safe harbor for non-commercial copying. [Section 1008.]

    This added to restrictions on copyright.

    DAT was essentially killed; the cassette recorder still more popular.

    Second wave: encryption circumvention. Response: DMCA.

    DVDs are shielded by CSS. SDMI protected music. RealMedia is protected by copy-protection switch. The eBook reader has a copy protection system.

    Each of these systems has been broken.

    CSS--broken by DeCSS.

    SDMI--broken by Edward Felten.


    eBook--broken by Sklyarov.

    Section 1201 of the DMCA prohibits all of the behavior I just described. Substantial civil and criminal penalties.

    Troublesome--Reimerdes case. Links to illegal material. A site includes a link to illegal material. Website creator is liable.

    Second website--provides links to the first site. Is it liable?

    In Reimerdes case, court held that when the material is a decryption tool, both site are liable. It consitutes trafficking.

    The Felten case--drew negative attention from RIAA, which eventually backed off.

    Sklyarov/ElcomSoft--surprisingly, found not quilty by jury verdict.

    Third wave of tech innovation--"Lockers." Beam-it Service/instant listening service.

    UMG v. Settlements with 4 plaintiffs. Universal continued--and then purchased the threatening technology.

    Larry Lessig breaks in: After UMG bought was a malpractice suit. The law firm was quite shaken. Reduces chances these types of cases will be brought.

    Terry again:

    Now to webcasting: "Live 365." Response: legal reform to limit it. 1996 and 1998--two statutes created a new legal right. Record companies got a limited right to control performances--digital audio transmissions, specifically.

    Three types of transmissions--1) music in stores, 2) copyright owners must accept compulsory licesnes set by CARP, 3) copyright owners can refuse; must negotiate directly.

    CARP ruling: .07 per performance (dangerously high number). can't pay one million dollars a year. The effect has been to drive these baby businesses out.

    Blocks benefits of innovation.

    Next wave of innovation: centralized file sharing. Napster.

    Napster provided dirtectory and file-sharing software. Did not have copies--only listed location of copies.

    Problem was not one or two people using Napster, of course. It was 70 million people used Napster. [Big laugh.]

    A&M Records v. Napster. Napster, unlike Sony, is found guilty. Contributory copyright infringement.

    Next wave of innovation: peer-to-peer file sharing. Grokster, Gnutella, BearShare, etc.

    LRecord companies litigating with left hand, setting up pay-for-play with right.

    Last wave--CD burning. Standard equipment for PCs. Blank CDs exceeded sales of regular CDs. Response: copy-protected CDs. Has produced hostility among consumers.

    These are the waves. The net effect is that the potentially huge benefits of digital distribution have been forfeited. No celestial jukebox. Consumers still pay outrageous prices for CDs. Encryption is constraining fair use.

    After the break--what is "Plan B"?

    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:

    Terry: So what are the problems with the way domain disputes are resolved? There is unecessarily complex law, which produces unpredictable outcomes. Additionally, trademark owners arguably have too much power under the current system, and domain name owners too little. Finally, legitimate speech is inadequately protected.

    How do we improve this? Our goals might be: economic efficiency, fairness, distributive justice, the preservation of free speech and creativity, and the protection of privacy.

    In brief, possible reforms:

    1.) Improve the UDRP

    2.) Add more gTLDs (generic top-level domains)

    3.) Eliminate protection for generic domain names (make it more like ordinary TM law)

    4.) Increase latitude for criticism and parody

    5.) Return to first-come, first-served

    6.) Repudiate domain names altogether (people use Google)

    7.) Domain names may naturally atrophy as they become replaced by search engines

    Internet Law Program--Jonathan Zittrain on the Technology of the Internet

    Next up here at ILAW in Rio: Jonathan Zittrain--tackling the basics of how the Internet works. 

    An amusing bit first, followed by the rough notes:

    Participant: Are the ORBs or MAPS systems "filters"?

    Jonathan Zittrain: Filter is a sloppy word, actually. Outlook used to come pre-configured with built-in filters. They decided for you that the following is spam: the Blue Mountain electronic cards.

    The MS network, of course, has its own greeting card system--and these cards are NOT classified as "spam." [Big laugh.]

    So, after a legal fight about this--Outlook is no longer configured this way. The filtering that they provide is optional.

    Complete rough notes:

    I've been asked to talk about technologies of the Internet. I will do that as well as explain why you should care about these technologies. I am combatting lunch fatigue, so I will time the exciting moments appropriately.

    [Shows IETF website.] Yesterday we spoke about the IETF. But what exactly is the Internet? It has an hourglass architecture. [Shows diagram of the Internet as hourglass.] Let me explain how.

    Copper, fiber, radio, at the bottom of the hourglass--all of these can be used as pieces of the Internet. The IETF people don't worry so much about how ethernet, for example, works.

    After that you get to the middle of the hourglass: IP, or Internet protocol. With IP everything can be connected to the Internet; even your toaster can.

    The top of the hourglass is email, the WWW, etc. If you have IP underneath, you can have pretty much anything happening at this top level. To be on the Internet is to be connected to others using IP.

    The WWW is just computers that speak "web" that are on the Internet. Your computer, if connected to the Net, is talking to other computers that speak "web"--whether you personally are or not. We've simply knocked on a door that opens when we reach a website. If you click on the source code of a page, you can see what's happening--your browser is what translates it for you.

    HTML wasn't created by the IETF--they don't worry about websites looking pretty. It was a guy in Switzerland who did that, and he later went to MIT and created the W3C. They're still creating stuff they hope the world will adopt.

    But how does IP work? How do packets get from one place to another?

    We have three different types of network: a centralized network, a decentralized network, and a distributed network. A centralized network is like watching TV.

    A decentralized network works like the telephone system. Operators patch you in; it's circuit switching.

    In a distributed network, everyone is capable of talking to everyone else. [Passes microphone to one member of the audience--each person passes the mike to the next until it reaches the back of the room.] This is packet switching. Routers know where, roughly, the back of the room is. Routers maintain tables; they ask anyone nearby for the information needed to continue to the next step.

    Another interesting feature of IP is that it doesn't even check that the mike ever made it to the back of the room. The idea was to keep it as simple as possible.

    I'll quote Bob Braden: "The lesson of the Internet is that efficiency is not the primary consideration. Ability to grow and adapt to changing requirements is the primary consideration. This makes simplicity and uniformity very precious indeed."

