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Copyfight--the Expanded Edition After mulling it over for a few months, I've decided to make Copyfight a group-authored weblog--and it debuts today. Copyfight has now MOVED TO A NEW URL and we'll be taking advantage of MT-powered features: trackback, comments, etc. Please adjust your blogrolls accordingly!
Joining me at the new Copyfight are (drum roll, please):
Elizabeth and Jason work on cutting-edge legal issues in pursuing litigation @ EFF and Stanford's CIS. Both have been part of the legal challenges to the Sonny Bono Copyright Term Extension Act, which extended the term of copyright by 20 years.
Jason is now working on a number of cases at EFF, including engaging the ongoing fight against DirecTV--the satellite TV giant seeking to establish an unfortunate "guilt-by-purchase" theory in its campaign against people who buy smart-card technology.
Elizabeth has most recently been working on Golan v. Ashcroft and representing Open Source Yoga Unity, a group of yoga instructors challenging the claims of Yogi Bikram Choudhury that he can copyright a yoga routine and sue other yoga instructors for teaching it.
Increasingly well-known in the blogosphere and author of his own Corante weblog, "Importance Of...," Ernest is a fellow at Yale's ISP and former Editor-in-Chief of its must-read blawg, LawMeme. Last year, he testified before the U.S. Copyright Office for an exemption to the controversial Digital Millennium Copyright Act (DMCA).
Aaron, a co-author of the RSS 1.0 specification, is Metadata Advisor to Creative Commons--that is, he helps make its innovative licenses work. As a Semantic Web developer, he's a member of the W3C's RDF Core Working Group.
Wendy, an IP attorney @ EFF, was key in getting Openlaw--an experimental project that helped the Internet community contribute substantively to the Eldred challenge--off the ground. A longtime Berkman Fellow, Wendy is founder of the innovative Chilling Effects Clearinghouse, which exposes the ways that intellectual property law is abused to silence legitimate speech.
Needless to say, I'm extremely pleased--honored--to have this group aboard at Copyfight. It will be exciting to see what discussions this mix will yield. I invite you to tune in here, and, if you're so inspired, to use our new comments feature to join the conversation. Welcome, all! Posted Saturday, March 20, 2004 Voluntary Collective Licensing--Got the Picture?
Very, very cool. Thanks, Ren. Posted Friday, March 19, 2004 FCC Moves to Regulate Hate Speech? Ernest Miller has (yet) another must-read today--a lengthy analysis of the FCC decision (PDF) on the Bono/Golden Globes "f-word" incident (see the FCC press release [PDF]).The news in a nutshell? In the wake of Janet Jackson's "wardrobe malfunction," the FCC has reversed its previous position on Bono's use of the word "fucking"--as in "this is really, really fucking brilliant." The use has now offically been deemed "profane." Writes Ernie: Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression.Read the whole thing. Xeni Jardin @ BoingBoing: "Last night in LA, I went to a big fucking party thrown by the fucking LA Press Club to show some fucking support for Sandra Fucking Tsing Loh, snarky host of "The Loh Life." The radio humorist was abruptly sacked from KCRW after her fucking engineer failed to bleep a certain fucking four letter word from a fucked-out taped comedic monologue. Fuck!" Later: Jim Tyre (via email): "It's not a good ruling, but: (1) it was based primarily on indecency, profanity was almost an afterthought; and (2) there was no fine, though the FCC was sending a message, as it were, about what it might do in the future." Trump Now in the IP Biz Donald Trump is seeking ownership of a brand new property. Nope, not another skyscraper/casino. He wants the catchphrase from his new hit show, The Apprentice. That's right--Trump wants to own the words "You're Fired."ABC News reports that Trump is looking to "copyright" the phrase, which of course you can't do. You can, however, trademark a phrase, and in this Trump may very well succeed. The Reuters piece includes a rare touch of evidently borrowed humor: "Trump might have competition: A search of the PTO's database revealed that three other applications for 'You're fired' have been filed. [Wait a beat.] No applications appear to have been filed for 'You're outsourced,' however." Marty Schwimmer: "You're Fired? Where are the catchphrases of yesteryear? Dyn-o-mite? You Look Fabulous? Two Wild and Crazy Guys? Aaaa-yyy, the Fonz? Keep on Truckin'? Hasta la Vista Baby? Cowabunga? Go Ahead, Make My Day? Where's the Beef? Kiss My Grits? Isn't that Special? A Kinder and Gentler Nation?" Later #2: Mary Hodder: "I think Fuck may still be available [for trademark] too. Or at least Fuck the FCC." Posted Thursday, March 18, 2004 Ernest on CA Anti-Piracy Bills A marvelously thorough smackdown of the two terribly misquided anti-"piracy" bills introduced before the California legislature. The bills would require anyone who knowingly disseminates commercial recorded or audiovisual material over the Internet to mark it with his or her name and address or face a possible one-year prison sentence. It's a very, very bad idea.Writes Ernie: EFF notes the pernicious effects on children's privacy...There are many more problems with this bill as well. [...]More from Tech News World. Siva on Free Culture's "Scholarly Partner" Siva Vaidhyanathan has a question of interest to copyfighters of the scholarly persuasion: What should we call the emerging field of study that recognizes the architectural element of expression in the networked environment? Or, as Siva puts it, what do we call the "scholarly partner" to the Free Culture movement?Siva's trial balloon is "Critical Information Studies," a term he suggests might encompass work by economists, communication scholars, lawyers, computer scientists, librarians and others to interrogate the "structures, functions, habits, norms, and practices that guide global flows of information and cultural elements." Central to this field of inquiry, writes Siva, is a concept many of us have begun to call "semiotic democracy," or the ability of citizens to "employ the signs and symbols ubiquitous in their environments in manners that they determine." To my view, Siva's term works rather well--I've seen "critical media studies," but that doesn't connote information/networked environments specifically. What do you think? If you have a thought or two to share, do let me or Siva know. Posted Tuesday, March 16, 2004 Score One for the Public Domain Kudos to the talented group of freedom fighters @ Stanford's Center for Internet and Society for scoring this important victory in the ongoing Golan v. Ashcroft case.Help a Library Win a Copyfight [This post title pilfered directly from BoingBoing's open pockets. Or did Cory steal it from me? Dang. This IP stuff is so confusing.]The wonderful Jenny Levine, a.k.a. The Shifted Librarian, has the full scoop. Snippet: So here we have the little Library that could and did (David) that can't get the attention of Warner Brothers (Goliath) just so they can show the fantastic video they did for their staff in-service day (and let me tell you, the video TOTALLY ROCKS!). Would SJCPL make a single dime off it if they post it online? No. In fact, it would probably cost them loads in bandwidth. Posted Monday, March 15, 2004 Stupid White Men and Semiotic Democracy Siva Vaidhyanathan, analyzing today's NYT piece on the attempt by the publishers of Michael Moore's Stupid White Men and Other Excuses for the Sorry State of Our Nation to force the publishers of How to Get Stupid White Men Out of Office to change the title of the book:"The problem here is not just one of rabid efforts of protection. It's also a matter of the conflation between these two distinct areas of law that we unfortunately (and harmfully) combine under the meaningless phrase 'intellectual property.'Michael Moore himself, quoted in the piece: "I bumped into somebody that was working on the project a few months ago and said it is important that the public not think that it was a book by me. But I am flattered that somebody would take something that I did and use it to create change." CA Attorney General = MPAA Sock Puppet? Xeni Jardin of BoingBoing fame has a Wired piece this morning suggesting that California Attorney General Bill Lockyer is using a peer-to-fear talking points memo supplied by the Motion Picture Association of America. The tip-off? A smoking MS Word document tellingly marked with MPAA metadata and invective. The document, purportedly a letter from Lockyer to a number of P2P companies, contains a not-so-veiled threat that unless they make more of an effort to warn users about the "legal and personal" risks of using P2P networks, the companies could face charges of deceptive trade practices: It is widely recognized that P2P file-sharing software currently is used almost exclusively to disseminate pornography, and to illegally trade copyrighted music, movies, software and video games. ...A failure to prominently and adequately warn consumers, particularly when you advertise and sell paid versions of your software, could constitute, at the very least, a deceptive trade practice. Fred von Lohmann, quoted in the piece, offers the obvious rebuttal: "The principle has no limit--you can use Internet Explorer to violate the law or unintentionally access pornography, so does [Lockyer] want to suggest that Microsoft is also breaking the law? Why stop at the Internet--should Ford be held liable for failing to warn drivers that exceeding the speed limit will expose them to citations?" P2P United, meanwhile, suggests--facetiously?--that the letter is a fake: "The letter contains so many factual errors concerning peer-to-peer technology and the allegedly disproportionate 'danger' that it poses to the public relative to other popular means of accessing and searching the Internet (e.g., Google or AOL) that it would seem unlikely to have been produced by your office." Later: Jason Schultz: "[The letter is] the more disturbing because [it] threatens the P2P companies with lawsuits that would be funded by state tax dollars. It's one thing for the MPAA to sue P2P companies on their own dime. To make the public foot the bill on behalf of Hollywood's millionaires doesn't seem to me to be in the public's interest." Posted Thursday, March 11, 2004 Where It's At As Derek Slater says, So many links, not enough time.For those similarly time-pressed, here's terrific one-stop shopping for debate over EFF's white paper on collective licensing, from the unstoppable Ernest Miller. Posted Tuesday, March 9, 2004 EFF Joins Suit to Stop Broadcast Flag Fred von Lohmann in an EFF media release about the new lawsuit to stop the broadcast flag: "The FCC's digital broadcast television mandate is a step in the wrong direction because it would make digital television cost more and do less, undermining innovation, fair use, and competition. The FCC overstepped its bounds, unduly restricting consumers and manufacturers when it issued its broadcast flag ruling." Later (March 10): ZDNet: "The broadcast flag controversy, while far less visible than the debates over peer-to-peer networks, is one of the key issues in the passage of traditional entertainment companies into the digital world." Victory for Fair Use--Priceless Jason Schultz: "Back in 2000, Ralph Nader ran a bunch of ads critiquing the corporate interests behind the Bush and Gore campaigns. To make his point, he used the style and some of ideas behind MasterCard's 'Priceless' ad campaign--specifically calling out the dollar amounts that corporate interests paid to candidates to secure their positions on the issues. [...]Today, after four years of discovery battles and summary judgment briefing, the trial court ruled that Nader's use was, in fact, fair." Food for Thought From Brother Ernest: Victory for EFF Creates Problems for EFF's Filesharing Solution.Posted Monday, March 8, 2004 Notable + Quotable Michael Geist, proposing that Canada take the lead in using blanket licenses to resolve the conflict over peer-to-peer systems (hyperlink, mine): "Unlike the U.S., which has more limited experience with collective licensing, the Canadian marketplace has a much richer experience with such approaches and could provide a fertile ground for a national pilot project to examine whether a peer-to-peer blanket licence is a realistic alternative. Moreover, last week the Supreme Court of Canada sent a strong message to the copyright community in a landmark decision in which it made it clear that it would interpret copyright law in a manner that balanced the interests of both creators and users." Michael Franti of the hip-hop group Spearhead, on the controversial proposed European Union Intellectual Property Rights Enforcement Directive (EUPR): "Prosecuting fans who share music files in order to prevent piracy is like outlawing sex to prevent pregnancy. [...] Fans, labels and artists alike are going to need to make changes in the way we buy, sell and market music, but the draconian nature of these laws is more of an attack on civil liberties than it is a solution to the changing times we are living in." Nancie Marzulla, president of the U.S.-based Defenders of Property Rights (emphasis, mine): "How can we translate the kind of property protections that exist in this country to other nations--especially nations that exist under Communist regimes, such as China? Negotiating Free Trade Agreements with strong intellectual property rights protections is a good start; so too is helping these countries to amend their Constitutions to include provisions protecting private property rights, such as China has recently indicated it is doing." George Scriban, on the article drawn from Larry Lessig's next book that appears in this month's Wired: "Movies, TV, cable, radio, in addition to making liberal use of the public domain, are all the stepchildren of piracy, having appropriated existing content for their own ends without permission. As is so often the case when we move from revolution to institution, once the peasants have occupied the castle they pull up the drawbridge behind them." Brad Templeton, on the push to develop intermediary control in peer-to-peer systems: "It's sad that the RIAA's crusade will cause people to modify P2P networks into non-P2P, and gain the RIAA nothing." Derek Slater, reflecting upon last week's Digital Music Forum: "I didn't understand why the third panel 'The Death of the CD?' had a question mark in its title--isn't it somewhat obvious that physical media will die? Yes, some people will still buy physical goods, and estimates do vary as to when digital downloads will supplant CDs. But, I thought, no one really looks at the growth of P2P and the online music services; the great cost savings possible online; and digital media and technology's flexibility, and thinks that CDs are here to stay for a long while, right?" Posted Friday, March 5, 2004 Voluntary Collective Licensing: the College Years Edward Felten, on EFF's proposal for resolving the conflict over peer-to-peer file sharing:It seems to me that if the EFF plan is going to happen, it will start with a deal between the RIAA and a university, in which the university creates a fund to pay out to copyright holders, in exchange for (a) free rein to do anything at all with copyrighted music within the campus (but not to distribute it outside the campus), and (b) permission for anyone, either on the campus or off, to transmit music to people on campus. Later: Ernest Miller, suggesting that employers might take advantage of an EFF-like solution to enable file swapping by the water cooler: "I can imagine many companies paying for filesharing licenses for their employees in bulk." Cato on Drawing Lines in Copyright Law If you know Cato, you may feel like you've already read this new piece by Adam Thierer on the proper approach to resolving conflicts over intellectual property on the Net. He advocates less "ham-handed" legislation, more "common law resolutions"--even to the point of (semi-) endorsing the RIAA's litigation campaign: [If] you're a broadcaster or a movie studio and discover that a handful of individuals are redistributing your products without permission or compensation, why not just sue them directly and avoid all this regulatory nonsense? No good answer was provided. What makes this all the more surprising is that such a model already existed in the lawsuits that the Recording Industry Association of America (RIAA) was filing against individuals accused of widespread copyright infringement.It nevertheless warms the cockles of my heart to hear someone besides EFF say that "[If] millions of average movie lovers like me are considered criminals for merely copying a few of their favorite movies or individual scenes onto a different disc, then something has gone horribly wrong with copyright law in America." The article--including brief discussion of the broadcast flag mandate and the MGM v. 321 Studios decision--here. Later: Dan Gillmor, whose cockles were likewise warmed, is predictably forced to tangle with anti-Cato trolls. Posted Thursday, March 4, 2004 User Rights Aren't Loopholes University of Ottawa law professor Michael Geist, the man behind the what is perhaps the single most valuable email list on cyberlaw issues, discussing a decision today by Canada's Supreme Court that demonstrates refreshing copyright sanity:As Professor Vaver, supra, has explained, at p. 171: User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.More from Professor Geist @ Dave Farber's IP list. Later (March 5): Plain language translation of the ruling by a reader @ Lessig blog: "Photocopiers don't infringe people; people infringe people." What Bunner Means--Or Doesn't Doug Simpson of Unintended Consequences just sent me a link to his analysis of the recent decision (PDF) in DVD-CCA v. Bunner, in which he concludes that:Check out the complete analysis here. Posted Tuesday, March 2, 2004 Ibid Here's my link to the many-times linked Larry Lessig post mortem on Eldred.Posted Monday, March 1, 2004 Doublespeak Quote of the Day MPAA head Jack Valenti: "If you buy a DVD you have a copy. If you want a backup copy you buy another one."Later: 321 Studios is launching a week-long campaign today to raise awareness about fair uses of digital media and to encourage people to stand up for it. Sez Wendy Seltzer in an EFF advisory: "The public's rights to fair use of copyrighted works should not disappear in the face of technological restrictions. To bring back copyright's balance, we encourage individuals to write to Congress and the entertainment industry about their expectations when purchasing movies and other media." Later #2: The San Jose Mercury News on the 321 decision: What Copyrights? Sure, you can hold a video camera up to the TV and make a poor-quality duplicate of a DVD. Or, with an eBook, write out a copy longhand. To the judges, that would satisfy fair use: There's no constitutional guarantee, they said, to make perfect duplicate copies. Such a narrow view, while pleasing copyright holders, denies consumers huge benefits of digital technologies. Movie studies and recording companies can write software protections that permit personal copies and other fair uses; they simply choose not to, and Congress, by banning circumvention technologies, has let them get away with it.