    Of course, you need some form of addressing for all of this to work. These must be unique. [Shows home page of IANA.] You might think there are an infinite number of numbers. Instead, the system was created so that numbers roughly coincided with the geographical area.

    These numbers are running out. You must apply for the number. The Internet relies on proper labeling. So some central coordination here is necessary.

    [Uses command to ask his computer what its unique number is. Goes to the IANA website, and searches for the number in Who Is database. Goes to LACNIC and repeats search. Goes to, repeats. Gets the final answer.]

    [Shows another diagram: "source" to "the cloud" to the "destination." The cloud is the Internet--and there, there may not be any contractual obligation. The Internet does whatever it does because it's a nice thing to do.]

    Example: getting a letter from one place to another. Sending an email, the mail arrives at your ISP. The ISP is always on, always there, so if you turn off your computer, the mail will still get to you.


    Here is a model of how a big important website might work: the site (information source) works with large ISPs, who then send the data through the cloud, and then it arrives at you. But no single entity controls the cloud. 

    Another model is peer-to-peer. The peers can work directly with one another. It may not have to traverse the cloud--peers can speak to one another.

    An example of peer-to-peer is SETI @ home. They're searching for artifical intelligence. They ask individual to donate space to crunch numbers for them. This is a distributed computing model.

    Another example is Morpheous or Gnuetella. Computers ask other computers whether they have a file.

    Another "application" that runs on top of email--it's called spam. This email [shows one from China, selling charcol] goes to 300 million people--and they just hope someone out there wants what they're selling.

    This is a friendly system that is being abused.

    ISPs are sick of having to deal with spam. It subscribes to a list-MAPS. MAPS used to be maintained by one man--Paul Vixie. He kept a list of who has been naughty or nice. The ISP will not deliver the email if Paul says it's coming from a known spammer.

    I traced that spam, and as you can see here [shows slide], there are several routers along the way that could drop the spam as well.

    Particpant: What are some reasons why Paul wouldn't like you?

    These are private sheriffs--they may not like you for a variety of reasons. The Internet architecture didn't contemplate that this would happen. It was built with the assumption that everyone would like everyone else.

    Participant: Are the ORBs or MAPS systems "filters"?

    Filter is a sloppy word, actually. Outlook used to come pre-configured with built-in filters. They decided for you that the following is spam: the Blue Mountain electronic cards.

    The MS network, of course, has its own greeting card system--and these cards are NOT classified as "spam." [Big laugh.]

    So, after a legal fight about this--Outlook is no longer configured this way. The filtering that they provide is optional.

    Participant: Once you're on the spam list--can you get out for good behavior?

    [Goes to mail-abuse prevention system (MAPS) website.]

    People used to email Paul to ask why they're listed, but he subscribed to his own list, so that didn't work out very well. Now, you visit the MAPS website and fill out a form. They deliberate on that and get back to you.


    IBM in 1992: "You cannot build a corporate network out of TCP/IP." [Shows clip art of bees--because aerodynamics engineers are perplexed by how bees fly, despite such small wings.]

    What's missing in the current Internet? Quality of service, accounting and traffic management, encryption & security and authentication.

    How does encryption work? [Shows diagram of "encryption in three easy steps": two columns of numbers tagged to letters.]

    Participant: What is the current encryption policy in the US?

    The US used to be against it--they had gotten used to being able to send the FBI guy out with the alligator clips to listen in to what's going on.

    They said Americans could have it--but people could not export it if it was of a certain quality.

    But we changed our minds on this. Perhaps the NSI got bigger computers.

    Public key encryption: first, you need to find a "one-way function." Then, you generate two related keys. You make one public, one private.

    Digital signature: it is specific to the document you are signing.

    Public key authentication: flip "public" and "private."


    Why isn't everything we do on the Internet encrypted? The reason I think this is the case: convenience. You need more cooperation with others. It's not yet been made easy enough.

    If you are into your own privacy, though, you certainly can.

    There is another feature of the Internet that's incredibly important: IP doesn't care what's running at the top. This is actually changing. There is interest in the middle of the network. Are you running email...or something scary like Morpheus?

    The computer is a generic machine that will run anything--attached to a network that will carry anything. It has become a force of nature that certain people have an interest in changing. In the future, you may not be able anymore to run whatever you want.

    Break time. Next up: Terry Fisher on domain name conflicts.

    Internet Law Program--Yochai Benkler and Larry Lessig on Spectrum Policy

    Yochai and Larry are up next, for a session on spectrum policy that will be webcast.

    Here, an intriguing snippet; below, the complete (if still rough) notes.

    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.*

    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].

    I want to understand the nature of spectrum usage today--which is the same as it was about 25 years ago.

    Yochai: Our system was developed around 1912 in the US and it hasn't changed much since. The most important assumption to understand in this model is that the receivers are very simple.

    Larry: So it's a world of dumb radios?

    Yochai: Yes. All they can do is listen for a signal from a broadcast tower. They listen to a particular frequency and to the volume. In the eyes of this receiver, the world is what is on the frequency, and is it louder.

    Larry: Would you say the signal has to be louder than anything else--the signal louder than the noise? What if two signals are equally loud?

    Yochai: Interference describes the condition of the dumb radio. The signals don't bump into eachother.

    Larry: So interference is a function of dumb receivers. But what if we lived in the world of smart receivers?

    Yochai: We do, actually. We ourselves are smart receivers.

    Larry: You're saying we can all distingish between you and the background noise--say, of the fans.

    Yochai: Yes. It is only the receiver that is at issue.

    Larry: So that's where we are. But what, then, is *possible* with radio?

    Yochai: Let's talk about Claude Shannon and information theory. He invented the idea of the "bit." Before Shannon, people thought about communication as the delivery of a message.

    What Shannon explained is that there is something other than the actual communication--*information.* What we care about is whether the receiver gets the message. What's the probability that the receiver understood it? Describing the probability allows us to think of more strategy than one to communicate a message.

    Larry: What strategies? Are you saying we can increase the capacity of the system?

    Yochai: We can do all sorts of things--we can increase capacity, speed, etc.

    There are things we can do to the receiver that will increase the probability he will understand--we call that a "gain."

    Gain is anything we do to sender or receiver other than increase the power.

    Larry: So what can you do if I'm over here and you cannot hear me because I am speaking softly?

    Yochai: We create an antenna. This is an antenna [puts hands on head and around mouth to create a "bigger" sound]. This is just one of the gains--we have an antenna gain and a processing gain.

    Here's how you might imagine processing gain. Imagine that you're watching a sitcom. You go get a glass of water. You miss a second or two of the program. But you still know what's going on. Why? You have a processing gain here--intelligence to guess what happened while you were gone. The sender sent a whole sitcom; you didn't receive the whole thing, but you filled in the gap.

    Larry: We have a story in the US about Paul Revere. How would Paul communicate to everyone that the British were coming? One lamp by land, two if by sea. Is this processing gain?

    Yochai: Yes. This requires that the processors at both sides are intelligent.

    Larry: Let's talk about radios. The current situation is about shouting. But what is the alternative?

    Yochai: There is a capacity theory. We have cheap processors everywhere--they understand and translate code. Rather than send a large signal, you send small bits at a time, wrapped in code. The receiver listens to a broad range of frequencies; it picks out which one to listen to.

    Larry: You know you're supposed to be listening to code--and you keep "guessing" to determine which is being sent.

    Smart receivers can determine what it should listen to. This is a bit like ethernet, yes?

    Yochai: Yes. And then there is also "cooperation gain" [David Reed]. Let's imagine what this might mean. Imagine the person in the back wants to talk to someone on the other side of the room; he could essentially play telephone tag. He could use the cooperation of his neighbors to help get the message across.

    Larry: This is better than people screaming across the room at eachother, making it impossible to hear anything.

    Yochai: can talk to the room without drowning out the lecture. We increase the information capacity of this room when we pass notes like this amongst ourselves. We have increased the amount of information this room can carry.

    Larry: [Shows Mesh networks commercial.] The basic argument in this commercial here is that when machines communicate with eachother, the total information capacity is increased. With a peer-to-peer system, you don't have to go through centralized system. This increases total capacity.

    Yochai: [Shows picture of a neighborhood, representing a systems with decentralized network over open spectrum.] How does cooperation gain work here? Jane wants to talk to the video store; Bob wants information from the bank. In the traditional model, Jane would shout loudly at the video store. Bob would shout, too. The bank and video store are close together--so they can't hear anything for the shouting. In the cooperative model, each whispers to their neighbor. The message eventually gets to the destination--and two people can use the same system at once.

    In this model--you add users, and you add capacity. This is revolutionary.

    Larry: JP Barlow was discussing scarcity yesterday. The other kind of economy is abundance. You're suggesting that if users increase, capcity is increased.

    Yochai: Yes and no. We have a category of goods--non rivaled goods [?]. Spectrum isn't like this. You need good equipment. There will be problems. BUT there will be fewer problems in this arrangement. [...more I missed...]

    How do we build a system that as we build users, we add to capacity? We have some practical developments and a theoretical trajectory here--we are on the road to this.

    Larry: So what we said so far is that we began with a world of dumb receivers, moved to smart receivers, and added "gains." And then from there we envison a world where cooperation adds capacity.

    How do we get to this world? This is matter of policy.

    Command and control--we are currently in a world in which the government decides/allocates frequency.

    Yochai: This is the worst system, what we have now. Government processes are slow. Slow mechanisms. People in government do what they know--they are conservative. This conservatism will control what happens. Fear of failure. Government regulators tend not to take risks.

    It's also slow because it's subject to politcal pressures. In the case of the FCC, a central part of the strategy of incumbents is to compete not in the marketplace, but within the regulatory agency itself.

    Larry: story to make this point. A guy named armstrong invented FM radio. He was working for AM Radio (RCA) at the time. RCA gets wind of the technology and gets mad. The head of the RCA launches a campaign against him. RCA got the FCC not to adopt this new technology--delaying FM by 16 full years. Armstrong settles for less than his lawyer's fees--he has no money. He actually ends up killing himself.

    Yochai: In 1959, Ronald [Cone?] said spectrum is scarce. The solution, said this man, is to work at defining property rights in spectrum and then to let the market take care of it.

    JP Barlow: But he wasn't right--we'd already come up with spread spectrum.

    Larry: But it wasn't developed.

    Yochai: Given processing at the time--he was probably right.

    [...missed a bit...]

    We make sure that the resource goes to those who are willing to pay for it. In an economic sense, this is most efficient.

    I am comfortable with this; some are not. This does, like all other market allocations, pushes toward market values vs. political values.

    Larry: What are the costs of the property system today, not in the '60s?

    Yochai: There are transaction costs. There are now technological innovations that allow for a better system. But won't property owners use this system?

    No--and it's because of transaction costs. The companies consider all sorts of questions. Defining property rights, defining who cares, who will pay, etc.

    What's particularly hard about using these technologies through the market is that radio use is local and dynamic.

    The challenge is figuring out who the people are who want to communicate with one another.

    Larry: This is complex. If there is no scarcity at all, there is no need to charge.

    Yochai: The only reason to price my action is if it prevents someone else from doing it.

    But if the pricing system is to work efficiently, we need to determine levels of discriminating among those who want to use the system.

    What likely will happen instead of efficient pricing, though, is block pricing.

    Another issue is that capacity can be reduced. If bandwidth is priced, you will use less of it.

    The devices at the edge of the system will be smarter if bandwidth is not priced.

    Capacity will be increased in a system with more widely distributed intelligence.

    Larry: What about shared spectrum?

    Yochai: This is the best system. The benefits are many. Primary: you build technology into the edges of the system. This is the initial step for a property system; here, this is all you need.

    The technology allocates.

    Larry: This is simpler because...?

    Yochai: You charge for devices, not spectrum. This is a major advantage.

    Larry: What are the costs?

    Yochai: At the moment it looks as though pricing will assure better quality of service. If it's free it may not spur better quality.

    The Internet works basically in the same way. The Internet is a best-effort network. It promises little. It will try to send your packet.

    The market hasn't driven to "perfection." It hasn't made it necessary to have pricing per packet.

    Larry: Could property still be a better system?

    Yochai: In some cases, yes.

    Larry: But with the Internet, the commons system works so far.

    Yochai: Yes--quality of service hasn't been adopted.

    Larry: At the end--what's the really important question? Is this commons really just another case of communism? Are you a communist?

    Yochai: It is important to understand that whether you like or hate communism--this isn't it. It's about freedom. It's about individual freedom. This is a system that puts regulation at the edges.

    Communism as it worked in the world was a centrally conrtolled system.

    This IS a market system--a market in DEVICES, not SPECTRUM.

    So this is not a communist system.

    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.