(Via Frank Field.) IP v. Property, Bits v. Atoms Just after I included a post by Cardozo cyberlaw professor Susan Crawford in my latest Notable + Quotable, I found her sounding the same themes with regard to copyright and innovation in this NYT piece: "Bits are not the same as atoms. We need to reframe the legal discussion to treat the differences of bits and atoms in a more thoughtful way."Here's the report [PDF] that the NYT piece profiles; more from Professor Crawford, who co-authored it, here. Later: Ernest Miller, responding to Professor Crawford's Bits, Atoms, and Beethoven: We aren't at the beginning of an era where we numbly accept content. The beginning of that era was when Edison first set stylus to wax cylinder, the beginning of the era of mechanical reproduction. It was an era of unchangeable physical format that could only be produced and distributed efficiently en masse. That era is dying.Later #2: Mary Hodder culls excerpts from the co-authored report. Posted Sunday, February 29, 2004 Creativity Always Builds on the Past Creative Commons held a contest to produce a short video that clearly communicates its mission: to give creators a legal, hassle-free way to introduce shades of grey to an otherwise control-all-or-control-nothing, black-and-white copyright regime.Check out Justin Cone's winning entry: Building on the Past. Not only does it effectively convey CC's message, the medium has an appropriately central role: the video uses material from the Prelinger Archives, "re-mixed" to produce something wonderfully fresh. (Via Matt Haughey at Creative Commons.) Notable + Quotable A member of Mount and Stoelker law firm, on the size of statutory damages authorized by the Copyright Act: "Hmmm...what did Disney pay to get that?" (Via Dan Fingerman.)Cardozo cyberlaw professor Susan Crawford: "[During] the last 25 years or so we've adopted this prayerful, pure...approach to 'classical' music. We see and hear these works as unchanging and unchangeable. But that's not what they are--they're not frozen in amber, they're not things we're supposed to respect in the abstract. They change with the times. Maybe (here's the tie-in to innovation and intellectual property) we're in an era in which we're beginning numbly to accept that 'content' is just provided to us... [But music] isn't wallpaper, and you don't 'acquire' concerts. You experience them." Eben Moglen, via Frank Field via Groklaw: "The fundamental belief in fairness here is not that it is fair that things should be free. It is that it is fair that we should be free and that our thoughts should be free, that we should be able to know as much about the world in which we live as possible, and that we should be as little as possible captive to other people's knowledge, beyond the appeal to our own understanding and initiative. [...] If you think about it, it sounds rather like a commitment to encourage the diffusion of science and the useful arts by promoting access to knowledge." [More on the Harvard speech from which the above is an excerpt, by the Berkman Center's Mary Bridges.] Peter Hirtle, in a piece @ Stanford University's library website that makes explicit the role of personal and library copying in preserving our shared culture (or to put it another way, why we need an anarchist in the library): "Good preservation practice has often existed in a legal gray area. Libraries usually made three copies when microfilming long before the law gave explicit permission for the practice, and many radio programs have been saved only because individuals systematically taped them from the air, without the permission of the copyright owner.[31] Digital preservation resides in an even murkier legal gray area because of the fundamental need to copy digital information (one of the exclusive rights of the copyright owner) in order to preserve it." Via Lawrence Solum, U.C. Berkeley/Boalt Hall law professor Mark Lemley: "The traditional theory of IP is that the prospect of future reward provides an ex ante incentive to innovate. An increasingly common justification for longer and more powerful IP rights is ex post--that IP will be 'managed' most efficiently if control is consolidated in a single owner...Those who rely on this theory take the idea of IP as 'property' too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn't just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market." What to Do with Your $13.86 Been wondering what to do with that CD price-fixing settlement check burning a hole in your pocket? A few options:[X] - Buy a CD...just part of one to be precise, since they're so overpriced. Posted Friday, February 27, 2004 Bunner Acquitted in DeCSS Case-Again You recall that Jon Johansen was acquitted for writing/distributing software code that decrypts the data on DVDs--not only once, but twice?Andrew Bunner has just joined the club. The DVD-CCA previously asked to end its lawsuit against Bunner over posting the DeCSS code, but was denied. Today, the California Court of Appeal for the Sixth Appellate District found [PDF] that the injunction against Bunner was improper, that it inappropriately burdened speech and that the DVD-CCA was not likely to succeed on the merits in the case. The injunction has been reversed and Bunner awarded costs. Says EFF's Gwen Hinze: "Today's Court ruling that there is no evidence that CSS was still a trade secret when Mr. Bunner posted DeCSS vindicates what we have long said; DeCSS has been available on thousands of websites around the world for many years." Richard Weibe: "This long-delayed but gratifying victory sends a strong message to those who would try to misuse intellectual property laws and corporate power to stifle free speech on the Internet." Later: Jason Schultz culls a number of interesting bits from the ruling. Later #2: Ernest Miller: "One very interesting aspect of the decision is that there is no mention of the DMCA and how it relates to the trade secrets law." Later #3: Edward Felten: "This is a sensible ruling. The only surprise is that it took the California courts so long to reach this conclusion." Later #4: More from Robin Gross @ IP Justice. Tell Us How You Really Feel Veri$ign executive Tom Galvin, on his company's filing a lawsuit against ICANN: "Working the ICANN process is like being nibbled to death by a duck. It makes no sense, and in the end, you're dead in the water." (Via Ditherati.)Later: Thomas Roessler: "Essentially, it seems like the new registry services issue has just been moved from the GNSO to the court system." More @ ICANNWatch. Later #2: James Grimmelmann @ LawMeme: "The most evil organization behind the 'Net is suing the most inept." DVD Copy Minus That's Wendy Seltzer's name for the 321 Studios "DVD Copy Plus," if stripped of its ripper.Notes The Register, in an article about the "DVD X Copy," so stripped: "The irony is that the open source DeCSS code is widely available on the Internet, and it won't be too hard for users to locate ripper software that can extract files from a DVD. The new versions of DVD X Copy will then be able to burn those files to a fresh disc, as before." Posted Thursday, February 26, 2004 David Weinberger, Berkman Fellow Bravo to the Berkman Center for snagging David Weinberger as a fellow!This makes the second Berkmanite to blog @ Corante. If you haven't yet read David's work, here's a (highly recommended) taste. SETI@Home for Online Censorship The Berkman Center has been working on this one for a good long time--extremely exciting to finally see it launch:The number of states seeking to control the Internet has risen rapidly in the recent years. Mustering powerful and at times compelling arguments--"securing intellectual property rights," "protecting national security," "preserving cultural norms and religious values," and "shielding children from pornography and exploitation"--extensive filtering and surveillance practices are being proposed and put in place to curb the perceived lawlessness of the medium. [...]Via the "must-syndicate" Berkman blog. Posted Wednesday, February 25, 2004 EFF on P2P: A Better Way Forward For those of you who haven't yet seen it, here is EFF's white paper on how to resolve the crisis over peer-to-peer file sharing: A Better Way Forward: Voluntary Collective Licensing of Music File Sharing.More to come. Later (February 26): A group textual analysis via Quicktopic is now underway, whilst Big Media sez... Later #2: From the ever-helpful Derek Slater, two stop shopping for (1) background and (2) terminology in the debate. Later #3: From the ever-thoughtful Ernest Miller: First thought: EFF finally agrees with me (mostly)! Copyright Land Grab - Discuss, Part II Two posts from Larry not to be missed:
Copyright Land Grab - Discuss Mikael Pawlo of Greplaw has yet another excellent interview--this time with Jessica Litman (hyperlink, mine):Greplaw: Which are the three most important trends in copyright legislation today?Speaking of which, there's a brand new spot for relentless discussion: an open forum on the history of intellectual property in the U.S., led by the wonderful (or should I say gifted?) Lewis Hyde, Berkman fellow and author of The Gift: Imagination and the Erotic Life of Property. Snippet from Mr. Hyde's introduction to the dicussion: My own interest in this history began with the surprising lack of debate some years ago when copyright term extension was pending. There seemed to be almost no public sense of why it might matter to preserve a lively public domain. One was led to wonder if there weren't historical roots to the public domain's lack of presence in our political and economic discourse. If that is the case, might not an understanding of this history be a useful tool for those of us trying to shape current policy? Posted Tuesday, February 24, 2004