    TV: A television is simpler than a microwave oven. The intelligence is centralized, with the control in the hand of the boradcaster.

    Telephone: The source of information is at the ends. Yet all of the intelligence remains centralized.

    The Internet, though, inverts the intelligence of the network. The intelligence isn't at the core, but rather at its edges. The majority of the decisions are made at the edges of the network. It works as long as people at the edges have a machine that's intelligent enough to translate the information flowing through it.

    [Shows powerpoint slides to illustrate the bundle of functions that go into every communication.]

    TV--This chart shows the functions and who controls them in a broadcast model. [It is dominated by a large red dot, signifying how much control is in the hands of the network owner.]

    Telephone--much control remains in hands of the owners of the network.

    Internet model--what's left for the carriers here is very little.

    What is at stake here? Why should we care? Jonas of IDT said, "If you control the pipe, you eventually get to control the content."

    First set of issues: democracy. With the Internet, everyone can become a pamphleteer or a printing press.

    Second set of issues: autonomy. It's about who controls the window through which you see the world. If you are part of a communication system where someone controls the network that gives you your view of the world, that someone is asserting a level of control over you.

    The third set of issues: innovation. Three important speakers on this: Lessig, Baldwin, Reed. If you have a network that someone owns, and you want to innovate, you need permission. If the network is open, however, you can just go ahead and innovate. Its ultimate success depends on whether people like the innovation or not--not whether it is pushed or selected by the network owner.

    Fourth set of issues: efficiency. Where there is a pipeline-type condition, standard market power issues arise.

    [...missed a bit...]

    The claim I am making is that an open network will improve democracy, autonomy, innovation and efficiency. The only ones who stand to lose are the incumbents.

    In the US, this is epitomized in the end-to-end argument.

    Why worry about end-to-end architecture?

    1.) Lack of trustworthiness in peers. You move beyond the academic community that began the Net, you get spammers, viruses. You then get firewalls.

    2.) Quality of service.

    3.) ISP service differentiation; caching. The ISPs provide cached materials to certain audiences; some sites are harder to get.

    4.) Third-party interests such as employers, ISPs and government officials will work to influence points along the way from end-to-end.

    5.) Less sophisticated end users. The open network with intelligence at the ends requires intelligence at the ends.

    There are tradeoffs in the balancing of freedom v. control. With freedom there is greater uncertainty.

    Who will choose which way we will go?

    What is the current state of play--the way things are in the US today?

    Three layer model will help you conceptualize: content layer, logical layer, and at the bottom, the physical layer.

    Who gets to control information flows? You can identify the players at each layer. Content--what we say to eachother. Logical--translator in protocols of what we say. The Physical--the wires themselves, etc.

    In the US--on the physical layer we have DSL and cable. This is an entirely owned network. Cable is the biggest; DSL second; then other wire services, then fiber, then satellite & fixed wireless.

    If you're looking at the Internet via a slow machine versus a fast one, the two are completely different social/psychological states.

    The US does not lead, here; South Korea, I believe, has best broadband deployment. This needs to be the focused policy question. The is the central difference: with poor connections, it is closer to a broadcast model. The always on, broadband connection is the true Internet model.

    Keep your eyes on the prize.

    All of the "advanced services" are reserved for big insitutions.

    Pie chart shows incumbent telephone/incumbent cable --two players dominate. This is the real picture. The incumbents still rule.

    The thing to understand RE deregulation is that is a political statement. Historically, telcom was understood as a "natural" monopoly, but in the 1990's, multiple wires came to the home. People thought they should not regulate it--let the two wires compete.

    We were at that point unhappy with the regulated monopoly. This was a lucky moment where we could have competition. But there was a fear: how do we move from monopoly to competition?

    A 1996 Act forced the telecom companies to share wires with competitors *at cost.* The was agressive regulation, to deal with the monopoly.

    However--none of this happened with cable. Regulators stepped back entirely from cable. When AOL merged with Time Warner, there was the beginning of regulation. You must allow access to at least three other ISPs in an area.

    Telephone is heavily regulated; cable totally unregulated. There was a movement to regulate cable so that there could be competition.

    In the last year, though, the move has been toward leaving cable alone. This explains why cable as an incumbent is so powerful, with half the pie for Net in small offices/home (as opposed to big institutions).

    There is no forced sharing for broadband.

    We have two pipelines, then. Do two pipelines make a competitive market? I am skeptical.

    The only pipe no one owns is the open wireless networks.

    Someone had to build the other networks. The open wireless networks DO NOT NEED TO BE BUILT. We do not need this to be controlled.

    Okay--but what about the other layers--the content and logical layer. who is in control on the logical layer?

    No one owns TCP IP. What about naming and addressing? How open is this protocol? This is where ICANN fits. Will it be closed or open?

    What about operating systems? Did the MS antitrust case open this? Linux is a maybe--perhaps viable as an opening on this layer.

    Open source software--Apache server very successful.

    The argument isn't that every layer should be entirely open. But innovation requires a viable path--an opening somewhere.

    With DRM the fear is that below the logical layer, we will have control of that layer from the physical layer.

    At the content layer--we see the CTEA locking up content. Censorship and filtering carried out by governments/ISPs under pressure from corps.

    The openness at this level: KaZaA...people who create and "publish," but NOT for the market. And here we have the Creative Commons, about which we will talk more later.

    To wrap up: Sustaining the architecture requires an opening on each layer. Government and property-based incumbents will seek to close up each "hole."

    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.

    This relationship may be turned on its head in the information economy. A song is different than a diamond. If I give you a diamond, I don't have it anymore. But if I share a song, I still have it. In the US currently, the corporate IP owners have become aggressive in their mission to clear-cut the rainforest of thought.

    I am not opposed to people getting paid for creative work; this is very important. But if we use property as model for control over goods, we allow ourselves to become the easy pawns of corporations. It's time to re-envision how we should get paid for the works of our minds. I believe that Brazil has a unique opportunity to help us all re-imagine this. I've observed that Brazilians have a strong sense that music is shared property...It is the joint property of Brazilian society. So I propose that this is a good place to take a stand against the corporate copyright holders. In the US, children are being taught that sharing information is a crime. That giving someone a copy of a song is a crime. As a songwriter, I object. Back in the early '70s, we--the Grateful Dead--realized that people were taping our concerts. Initially we kicked them out of the concerts, called them shoplifters. But then we changed our minds; it's bad karma to be mean to a dead head.

    These bootleg tapes were really what we now call "viral marketing." Giving music away does work...I have suggested to Minister Gil that Brazilian music be put on the Internet; this would create a worldwide flowering of creatvity inspired by this music.


    A song is a verb; a CD is a noun. They keep mistaking the bottle (the CD) for the wine that is in it. We're creating a means of creating an economy around the wine.

    Participant: You suggested Brazil to be pioneer in creating this new system. Can you elaborate on this? Your proposition touches a few interests. [Big laugh...]

    JP Barlow: We have reached an odd point in the states--people are more concerned with preserving the livelihoods of the recording industry--the gang of thieves--than the culture.

    I am willing to admit that there is a kind of communism in what I propose. But I think communism didn't work because it was focused on physical goods. I am happier sharing my songs than with sharing my house.

    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?"

    Audience member:"Microsoft." [Big laugh.]

    [...missed Silvio'sopening presentation, here..]

    John Perry Barlow: I have spent a lot of time in Africa and Eastern Europe, to some extent in the US. I used to be in the relatively sanguine opinion that the world was divided between the haves and those who don't yet have--thinking that the development of the Net would solve this in time. I think I was wrong.

    Brazil is the greatest inside joke that I've ever seen. This creates a kind of digital divide between Brazil and the rest of the world. This is a unique problem that has to be addressed.

    I used to think that the use of English on the Internet was no big deal; after my experiences here, especially, I've changed my mind. I spent a month here feeling like a stroke victim. It's a good thing that many of you are very good at communicating with body language.


    I was surprised that the audience could be so mistaken about the importance of telecommunications reform. It is essential to create competition. I don't see competition in high speed or wireless.

    Charlie Nesson: Typical path is monopoly to privitization.

    JP Barlow: I'm not a giddy believer in the free market as a cure-all; I've been accused of that.

    Charlie: Audience--why isn't deregulating telecom more important to this audience than other things on the list?

    Audience: It's funny when we talk about IP and protection--the fight against piracy. This is the view of the company, of the US. We are a poor country; our priorities are different. It surprises me that the US is surprised that we have a problem with piracy. Of course we do: people want access to the software; they simply cannot buy it.

    The discussion of this piracy is therefore empty, useless.

    Curiously enough, the cost of participating in the next ILAW at Stanford makes it so no one from Brazil will come.

    Nesson: We have transitioned from a talk about regulation to one about piracy; this may be as it should be, although we will have a later opporunity to discuss intellectual property.

    JP Barlow: I will reiterate Charlie's question, as I am curious about why you don't want to pursue regulatory reform as a route to bridge the digital divide.

    Audience member: The problem is bigger than regulatory control. Most people here don't even have computers. Before we solve the Internet problem, we've got to solve the hardware problem. Outside of universities, only people with money have computers.

    Nesson: So it's a question of which problem comes first.

    Audience member: Yes.

    JP Barlow: I was out traveling on the roads, which are in bad condition. I thought, "Is it that the roads are bad, so there are no cars; or that there are no cars because the roads are bad?"

    Audience: I wonder why we speak about Internet access before basic sewage issues, etc.?

    Charlie: Your comment is close to that of Bill Gates, who says, "Why are we talking about laptops when there is dirty water?"

    Sylvio: I would like to talk about telecommunication reform; if we drive in a proper way with the agencies, we can give services/computers/...[missed a bit...]

    We are facing the problem of the chicken and the egg. Students love video games more than books....Brazilian people try to interpret what we need according to our larger priorities.

    Audience member: "You say we need to de-regulate the market to create competition. The cell phone industry is very much regulated; but we still have competition. Yet in another industry that is deregulated, it's close to a monopoly. Is deregulation the right thing?"

    JP Barlow: I mispoke if I said "de-regulation"--I meant something closer to "re-regulation." [...missed some...]

    Paul, from Seattle: "Living in Seattle, you'd think that Internet access would be readily available. I have one choice. Are you saying the US is a model?"

    JP Barlow: We're all bozos on this bus. The US created a new set of problems with highly monopolistic behaviors.

    Alyssa: I work for MS in Brazil. Develop your thoughts on how Brazil could change to embrace the Net.

    JP Barlow: Brazil is like a floating world.

    Audience member (Brazilian IP lawyer): "Ha! If you listen to the radio, see our movies, you'd see we are a very open culture.

    But if we don't have the cars, should we put pressure on government to provide roads?

    Our culture has to get used to hardware and see how important it is-- then we can put pressure on the government.

    JP Barlow: Mine is an amateur opinion; I've only been here a month. But this is one of the most socially networked society I've encountered. There is opportunity here.

    Audience member: Coming from Argentina, we don't have a concept of how important Internet communications are to the outside world. Liberalizing telecommunications means greater real access in a localized world.

    Charlie: Let's address the Internet & computers in schools. As attractive as the idea is, it's been my personal experience that in the US and in Jamaica, the computer lab in school is desultory. It's under lock and key--or in a regimented program that seems to be aimed at helping young people learn only to create documents or do data entry in a future office with an MS environment.

    Might it be worth considering Sylvio's point--that innovation is important? That the innovative use is key? Who would speak to this proposition? How would you do this in Brazil--make kids excited?

    Audience (attorney in Brazil): I can bring to you experience that has been developing. We havce brought people together to start a project: we have given children not just how to use the computer but also the sense of what it means to be a citizen of the globe. We don't have many resources to spend on this. The problem is the continuity; we may not be able to continue.

    JP Barlow: I find encouraging the computer centers that I've seen; they are not being prescriptive about what people can do on the computers. I don't know abything about the schools; but the computer centers seem to embrace all. I saw people from 3-80 years old--from all walks of life.

    Charlie: This points to a truism. To many, the computer is a mystifying device. We need to connect computer use to what people do in their daily lives; with their passion. We need to integrate it into the regular curriculum; and to target teachers, to get teachers excited.

    Terry Fisher: I'll return to the participant's argument that Brazil is not an insular country. In Isreal there is a movement afoot to help natives develop their own software. Is it desirable or undesirable that a culture is largely indigenous?

    I'm even more of an amateur here--but a few years ago, I was here for a conference and asked how many had used Napster. Nearly half had. I asked what they were using it for. They said they hadn't been using it to swap files of Brazilian music; they were using it to gain access to American pop culture.

    JP Barlow: I think of your culture being insular in a positive, not a negative way--let me be clear.