Posted Monday, February 23, 2004 321 Steps In Eldred Mess Seth Finkelstein, on the recent decision [PDF] in MGM v. 321 Studios: "Last year, there was a DMCA / fair use 'pony hunt' to find a way to argue that a sentence in the Eldred decision would undo the legal hack where the DMCA hacks-away fair use. Unfortunately, we are still left with a pile of manure."Later: For more on the decision, here's press coverage/linkage round up #1 and #2--from, respectively, Frank Field & Denise Howell. Later (February 26): A Cyberia-L email list member: I am sure that all who have read the 321 decision have noticed that it isn't really a "decision"--it is a kind of "recitation" of assertions made in Reimerdes/Corley and Elcom. For the very same money, a law clerk with a pair of scissors and a supply of scotch tape could have "assembled" the "opinion" from the other DMCA cases--no trouble need have been taken to "write" it.Later #2: Derek Slater: The meaning of Eldred as read through MGM v. 321 is that the government may limit fair use (as guaranteed by the Constitution) so long as it advances "significant government interests" and does not unreasonably burden fair use... What's interesting is that, at first, it sounds like intermediate scrutiny, which is what the Eldred appelants wanted, but it seems very watered down. So it's better than no First Amendment scrutiny, but only just. Posted Thursday, February 19, 2004 DRM Got You Down? Or worse yet, relentlessly preachy?Via Ernest Miller, the antidote: Player: I hear Mongoose Publishing is releasing a new edition of the Paranoia roleplaying game this August. What can you tell me about it? WhenU Pit Trademark Law Against Competition Fred von Lohmann, in a media release on the amicus brief EFF signed in 1-800 Contacts v. WhenU: "If I'm walking to my neighborhood drugstore to purchase contact lenses and on the way I see a pharmacy with lenses at half the price, I should be able to stop by and take a look at the competition before making my purchase."Later: EFF Seeks Reversal of WhenU Ruling: "The amicus brief details several examples of offline advertising that divert consumers' attention by presenting them with competing products during their shopping process. It describes the District Court's injunction as dangerous because it appears to target a whole medium without addressing the content of the advertisements themselves." DirecTV v. Freedom to Tinker A computer engineer whoPosted Thursday, February 12, 2004 DRM Roll, Please My EFF colleague Jason Schultz (hyperlinks, mine): "Forget open content on your next-generation mobile device: CMLA is here to make sure you only use Big Content from the corporate media. [...]Result: A technical and legal hack around fair use and the Betamax doctrine. The only devices that can play Big Content are those that have undergone CMLA's fair use labotomy and come out crippled." And on that note, here's a word or two on the subject from Jim Griffin in his much-discussed interview with The Register: With copyright owners it's difficult to monetize things after the fact. In wireless, we live in 1992, at 14.4 kbits/s, which is shortly before the troubles began!...The 3G networks are going in and they're wondering how to get people to use them, because if they don't use them for data, people can use 2G networks for voice. But before high bandwidth wireless takes off we still have the opportunity to do this for copyright holders, before the fact. Posted Wednesday, February 11, 2004 Ellison v. AOL: New Clarity in the Blame Game? What does an Internet Service Provider (ISP) have to do in order to avoid paying the piper for enabling copyright infringement? Do the "notice-and-takedown" procedures under the Digital Millennium Copyright Act (DMCA) provide a square deal for everyone involved--the ISP, the copyright holder, and the user accused of copyright infringement?Derek Slater, Ernest Miller and Jason Schultz grapple with these questions and others in their responses to the ruling yesterday in Ellison v. Robertson et al.; if you haven't yet had the opportunity to look at the decision [PDF], following is a rough guide to the action: Derek: "According to the ruling, the ISP must have a notification procedure much like that for 512(c). Thus, a service provider cannot simply create a policy and then remain willfully ignorant of notices pertaining to that policy. Seemingly, an ISP would have to act on the notices to whatever extent its policy requires; otherwise, notices of infringement would still 'all into a vacuum and go unheeded.' [...] Kill Bill, Vol. 3 Word on the street was correct: Brandy Karl, who has previously written @ FindLaw about our export of American-style copyright restrictions abroad via free trade agreements, now has a new piece up explaining why it's necessary to kill in its infancy the proposed Database and Collections of Information Misappropriation Act (DCIMA):In short, "[The] DCIMA is patently unconstitutional. In addition, from a policy perspective, it is a mistake--and the way it is currently drafted only worsens that mistake." Free Culture Proponents Are the True Conservatives Kevin Werbach has a very fine response to James Delong's argument that the so-called Copy Left, or Free Culture movement contains more than a few trace elements of communism: Previous post by Larry Lessig on the issue, here. Later: A second fine response, to Delong's reply: The movie industry...has voiciferously promoted its conception of its intellectual property rights as morally sacrosanct, now and forever. One key rhetorical move they make in doing so is to label anyone who questions their viewpoint as a communist and/or a pirate. (I'm not sure which is the greater insult.) You either support the Sonny Bono Copyright Term Extension Act... or you're in the dustbin of history with Lenin and Trotsky. In a political battle, demonizing the opposition can be very effective. Hail Mary II bIPlog's Mary Hodder attended a Yale ISP/Harvard Berkman scholar's meeting at which John Palfrey, David Johnson and Susan Crawford presented on "The Accountable Net"--and blogged it for our benefit. Thanks, Mary!Hail Mary I've been meaning to say this for a while now but literally haven't had the chance: check out Mary Bridges' work @ the Berkman Center. She's the brain behind the Berkman weblog, Berkman Briefings, the Digital Media Project weblog and evidently, much, much more.Posted Tuesday, February 10, 2004 LawMeme on Betamax/Grokster: Back to the Future My EFF colleague Ren Bucholz, over @ LawMeme:
With apologies to Wayne and Garth: excellent. Check it out. More on the Betamax decision and how it applies to the current struggles over peer-to-peer technology here. Kill Bill, Vol. 2 It wasn't long ago that I wrote to warn you of the Coming of the Anti-Feist--a.k.a. The Database and Collections of Information Misappropriation Act, a bill that would extend copyright-like protection to collections of facts. This is a Very Bad Thing, yet it has already been approved 16-7 in the House Judiciary committee. Now the good people at Public Knowledge have issued their own warning, and are providing you with yet another opportunity to tell your representatives to Kill Bill. If you haven't yet, please do check out the details here or here, and help Congress do the right thing. Later: Word on the street has it that Brandy Karl will have a new piece up tomorrow @ FindLaw on why we need to kill the DCIMA. Keep your eyes peeled. Later #2: Siva Vaidhyanathan, author of Copyrights and Copywrongs and the forthcoming Anarchist in the Library: "This is one of the most dangerous information policy moves since the DMCA." Speaking of Copyright, and Facts... Farhad Manjoo @ Salon thankfully ventures beyond mere regurgitation of the facts in his report on yesterday's hearing in OPG v. Diebold:"What happened at Diebold was, they said, 'Hey, there's this embarrassing stuff online,'" [Cindy] Cohn said in an interview. "So their lawyers said, 'Here's this easy way to get them down--we don't have to go to a judge, we just say they're copyrighted.' Diebold says, 'Sure, that's cheaper.' What we'd like to have interjected in that conversation is a lawyer saying, 'Wait a minute, we don't have a valid copyright claim.'" EFF asked the judge to make Diebold pay the OPG's attorneys fees and other damages as a way to deter other firms from too quickly reaching for the DMCA.Indeed. Posted Thursday, February 5, 2004 The Digital Challenge to Copyright Law Are you going to be there?I will, and likely will blog Digital Music: What Does the Future Hold?, the panel featuring my fellow Berkman-ite/EFF colleague and personal hero Wendy Seltzer. So if you can't be there in person, visit this space; I'll capture as much as I can. Later: Sorry, folks--a computer mishap stopped my plan to blog in its tracks. Took copious notes by hand, however, and shall post soon. Posted Wednesday, February 4, 2004 Listening to Grokster Still wondering what happened during yesterday's oral argument in MGM v. Grokster? Bypass the spin, listen to the hearing [MP3 file, public domain], and decide for yourself.My favorite bit: when Judge Noonan calls Mr. Ramos on his use of overheated rhetoric--e.g., piracy talk: "Let me say what I think your problem is. You can use these harsh terms, but you are dealing with something new, and the question is, does the statutory monopoly that Congress has given you reach out to that something new. And that's a very debatable question. You don't solve it by calling it 'theft.' You have to show why this court should extend a statutory monopoly to cover the new thing. That's your problem. Address that if you would. And curtail the use of abusive language." Later: Wendy Seltzer, urging unrestricted swapping of the oral argument MP3: "It's public domain, so share freely on the peer-to-peer networks whose legality Fred von Lohmann and Mike Page eloquently defend." Groking Grokster The most detailed and accurate press coverage on yesterday's Grokster hearing so far is available here [San Jose Mercury News].More, soon. *** Later: A few tasty excerpts from a first-person account of the hearing by a Pho list member: Russ Frackman, a really great guy and lawyer, argued for the RIAA companies and Carey Ramos for the music publishers...The panel turned on Russ pretty badly. Judge Noonan was almost libertarian and in addition to accusing Russ (at least three solid times) of completely miscasting Betamax, he also openly questioned, as did Judge Thomas, the opinions in both Napster cases previously heard by the 9th...His argument that P2P applications could be forced by the Court to adopt new blocking technology was met by great skepticism by Thomas and Noonan. Posted Monday, February 2, 2004 The Importance of...Reading Ernest Former LawMeme Editor-in-Chief and current Yale Fellow Ernest Miller has a brand new home for his weblog--right here @ Corante.Welcome, Ernie. It's a good day for the blogosphere. Also setting up shop: EFF's Brad Templeton, spreading some very Brad ideas. Betamax in the Balance You recall the day last spring that Grokster/Morpheus was Betamaxed? Tomorrow is the day that MGM et al. will try to persuade the 9th Circuit Court of Appeals that the lower court got it wrong.Frank Field has the essential links; Derek Slater, meanwhile, has his own personal contribution. Bonus: Three excellent pieces reflecting upon the present struggle over peer-to-peer networks, the Betamax decision, and the future of innovation in the digital sphere:
Posted Sunday, February 1, 2004 Apple "Talks" to the Pepsi Generation The Register has the best take yet on the perplexing Pepsi/iTunes ad that will be shown during the Super Bowl broadcast rather than the small-media birthed Moveon.org ad (hyperlinks, mine): The broadcast encourages children to buy as much teeth-rotting Pepsi soda as they can in the hope of finding a token that allows them access to a free, DRM-infected piece of Pepsi Cola. So Apple fancies itself a champion of "rip, mix, burn" culture--that is, a culture empowered to "talk back" to big media. Yet here it serves as the willing mouthpiece for an industry that would like nothing better than to convince the Pepsi Generation™ that the personal computer is only (yet another) conduit for passive, tightly controlled consumption. And CBS runs the ad--because this message isn't in the slightest bit controversial. This would be thoroughly depressing if it weren't for the fact that the message isn't likely to hit the target. It's not just that teenagers can smell lame (read "condescension") from miles away. It's that they're already using their computers to do a lot more than consume, and they're not going to want to stop anytime soon. Sure, they'll drink some Pepsi and download a few "free" iTunes. But not without knowing full well that only it's brown sugar water and a consolation prize. Later: Via Cory, what Downhill Battle would like you to do with said prize. Later #2: Kevin Doran: "[It's] kinda like those eggs on drugs commercials--ridiculed as being hopelessly lame because they tried to be soooo hip. The only people who didn't want to go out and get those sizzling drugs were the ones with the munchies who wanted some eggs." Posted Thursday, January 29, 2004 Vox Populi A quartet not to be missed:
Posted Wednesday, January 28, 2004 The Coming of the Anti-Feist, Part II Here's where you can head it off at the pass.We're surrounded by free factual information, but there's a bill in Congress that would lock it all up. The Database and Collections of Information Misappropriation Act (DCIMA, H.R. 3261) extends extremely broad copyright-like protections to collections of factual data--data like the price of a TV, the temperature in Arizona or information collected during scientific research. DCIMA would allow companies to sue anyone who interferes with their ability to profit from data that they collect. In other words, academic researchers, public libraries, Internet innovators and other database users would have to pay up if someone else claims to have assembled the data first. This is not only unnecessary, it's bad policy. Or as Frank Field puts it, "actually a little perverse." More, here. Posted Tuesday, January 27, 2004 Geek the Vote Via Declan McCullagh @ Politech: something to read in lieu of utter nonsense about a barbaric yawp.As Declan himself notes, the information above is useful yet a bit stale. By now most of us have heard the news about Howard Dean's support of smart card IDs in driver's licenses and Kerry (like most of Congress) signing on to the USA PATRIOT Act with praise for the "compromise" position it strikes. Kucinich, meanwhile, is the only Democratic candidate to have taken a strong, principled stand against DMCA abuse. We need a new scorecard. Later: Larry Lessig, on Declan's Howard Dean/smart card story: "What Declan doesn't get (how to read)." Later #2: Edward Felten: "At bottom, what we have here is a mistake by Dean, in deciding to give a speech recommending specific technical steps whose consequences he didn't fully understand. That's not good. But on the scale of campaign gaffes, this one seems pretty minor." Later #3: Aaron Swartz in a post entitled "The Media vs. the Facts": THE MEDIA: Dean has an extremely short temper. When he didn't come in first in Iowa, he went crazy and started screaming at his supporters. Posted Monday, January 26, 2004 PATRIOT vs. the U.S. Constitution This time around, the Constitution won: "A federal judge has declared unconstitutional a portion of the USA PATRIOT Act that bars giving expert advice or assistance to groups designated foreign terrorist organizations."Absolutely fantastic. Later: EFF's Kevin Bankston: "Under PATRIOT, it would have been illegal to provide humanitarian or political advocacy training to the anti-apartheid African National Congress, which was a designated 'terrorist' organization before apartheid was defeated. This decision ensures that Americans can exercise their First Amendment right to engage in non-violent political activism without being branded terrorists-by-association." Posted Saturday, January 24, 2004 Eyes on the Prize A few Pholks are offended that The Tyranny of Copyright? could be interpreted to attribute the term "copyleft" to Larry Lessig and not Richard Stallman; I myself was a little surprised not to see a mention of EFF in the discussion of the (ongoing) Diebold e-voting case. The reason, though, seems clear to me: the article is focused on the social movement that promises to emerge from the phenomenon of open source/free software, not free software itself. It's focused on the fact that a number of us have recognized that there is something wrong with copyright today, not on naming particular groups fighting particular battles. It's all good. I appreciate that Pholks are dissecting the article; it will help many of us learn more. But I'm less interested in identifying "inaccuracies" than I am in what this piece means in terms of taking our message farther. Posted Friday, January 23, 2004 The Copyfight Hits NYT Magazine Via uber-copyfighter Siva Vaidhyanathan: The Tyranny of Copyright?:Once a dry and seemingly mechanical area of the American legal system, intellectual property law can now be found at the center of major disputes in the arts, sciences and--as in the Diebold case--politics.Yup. Speaking of which, here's a little something you can do about it. Posted Thursday, January 22, 2004 DVD CCA Raises White Flag in DeCSS Case The DVD CCA today decided to give up its multi-year battle to convince the courts that Andrew Bunner's publishing of widely available DeCSS code is a violation of trade secret laws. Later: Slashdotted. Later #2: Allon Levy, Bunner's attorney: "Following a four year battle, the plaintiffs appear to have finally conceded that their case lacks merit. I'm pleased that we were able to restore the traditional balance that has always existed in trade secret cases at its core, a trade secret holder simply cannot successfully restrain the dissemination of publicly available information. Both common sense and the First Amendment dictate that a trade secret that isn't secret anymore just isn't protectable." Later #3: Andrew Bunner (@ Slashdot): "My fifteen minutes of fame are over. The DVD CCA is dropping their case against me...To celebrate the occassion, I've asked my lawyers to file a counter-suit alleging emotional anguish and seeking damages of one hundred billion trillion dollars." The Coming of the Anti-Feist Chronicled by Declan McCullagh @ CNET: "By a 16-7 vote, the House Judiciary committee approved an intellectual property bill that had been opposed by Amazon.com, AT&T, Comcast, Google, Yahoo and some Internet service provider associations. The proposal, backed by big database companies such as Reed Elsevier and Thomson, would extend to databases the same kind of protection that copyrighted works such as music, literature and movies currently enjoy." My brow is already starting to sweat. This is not good. At all. Bait and Tackle
Like so much of the past decade's worth of New Economy hype, the theory anchoring the open source movement is partly legitimate insight and partly vaporware...Where the movement is producing interesting things, it is doing so with heavy funding from academia, foundations, or corporations, and it is far from clear why such funding is superior in any way--practically or morally--to funding through market processes. [...] Fellow Corante columnist Arnold Kling responds: "Actually, I like the model of having people pay for software through hardware. But I agree with DeLong that we don't need government to administer the process. I could see, say, Apple, obtaining licenses to bundle thousands of songs with some future iPod. Apple would collect the 'tax' and distribute the revenues. For past creations, the revenues would go to RIAA publishers (boo, hiss), but going forward they would go more directly to people who create, produce, and filter music." Posted Wednesday, January 21, 2004 M$ Wants to Like Mike Backpedalling: "We appreciate that Mike Rowe is a young entrepreneur who came up with a creative domain name. We take our trademark seriously, but maybe a little too seriously in this case."Posted Saturday, January 17, 2004 It Was 20 Years Ago Today Betamax let the VCR play.Posted Tuesday, January 13, 2004 Brief Hiatus I've got a number of pressing projects to attend to, and likely won't be able to return to Copyfight for another few days.Here is where I would visit, were I you. Not to mention here, here, and here, and for good measure, here, here and here. And last but by no means least, here. Okay, I'll stop now. Be back soon. Posted Thursday, January 8, 2004 Copyfight Club JD Lasica comments @ A Copyfighter's Musings on the number of people who admitted to filesharing in the much-discussed Pew phone survey: "The first rule of darknets is not to tell any outsiders about it." And the second rule of darknets is... Kidding aside, Derek's doing a lot of good thinking and linking this week; I suggest you make like JD and check it out. Frank Field is also doing a typically terrific job tracking the action. One post in particular caught my eye: Solum from Atlanta. The reason? I haven't had the time this week to read Professor Solum's notes on what looks to have been an excellent conference on contemporary copyright issues. Frank evidently did, and his nutshell description alone tells me I need to make the time:
This is an important insight; it's what Chilling Effects--and to a significant degree, Copyfight--is all about. Thanks, Frank. Later: Two additional, intriguing responses to Solum's notes:
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:
Later (January 8): Frank Field responds with a post entitled Cory's Odd Assertion. Robert Heverly, meanwhile, muses upon another one:
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:
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.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."(Very insightful) Slashdotter: "The RIAA will lobby for a new law that allows them to get these records. (As the court wisely notes Congress did not contemplate P2P in 1998) If there was a time to mobilize an effective campaign against such a law, now is the time to do it." I've always seen the industry's reaction to file sharing as yet another example of the lack of imagination that led to predictions that cassettes and VCRs would lead to the death of the music and movie industries. Since the real result of those inventions--once the entertainment industry was dragged kicking and screaming into accepting that they weren't going away--was quite the opposite, I've pretty much been waiting for the same thing to occur this time. Today's opinion won't make that happen all by itself, but it's a step in the right direction. Posted Wednesday, December 17, 2003 Quote of the Week (Month? Year?) Courtesy of Cory: "They that can give up general purpose computers for the sake of a little eye candy deserve neither computers nor eye candy."The Importance of Being 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.Edward Felten, on Wendy's response: "I'm not sure why VeriSign thinks that its contract to perform certain administrative functions gives it a license to redesign the Net; but somehow it does. Just another reminder that the Net does need to be governed, if only to keep outfits like VeriSign from fouling it up. Even ICANN looks pretty good at times like this." David Isenberg's straw poll: How do you feel about Sclavos' remark? Posted Tuesday, December 16, 2003 What John Walker Doesn't Get? Edward Felten has a new post responding to Steven Levy's exegesis of John Walker's Digital Imprimatur. Levy by way of Walker in the footsteps of Larry Lessig warns that the Internet is well on its way toward total tech lockdown.Professor Felten argues otherwise. The sky isn't about to fall--and further, it can't: [A] locked-down Net can't really happen, at least not here in the free world. For how can one foot be enslaved while the other is free? To lock down the Internet is to disconnect it from everyday life, from the life where I can send an invitation, or a business memo, or a home movie to anyone at any time, where I can read whatever I like without asking a censor's permission. "I don't get it," responds erstwhile Berkman Fellow Joseph Reagle @ Freedom-to-Tinker: "Yes, in the cypherpunk days we believed the Net might be an anarchist utopia, but we quickly learned otherwise *because* it was connected to meatspace." My own two cents: If the lockdown is seamless, largely invisible, "convenient" for the vast majority of Internet users and (most importantly) profitable, it will be implemented. Meatspace "rules" will follow. Later: Kevin Werbach: [Felten] has a point. The problem, though, is that policy-makers aren't seeing the analogy he makes. The content industries, for example, have successfully focused attention on the threat of digital "piracy," as though no one ever made a mix tape from a CD before the Net came along. Take the 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. I CANN'T 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 technologies...as well as analysis and opinion of the effects of disruption."Sounds to me like the Creative Commons weblog now has a cousin. Seth Fought the Law, and Seth 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?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:
Alt.Compensation.Clearinghouse 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:
The ability to audit is actually required by the Help America Vote Act of 2001...But then the language was changed slightly in a conference committee, and for some reason, though the auditing requirement remains, most systems aren't auditable. Huh? The best explanation for this that I have seen so far says that the new machines are "able" to be audited in the same sense that I am "able" to fly a Boeing 747. I am a sentient being with basic motor skills just like all 747 pilots, so I am "able" to fly a 747. So we are "able" to audit these machines. We just don't know how.Later: Ben Adida: "I am usually a big fan of Cringely's no-nonsense approach to technology problems, but, as I've learned these past few days, his approach to e-voting is too simplistic and thus incorrect." Ignore Susan Crawford ...at your peril.On the broadcast flag mandate: "No court should defer to FCC's decision about its jurisdiction in this regard, particularly in the absence of any explicit statute, and particularly because FCC has said many times over the years that it has no jurisdiction over copyrights. The fact that FCC changed the title of its rule from 'copy protection' to 'content protection' at the very last moment speaks volumes. This is really about copyrights." On the RIAA's litigation campaign: "I'm all for the lawsuits, that's fine, but you can't build a marketplace through litigation." On the much discussed Posner opinion in Assessment Technologies v. WIREDATA [PDF]: "A victory for rationality. And a warning to those who would use copyright claims to convert otherwise freely-available material into private property." More from Professor Crawford here. 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:
Cory himself, in the second post: "If you've ever thought, 'Well, why should I care about P2P? I use my computer in non-infringing ways,' this is why: investors who put money into general-purpose technology...are being put on notice by the labels that such investment will be targeted in the courts." Larry Lessig on the same news: "This Taipei Times article describes a 'warning' from the International Federation of Phonographic Industry to 'existing investors and potential investors to seriously consider their investments in unauthorized peer-to-peer network operators.' Nice of them to help." Compulsory Licensing: Where's the Beef? Edward Felten asks how to measure "consumption" under a digital media compulsory licensing scheme; Ernest Miller responds, suggesting that the devilishness of the details depends on the kind of counting you have in mind.Later: Serguei Osokine @ Freedom-to-Tinker: If the question is: "Is there a bulletproof technical method of gathering the statistics and dividing the money?"--the answer is most definitely: "no."Later #2: Frank Field: "I have to admit that I fall into the Felten camp on this one; monitoring network traffic to manage P2P exchanges just reeks of geometric complexity, particularly in the face of a desire to circumvent/manipulate the system." Later #3: Aaron Swartz, also @ Freedom-to-Tinker: There are problems, but I don't think this is one of them.Later #4: Adam Thomas, responding @ the Importance of...to Ernest Miller's contention that people will demand a filtering mechanism for an alternative compensation scheme because they won't want to support porn: "The notion that tax dollars will be 'subsidizing music that glorifies cop-killing' in an ACS is a misnomer; it is no more accurate than the position that one's cable bill subsidizes gangsta rap." Posted Wednesday, December 10, 2003 E-Voting: Why the Silence? So asks Siva Vaidhyanthan, in a new piece decrying the lack of Big Media attention to the current e-voting crisis:After being sufficiently embarrassed (and realizing that someone had posted the memos to KaZaa), Diebold opted not to pursue legal action. But the damage had been done. Dozens of critics had their Web sites go dark.Sad. True. Siva writes that "only two Democrats have confronted this issue." Here's another slim ray of hope. Later (December 11): Tom Poe, who opposes proprietary software for e-voting, writes an epitaph for democracy in Nevada. Interoperability, Multiple Platforms ...Microsoft?Later (December 11): Two pieces on the above-referenced Content Reference Forum (CRF): Scheme Hatched To Counter Digital Rights Balkanization: "EFF attorney Jason Schultz explained that the CRF is proposing a DRM to cover all possible uses of digital media. To do that, it needs to write software code to consider every single circumstance that could arise. 'It's very tough to write software code that recognizes things like free speech or criticism or parody,' he told TechNewsWorld. 'Unless their specification allows for those kinds of activities, it's flawed.'"Later #2: bIPlog's Mary Hodder and New Scientist with other angles on the announcement. Alcohol, Tobacco, Firearms, Explosives ...digital music?Later: A Pho-ster's reaction: "[Maybe] they got [Buckles] on board so they can legally shoot themselves in the other foot, or hopefully the head." Later #2: Jason Schultz: "This is just another example of the RIAA's ongoing plan to treat American consumers like criminals instead of customers. If they really wanted to solve their file-sharing problems, the RIAA should have considered hiring someone with a business plan rather than a baton and a bulletproof vest." It's Called Competition