    Audience member: I don't mean to disrespect you; I speak as a Brazilian. We are open to the mix of cultures; we don't have racism the way you do. I simply wanted to say that Brazil is not how you were reading it.

    Sylvio: We have the capcity to design and develop systems that compete with the best in the world. We never thought about selling software to the US. There is something different; Brazil is not Isreal, where market opportunities are limited.

    Nesson: A few final comments. How do we assess digital strategy? Criteria: we should leave in place the indigenous strength. Outside consultants come in and they recommend buying hardware and software from the developed country. If you are not yourself capable of servicing this software and hardware, there is again creating a dependancy.

    The software that you are advised to purchase comes through a company in a race for profit; you must then purchase often to keep up.

    How often does a nonprofit come in and with all of the best intentions tries to provide services; but when they run out of steam, they might leave the area worse off than before.

    There is a divide between countries and within any country between the rich and the poor. This is where thought needs to be put in; and I think this leads us to education. This is the root. The bottom line: look for projects looking to develop indigenous capacity/ability. The government can then help these small businesses.

    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.

    Terry gives up the floor to Carlos Iman (sp?), president of FGV, and then Luiz Guilherme Schymura, President of ANATEL. Although I'm sitting next to the translation booth, I cannot quite hear the words; Terry notes that we will have audio (with translation) up on the ILAW website within a few weeks of the program's end.

    Next up: Larry Lessig with the opening speech.

    Back momentarily.


    [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.

    How should we understand this--how do we go from the question of whether cyberspace is regulated to how it is regulated--or should be regulated? If you believe cyberspace can't be regulated, you neglect to consider what governments can  and are doing to regulate the space. While we asked whether they could regulate the space, governments were using the time to figure out how to regulate it.

    Let us consider what really regulates cyberspace. Not what lawyers say regulates it, but what really regulates it. [Points to powerpoint with a dot in the center representing what it being regulated.]

    One way of regulating is law. It is against the law, for example, to break the speed limit.

    Another way is social norms. The social norm regulates this way: when you stop your car to talk to a friend, you will pull over to the side of the road. No law tells you to do this. The guy beeping at you will tell you.

    Third way to regulate: the market. If you want to get paid, this is what you do. People who want to drive have to pay 2.50 per gallon to drive it. This is a constraint. The price may go up; it may go down.

    Fourth way to regulate: the physical world around us. In terms of driving a car--we create cars that will only go so fast. The policeman doesn't stop you; the technology itself stops you from driving hundreds of miles per hour.

    We might think about these regulatory forces as roughly equal--but it might be more helpful/accurate to say that the forces interact with one another in a constant push and pull.

    [...]Smoking is a good example for demonstrating this: propoganda (social norms); taxes (law), reducing nicotine in cigarettes (architecture).

    Architecture as a regulator--it is significant, historically. Napoleon the III hated that there were so many revolutions in Paris. To combat it, he destroyed the tiny roads--and made the roads wider. This made it easier to block roads; made it harder for the people to foment revolution.

    Ugly example in the US. Robert Moses wanted public spaces to be divided between black and white. But the law said segregation was illegal. He used architecture instead. In Long Island, he built roads with bridges leading to the public beach. These bridges would allow cars--but not buses. And if you're someone with no car--who must depend on public transportation--you won't be going to the beach.

    How does this work in cyberspace? Cyberspace is an architecture. Mitch Kapor said architecture is politics. This is expressed in the network: TCP IP...the important thing to notice about this architecture is what follows from it. We can't know who is shipping the data. We can't know what the data is. You can't know where it is going. The network knows logically--but there is no connection between that and geography.

    Under this protocol, life was relatively anonymous. This meant that it was very hard to regulate behavior in this space.

    Let's consider pornography and children. In real space, you had law, norms, market constraints (kid doesn't have much purchasing power), and physical: it was hard to hide that you were a kid. You could wear a mustache and use stilts; but you weren't folling anyone.

    Within context of cyberspace: the opposite is true. You can't easily know that a user is a kid. The architecture isn't self-authenticating. The market is no longer an issue: much of porn on the Net is free.

    This was the case under the original architecture of the Internet. In 1993, we had no way of identifying who the user is. Not a good architecture for selling things to people. 

    Anything that is not good fo commerce and not good for government is not long for this world.

    First thing they did: create cookies. Little bits of data to identify you. What this means is that there was now an architecture: the browser placed data on your server--and now, when you return, they know who you are. Amazon knows that you like to buy certain things.

    Second technology: mapping of the Net to geographic places. Map IP address to Rio. Rules that depend on knowing where you come from can now be developed. People in France cannot view Nazi propoganda. In the US, viewing content for free can be illegal. They know whether you're in the US, or in Canada; you can be stopped from viewing in the US, and not in Canada, where the rules about that are more loose.

    Another technology: packet sniffing. "This packet is MP3." I tried to set up a situation where people would share my lectures via KaZaA . The Stanford network police unplugged me; they said there was illegal activity. But it is still legal in the US to voluntarily share your lectures.

    The end result? Cyberspace is indeed "regulable." The argument isn't anymore whether cyberspace can be regulated. It is about what is appropriate here. What values do we want to protect? This is the time to decide.

    Q and A session:

    Audience member: There are always technologies to recreate original anonymity of the original Net.

    Lessig: The underlying argument here is that if you can always evade the rules, you do not need to consider them. But most people are not engineers. I'll tell you about the principle of bovinity. Tiny little controls built into 95 percent of Net users. The engineers will escape. But the majority will not.

    Jonathan Zittrain: Aren't you saying that you would like a lawless world--a place where the cows go willy nilly?

    Lessig: This argument--total or no control the only extremes. This is not the case. Where should the government be regulating? Where shouldn't it? We have to make more finely grained judgments.

    And what's wrong with a couple of cows?

    JP Barlow: I wrote in 1992 that we have a choice between totalitarianism and anarchy. Have we moved on from this? Can it the Net really be "somewhat" regulable?

    Lessig: I think we've done a terrible job with this. In the US, with our fear of terrorism, most of us are in the mood to comply with more control by the government. Too, people don't like to think about technology. Or about the intersection between technology and the law. There is a constant interaction between technology and policy. This is one of the reasons we have this program.

    Audience member: I am a computer scientist working toward a law degree. How will the tools develop and spread--the tools that identify people on the Net, etc.