It's Called Fair Use Elizabeth "have-you-blogrolled-her-yet?" Rader, responding to Derek Slater's report that even in the absence of a cease-and-desist letter from Diebold, John Hopkins University is asking its students to refrain from posting the company's infamous email archive (emphasis, mine):
Edward Felten, meanwhile, parses a Washington Post article on Diebold et al. announcing that they will respond to public criticism by...discussing it openly: [Although] they "have yet to put forward any proposals," they hope to have some conversations with people. Amusingly, the chairman of the ITAA calls this "an inflection point in the history of voting in this country."Finally, Jason "have-you-blogrolled-him-yet?" Schultz points to the I, Cringely column on Diebold now making the rounds. Quoth Cringley: If EVERY OTHER kind of machine you make includes an auditable paper trail, wouldn't it seem logical to include such a capability in the voting machines, too? Given that what you are doing is adapting existing technology to a new purpose, wouldn't it be logical to carry over to voting machines this capability that is so important in every other kind of transaction device? Rageboy Does 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 Sigh... Music Industry Legal Targets Include Retiree Who Doesn't Own Computer [AP]:Among the RIAA's recent targets is retiree Ernest Brenot, 79, of Ridgefield, Wash., who wrote in a handwritten note to a federal judge that he does not own a computer nor can he operate one. [...] "There's a mistake in this case," [his wife] Dorothy Brenot said. "We're innocent in all of this, but I don't know how we're going to prove it." Grimmelmann "Bloody Brilliant" Cory waxes rhapsodic, and rightly so, about James Grimmelmann's latest feature over at LawMeme: The State of Play: Free As in Gaming?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).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 Late ...but nevertheless sincere: welcome back, Derek, Frank and Ernie. You were missed.Johansen Takes the Stand for Fair Use ...again, today.Joseph Reagle notes that "the Norwegian legal system has shown some sanity, and they don't have a DMCA." What they do have is criminal code section 145.2, which outlaws bypassing technological controls to access data one is not entitled to access. According to IP Justice, this case marks the first time that the law has been used to prosecute a person for accessing his own property. Posted Monday, December 1, 2003 OPG v. Diebold--What's Up? The scoop:Voting machine company Diebold Systems, Inc., agreed today in federal court not to sue or send any further legal threats to anyone who publishes their corporate email archive, which indicates flaws in company's voting machines and problems with certifying the systems for actual elections. Diebold also agreed to send retractions of its earlier legal threats to the Internet Service Providers (ISPs) who received them.Later #2: Berkman Center Executive Director John Palfrey, to the Harvard Crimson, "[Diebold's] claims were not going to prevail in court." Wendy Seltzer, in the same article, "We'd still like to have a judge saying that a posting like this is 'fair use.'" Later #3: AP: "In a major victory for free speech enthusiasts on the Internet, Diebold Inc. has agreed not to sue voting rights advocates who publish leaked documents about the alleged security breaches of electronic voting. [...] Diebold did not disclose specifics on why it had dropped its legal case, but the decision is a major reversal of the company's previous strategy." Later #4 (Dec. 2): Slashdotted: "Fox News reports that 'Diebold said it would not sue dozens of students, computer scientists and Internet service providers who had received cease-and-desist letters from the company from August to October,' which is great for academia land, but one should still ponder using Diebold on any level...." Later #5: Krugman-ized: "Why isn't this front-page news? In October, a British newspaper, The Independent, ran a hair-raising investigative report on U.S. touch-screen voting. But while the mainstream press has reported the basics, the Diebold affair has been treated as a technology or business story — not as a potential political scandal." Later #6: Wired: "Diebold spokesman David Bear said no one should interpret the move as a sign that the DMCA did not apply in this case. 'We've simply chosen not to pursue copyright infringement in this matter,' he said." Later #7: ZDNet: "[EFF] pledged to seek a court order spelling out that publishing or linking to the Diebold emails doesn't amount to copyright infringement, as well as monetary damages under the DMCA on grounds of misrepresentation. [...] 'We've been saying from the beginning that Diebold shouldn't be able to use copyright law to stop discussion of technologies that are at the heart of our democracy, and Diebold has finally acknowledged that by dropping its threats of suit,' Seltzer said. 'And we plan to drive that point home to Diebold and anyone else who might be tempted to misuse copyright similarly.'" Right About Now ...the telephone conference in OPG v. Diebold is taking place.Food for thought while we await news of the outcome:
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): 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. Snippets: Paul:
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. 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.Amen. 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 Linkable/Thinkable A number of my favorite weblogs have posts I wish I could linger over today. A quick tour:
Unfortunately, discovering the inner workings of your own property and sharing what you've learned with your friends is not the legally straightforward activity it should be. For Americans at least, the Digital Millennium Copyright Act (DMCA) is a troubling reality. Posted Sunday, November 23, 2003 Why the FTAA 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] byDiebold's actions abuse the Digital Millennium Copyright Act, using copyright to suppress speech rather than fulfill the Constitution's purpose for copyright, to "promote progress." These abuses raise a fundamental conflict with the First Amendment, diminishing the Internet's tremendous value as a most free medium of expression. Diebold's actions are representative of a growing body of abuses through which large and powerful parties unfairly intimidate ISPs to remove information those parties do not like. In other examples, the claims are not really about copyright, but about not showing the parties in a negative light, or not allowing consumers to compare prices, or quieting religious critics. Powerful parties should not be permitted to misuse copyright as a tool for limiting bad press and barring access to legitimate consumer information.Fantastic. 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.) Shelley Requires Open Source Code for E- Voting Fine-print find in California Secretary of State KevinWonder 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).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. 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.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.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. Congratulations ...to Frank Field, who has been awarded the First ESD Educational Excellence Award for his "excellence in classroom teaching, curriculum design and development, academic administration, and providing an effective and nurturing environment."A student of Frank's, from the article on his award: "In a world of seekers of power, money, and recognition, one can't help but wonder what allows this creature, 'furd,' to sit unscathed in the middle of it all. What keeps him reading entrance essays in his office far past when other faculty members on the floor have gone home? What brings him again into his office first thing in the morning before the rest of us arrive? Unwavering, this creature holds to the best he knows of truth, continuing to give so much regardless of whether the stands are full or the fans forgot there was a game at all." Terrific. Frank is a role model of mine for using "blogspace" in just this way: to nurture learning. Perhaps next time, he'll get an award for teaching outside of the classroom as well. Posted Monday, November 17, 2003 A Picture Worth a Thousand Words Here, the 374 that inspired it. More (way), from Doc Searls @ Doc's. OPG v. Diebold--No Decision 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.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.
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:
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. 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." 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.
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 Freadom 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): 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):
Later (Nov. 7): This is not to be missed. It's an open letter by my fellow Corante weblog columnist Arnold Kling to the MPAA's Jack Valenti, responding to the broadcast flag decision. Brother Kling, an economics expert, takes great exception to Valenti's assertion that the broadcast flag is a win for consumers, or about the preservation of "free TV." Hence he proposes the "Jack Valenti Spectrum Re-allocation."