    Lessig: When cyberspace started, governments shut down certain companies because of speech issues...there was a Canadian website called iCraveTV. The American court said: "You're violating our laws; you must shut down your site entirely." The Canadians said 95 percent of the people who shouldn't get access to the material won't get access. The American court said: "We don't care; shut it down." Each country will have different elements that they wish to control. In the US, it's copyrighted content.

    missed a bit here...]

    Lessig: The US thinks we can impose our will in the global arena. And generally, we can.

    Next up: Jonathan Zittrain on ICANN.

    More to come.

    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.

    Later: Siva on the great needlepoint copyright debate.

    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

    Posting II

    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 a couple of days the next 4-5 days.

    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.

    The promise is to Siva Vaidyanathan & the folks at the University of Minnesota, to continue our discussion of rhetorical strategy in the copyfight. Here's to getting granular.

    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

    Be There

    I won't be able to attend JOLT's conference on Copyright and Fair Use this weekend, after all; instead, I'll be pitching in with the Digital Media in Cyberspace project.

    But Jonathan Zittrain, Dan Gillmor and Siva Vaidyanathan will be there.

    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:

  • Boalt DRM Conference Report, from LawMeme's most excellent James Grimmelmann;
  • Today's Furdlog, link-filled to the brim by MIT's Frank Field;
  • Congestion Control and the Tragedy of the Commons and Reader Replies on Congestion and the Commons, by Edward Felten @ Freedom-to-Tinker; and
  • A Blog Tour of SXSW, by Corante's Renee Hopkins. As a final note, consider checking out another Corante weblog column--the Berkman-ly titled Open Mind. It aims to "follow the story of Open Source techologies" and link to "news about important developments in Open Source, reports on crucial Open Source and Free Software projects, coverage of the personalities that are making it happen and speculation on what it all means for the tech industry."

    Later: Shouldn't be blogging, but cannot resist a pointer to The Myth of Interference, by David Weinberger for Salon. And Betsy Devine's World of Ends II.

    Later #2 (March 14): What he said.

    Posted Tuesday, March 11, 2003

    Larry Lessig's in the House, Part II

    An intriguing exchange, via Paperchase: Larry on the petition to rehear Eldred and SCOTUS blog in response.

    Later (March 12): Orin Kerr weighs in @ The Volokh Conspiracy, prompting Larry to respond:

    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."

    Fare Use

    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 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 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.

    I, meanwhile, am stepping out just now, to go downtown to get a VISA photo. I just found out I'm unexpectedly, and of course extremely happily, headed to Rio de Janeiro for ILAW.

    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").

    Bonus #2: Wes Felter has video of Cory Doctorow's speech on The Hollywood Agenda (via Mindjack Relay).

    Talk Talk

    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.

    Being a student of William James and John Dewey, I have been partial to use-based rhetoric when debating these conflicts publicly. What can't we do now that we used to able to do? What can't scientists and researchers do now that they could before? What can't artists do now that they could before?
    Hoeren suggested starting these debates from a framework of procedural justice--"rules of engagement" in a Habermasian sense. The goal would be to forge a sense of "information justice" that could guide policy and legal decisions through times of rapid technological and ideological changes...[What should we] make of this strategy? Can we come up with a sense of "information justice," both procedurally and substantively, as Hoeren suggests? Where should we start?

    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: On a lighter note, it appears that Larry Lessig needs no rhetorical fine-tuning, as he speaks powerfully the Universal Language. No, not Esperanto. PowerPoint.

    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

    Don't miss it.

    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.

    First Stop

    ...of the day: Valenti Remix, New Valenti Remix and Larry's Keynote (from SXSW)--all from Aaron Swartz. (More on SXSW @ BoingBoing.)

    Second stop: An HTMLified transcript of the CIPA trial about which I posted below, via Seth.

    Third stop: World of Parodies, parodying the World of Ends [via David Weinberger].

    Fourth stop: Tech's Love-Hate Relationship with the DMCA [Declan McCullagh @ CNET].

    Posted Friday, March 7, 2003

    World of Ends + Responses

    You're very likely already here. Here's where you can find out how others are responding.

    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.

    Update: Returning to my desk just now, I see that Eliot Noss of Tucows has responded to the email Doc sent a bunch of us about "World of Ends." Writes Noss:

    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.

    Thanks to both of you for simplifying a complex thought. Mark Twain would be proud.

    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:


    Ben Edelman, an expert witness for the ACLU and Harvard law student, after Supreme Court arguments challenging Internet filtering law

    photograph copyright © 1989-2003 by declan mccullagh. all rights reserved. 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: An interview with Paul Smith, lead attorney for the ALA in the case (via Leah's Law Library Weblog).

    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:

    The government's argument glossed over the serious and far-reaching errors consistently and frequently made by filtering programs--trying to sweep away the lower court's finding that mistakes are inevitable due to the size of the Internet, its rate of change, and the processes used by companies that make filtering software.

    But as the lower court recognized, these are serious errors--many thousands of sites wrongly blocked, as my research shows. The crudity and overbreadth of filtering show the significant cost of installing such software in libraries, and the resulting blocking of misclassified sites establishes a clear First Amendment violation.

    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.

    Language-translation sites and the Google cache and web archives and privacy/anonymity sites, etc., are not "garbage."

    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

    Yes, another one. Last time I tuned in, Billy Tauzin presided. This time, it's F. James Sensenbrenner Jr., staunch supporter of the Sonny Bono Copyright Term Extension Act.

    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 (March 6): Don't miss Edward Felten's Keeping Honest People Honest and Standards versus Regulation--the latest in a long and noble series of posts on misleading terms.

    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?

    So asks Kevin Marks, pointing to this picture worth at least a thousand words.

    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.

    This situation will soon change--perhaps too soon. Both consumer groups and entertainment companies have recently endorsed new Congressional bills to protect their respective rights. While entertainment companies are endeavoring to incorporate technological means to restrict uses of their creations, consumers and technology creators fight in court for the right to circumvent these restrictions. These conflicts are coming to a head, and without the proper frameworks and critical thinking, we may end up with a solution that benefits the stronger lobby group at the expense of the public.

    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:

    Finally, a quote culled from this post over @ LawMeme, on the much-discussed Victor/Victoria ruling: "This is a terrific decision for those who disagree with the trademark-as-cudgel school of intellectual property."

    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

    ...about this?:

    Just Appeal It

    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

    Stanford Spectrum Conference Notes

    Kathryn Yu brings us one-stop blog shopping.

    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.'"

    Later #2: My own favorite (non-dismissive) quote, from Lawrence Solum: "And one more thing...Yochai is one smart dude."

    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): Four Five Six additional bits on the Berkeley DRM conference, before we move on to Things Spectrum.

    Bonus: Jon Johansen (yes, that Jon Johansen), pointing in his new blog to IP Justice, a new "international civil liberties organization focusing on global intellectual property issues." It's headed by former EFF attorney Robin Gross, who is interviewed on the subject by Richard Koman over @ O'Reilly.

    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

    This Article

    ...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)."

    A Woman with a Ph.D., jumpstarting (a few days ago) what looks to be an increasingly fruitful discussion on the Creative Commons licenses:

    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.

    So, dear readers, help me understand why allowing your words to be distributed freely is such a frightening concept, particularly in the context of weblogs.
    How 'bout a "non-shithouse" version of why people might choose not to use the license, that can live side-by-side with the CC discussion of why they should? Not a harangue, or a sky-is-falling piece, but a thoughtful analysis of the potential harm that could come to a writer as a result of adding the license to his or her work.

    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:

    Finally (for now), keep your eye on bIPlog: I'm told Mary Hodder will be posting notes from the conference I wish I was attending today--The Law & Technology of DRM.

    Later: Keep your other eye on this page, where Kathryn Yu tells me that the Stanford Spectrum conference will be streamcast.

    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.

    Kudos a few of my favorite blawgers, now appearing in an ABA Journal near you.

    Next assignment: getting them aggregated over at Blogs at Harvard, where Dave is experimenting with ways to get aggregator newbies like me drinking the koolaid.

    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

    ...Siva Vaidyanathan is gearing up to tell us.


    This just in: Dave Winer will be attending Spectrum Policy: Property or Commons? @ Stanford this weekend--his first event as a Berkman Fellow. And he's going to blog it. Of course.

    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... 

    When did Marty start channeling RageBoy?

    Declan Being Declan; Valenti Being Valenti

    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.

    Who is behind this maneuvering? Don't blame Jack Valenti, or the folks over at the Recording Industry Association of America...You'll find the culprits among the "fair use" crowd....Their intentions may be pure, but their methods are not.

    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?

    In other copyfight news, the NYT is running a piece today on Valenti as the Internet's moral arbiter--to which Dave Winer has a nice rebuttal:

    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 #2.5: Doc ever-so-gently reminds us that Valenti is a representative for the movie, not the music, industry.

    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

    Writes Derek: "Calling All Copyfighters: Blog the Berkeley DRM Conference!"

    Like Frank, I was offered a press pass; also like Frank (and Derek), I cannot make it. Fortunately for all of us, Mary Hodder will be there taking notes. Anyone else? Let us know.

    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 patent madness. Writes Larry Lessig, in a new Financial Times editorial warning Europe against adopting America's "broken" patent system:

    [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.
    Until software patents prove themselves safe and effective, Europe could gain a great deal by sparing its developers the same drug. Rather than copying a failed American policy, the Europeans could be exploring alternatives to patents that might provide protection without sinking the intended beneficiaries. No doctor would approve an untested drug for his or her patient. Nor should Europe inflict such a remedy on its already weakened software industry.

    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":

    From part 2 of Jonathan Peterson's interview with Marc Canter:

    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).

    Marc--Personal server might be the right term. But this is typical shortsighted thinking--looking at blogs today. Just say enterprise to them and knowledge management--and everything will be fine.

    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


    This essay from LawMeme's James Grimmelmann (via Edward Felten). If I had my way, it would be #1. [Update: it's #29 & rising.] An excerpt:

    [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.

    Summit Summary

    Mary Hodder @ bIPlog has helpfully culled quotes & observations on the Digital Rights Summit. A snippet: 

    Larry Lessig gave his poetry slam on copyright. Key points:

    We are legislating using yesterday's technologies as a model. Technologies are in transition. We don't know where the innovations will come. Industries get Napsterized so they fight back. Ease of reuse is key to innovation. Compulsory licensing will solve this. There is a tiny sliver of fair use that does function sometimes. There should be a limit to wrapping up content. Pam Samuelson is right that there should be a way to circumvent for fair use under the DMCA.

    We say "we want balance" and they say "that's because you're a communist."

    Later: Courtesy of Derek & bIPlog, complete notes on the summit in HTML.

    Later #2: For those of you who didn't click through to Mary's post, her round-up of coverage on the summit: Wired, CNET, SF,, Slashdot.

    FurdLog Today...


    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."

    Derek Slater, responding to a Scientific American article on the Creative Commons project (hyperlink, mine):

    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."

    First, economic pundits would probably have more of a problem with it.

    Second, CC does not completely downplay the profit motive. People can actually stand to profit a great deal by allowing less restrictive terms.

    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!

    Yeah, that's us--homeless shelters, hospitals, and libraries. We're some of the "biggest repositories of unlawful sound recordings."

    Oh, and porn.

    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 Peterson & Marc Canter, in Jon's recent Corante interview w/Marc, on the roots of blogging:

    Jonathan--When did you discover blogs?

    Marc--I mentioned to Dave Winer that a site could be a tool. He had content management and a web site framework (with Frontier) and we were discussing scalable content. He said: "gee I can just put up a web page--like this...."

    I said: "cool, but what about media...?"

    He went on to create editthispage, and I've been watching ever since. That was in 1996. I'm still waiting for the media.

    Posted Wednesday, February 19, 2003

    Stuff I Missed

    ...but that you shouldn't:

    Finally, sent to me via email by Joseph Reagle: Mayor Endorses IP Theft! Shocking.


    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."

    It's probably not a good idea for me to formally write that. But it's what I'm thinking right now.

    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: v. etoy.

    So what happened? In 1999, online toy retailer won an injunction from a California court to shut down 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, offered to settle. Later on, it succumbed to dotcom meltdown & a buyout.

    etoy, meanwhile, lives.

    Level two: The 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: Thanks to this book, I now know who Joi Ito is (besides the guy dragging Doc & Dave around), and will shortly add him to my blogroll. About time, eh?

    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

    Much Ado

    ...about Google buying Pyra/Blogger. Here's Google Blog on Google Buying Blogger. (Now say it ten times, fast.)

    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.

    For starters, something to make you smile on this excrutiatingly cold Valentine's Day: Larry Lessig fan fiction (via Frank via David).

    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.

    But Valenti and Ashcroft are all too real.

    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 will infuse all our efforts. It works best when we work together. That's a key part of our philosophy."