Posted Tuesday, November 4, 2003 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 order...to stop electronic voting machine manufacturer Diebold Systems, Inc., from issuing specious legal threats. EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are providing legal representation in this important case to prevent abusive copyright claims from silencing public debate about voting, the very foundation of our democratic process. 'Diebold's blanket cease-and-desist notices are a blatant abuse of copyright law,' said EFF Staff Attorney Wendy Seltzer. 'Publication of the Diebold documents is clear fair use because of their importance to the public debate over the accuracy of electronic voting machines.'" 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.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 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: 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: 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 Figuratively.Posted Thursday, October 23, 2003 This Patent Kicks Ass Literally.Swartz on Diebold: Get Your Memos Here Aaron Swartz, on the Diebold copyright claims that have Swarthmore students, and many others, up-in-arms: 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 MPAA, to a group of Penn State college kids: "I think we're in a great state of crisis because we believe in this country that the Internet is so all-powerful--and it is--that there's no limit to what you can do. And there is a limit." Ah--college life. It's all about learning when to close the door to new possibilities. Posted Wednesday, October 22, 2003 MPAA to Kids: Stop Thinking So 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:
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:
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:
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:
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 Must-read ...of the weekend: John Walker's The Digital Imprimatur: How Big Brother and Big Media Can Put the Internet Genie Back in the Bottle.What's the Deal? Mary Hodder today asks precisely the right question about the proposed broadcast flag mandate--in short, What's the deal, here? Writes Mary:
EFF's Fred von Lohmann has said about digital rights management (DRM) that it's used by corporations to take away your fair-use rights--so that those rights can then be sold back to you. Nice deal, eh? In the case of the broadcast flag mandate, it's even worse. We'll be paying more specifically in order to get less. And for what? Cory puts it best:
Ah: so we'll all be paying more for less because Hollywood is scared. And hungry. Okay, folks. I'm off the soapbox. But do take a minute or two to visit DigitalConsumer.org or EFF and tell the FCC what you make out of all of this. I've said it before and I'll say it again: it remains possible to make a difference. Whether or not the FCC does the right thing this time, we've got to get additional support on Capitol Hill for the battle against these kinds of tech mandates. 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:
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:
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'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 Blog.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:
Ernie's response? "Any rule that mandates DRM is giving too much control to the entertainment industry." Dan Gillmor echoes the sentiment, adding a call to action:
Dan's right. It remains important that we let our representatives, and the FCC, know what we think. Whether or not the FCC makes the right decision in this instance, it is critical that we garner additional support on Capitol Hill for the ongoing battle against this kind of policymaking. Otherwise, we'll end up here again. The Importance Of... Ernie Miller, the man behind many a provocative, thoughtful, instructive and witty post @ LawMeme, has a brand new weblog.Posted Tuesday, October 14, 2003 Oops, They Did it Again EFF (hyperlinks, mine):
Gird yourselves, mateys: pirate/plank-walking headlines on the horizon. Later: More @ the LA Times [reg. req.]. Copyright + Civil Liberties No Zero-Sum Equation Via Dave Farber's IP list a few weeks ago came a Denver Post op-ed by no other than Walter Cronkite. The piece is about the USA Patriot Act--but oddly enough, reads as the rhetorical twin to Daniel Akst's lately-discussed NYT piece on the P2P wars. 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.Put through an imaginary Akst-o-meter, it would read: The recording industry's answer to the growing concerns of many - including some recording artists and labels - about the powers granted copyright holders under the Digital Millennium Copyright Act was to ask for even stronger measures, including the use of "nonjudicial subpoenas." That means that any copyright holder can write his own subpoenas and get a court clerk's approval to conduct a search - no judges needed. An IP list member responded to the Cronkite piece by paraphrasing a quote by Ben Franklin: "People who are willing to trade security for freedom soon find out that they have neither." He went on to argue that the "secret of course is to change the rules (i.e., the technology) so that we can have more security AND retain our liberty." Most of us would agree, arguing for the clear necessity of ensuring security and retaining our civil liberties. Why is it, then, that when one argues for copyright protection and to retain our civil liberties, one rarely wins a warm reception? 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:
The MPAA's "fix"? The broadcast flag mandate--which Seth warns is only one of three promised MPAA initiatives (PDF) to expand technology regulations beyond the scope of the DMCA. So what can we do about this? Seth encourages readers to take advantage of the EFF's current broadcast flag action alert to voice their objections to the mandate. He also urges fellow technologists to write their own letters to the FCC, providing arguments from a technologist's perspective about why the mandate isn't the right direction for technology policy. I also recommend a reading, or re-reading, of Senator Sam Brownback's (R-KS) statement introducing the Consumer, Schools, and Libraries Digital Rights Management Awareness Act of 2003 (PDF). Much of the press attention has focused on provisions to amend the DMCA's rules on subpoenas, but Brownback tackles the broadcast flag mandate as well. States Brownback (emphasis, mine):
Live in Kansas? Now would be a good time to let Senator Brownback know you support efforts like this one to nip dangerous technology policy trends in the bud. Posted Friday, October 10, 2003 Oh 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:
Later #8: Seth F.: "RESEARCH PAPERS CAN COUNT UNDER THE DMCA!" Posted Wednesday, October 8, 2003 Sigh 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:
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:
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 Classic This interaction between Alex Macgillivray, Charlie Nesson and Jonathan Zittrain at this summer's Internet Law Program--exploring Charlie's afore-mentioned proposal for combating copyright infringement with "hacktivism-in-reverse":
Let the Music Pay 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:
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."
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:
The idea in a nutshell: why not use what amounts to targeted denial-of-service attacks to make it more difficult for people to share copyrighted music files--providing recording artists with effective self-help while leaving peer-to-peer networks (and the Internet's current architecture) intact? I find the concept compelling--in large part because it seems to work with the Internet, rather than against it. It's the lazy man's approach to the problem, with the incredibly powerful forces of convenience and inertia behind it. Yet instead we have the constant push for laws ridiculously out of step with current copynorms, laws that seek to mandate harmful tech changes, and politically challenging--some might say unfeasible--"solutions" that offend each and every interest group at the table. Charlie has advanced this notion a few times before; most recently, at the Berkman Center's Internet Law Program at Stanford. So far, the idea has yet to take purchase--that is, it appears that few have explored it in depth. I wonder why. What are the objections? Or, as Charlie asks, who is damaged? If you have the answer, or any part of it, I invite you to write and let me--and Charlie--know what it is. [Obligatory disclaimer: I speak for myself, here, and not for the Berkman Center, EFF or Corante. So if you want to enter a dialogue, be aware that you're entering it with me.] Update: LawMeme's Ernest Miller responds:
Posted Thursday, September 25, 2003 Let the Music Pay II I received an email from Scott Matthews last night; he says he's eager to push this discussion into more productive space. To my view, Scott spent much of his Salon piece attacking a straw man--and unfortunately, pinning EFF's name to its forehead. But attacking a straw man does have the advantage of letting more people know what it is none of us want. And as Derek has been writing, we could all use a little more clarity. Especially if, underneath it all, we're actually working for the same thing: a reasonable and fair-minded alternative to the current situation--which is anything but rational and fair. Clarification: the project I allude to below isn't a weblog discussion (though it will inevitably involve them!). When Subpoena-Bots Attack US Senator Sam Brownback (R-Kan.) [hyperlinks, mine]: "This revelation challenges the testimony of the RIAA at the hearing, and shows that the subpoena process includes no due process for ISP subscribers' accused of digital piracy. Due process, if it existed within the DMCA subpoena process, would provide accused pirates identified through the subpoena with the critical opportunity to rebut accusations of piracy and prevent the release of their identifying information to accusers." Not long ago our Professor Felten made an important point about the DMCA subpoena process--specifically, its enormous potential for abuse. Said Ed:
Posted Wednesday, September 24, 2003 Happy (Belated) Birthday ..to Packets, a brand new cyberlaw newsletter by the good people @ Stanford's Center for Internet & Society. Born only the day before yesterday, it's already looking pretty smart.Let the Music Pay If you've got any (copy)fight in you at all, you've been following the debate over the past 2-3 weeks about how to resolve the P2P wars peacably--that is,
Or, as a subset of the above questions, you may have been asking yourself
The first set of questions is about what would make a good solution to the current situation good; that is, defining our end goal and what it is we hope to preserve and protect. No solution will be perfect, so this is about prioritization and values. The second set is about strategy. How do we get from here to there? I've had thoughts brewing on this for some time. While I cannot yet share details, I am working on something that I hope will serve to 1.) further the collective problem solving and 2.) help clarify various positions within the debate. In the meantime, I'm tuning in to the fruitful conversations happening @ the Berkman Center, LawMeme, bIPlog, politech, Freedom-to-Tinker, A Copyfighter's Musings and elsewhere--as well as the 'round-the-clock pulse-taker that is FurdLog. I hope you are, too. Posted Saturday, September 20, 2003 Afraid to Go Back in the Air? You Should Be. After issuing a number of denials, JetBlue finally came "clean" about handing over the personal information of over one million of its customers to a Pentagon contractor. Its reason for doing so: to help the contractor test a new passenger-profiling system to identify potential terrorists. According to this NYT piece, the information was turned over in violation of JetBlue's own privacy policies, and then was used "to identify the passengers' Social Security numbers, financial histories and occupations."To privacy advocates, this looks like a preview of air travel under CAPPS II, a new system that the Travel Security Administration (TSA) aims to implement. Not surprisingly, denials abound. Asked whether JetBlue was roadtesting CAPPS II, TSA spokesman Nico Melendez told a Mercury News reporter, "I really don't see how there could be any kind of a correlation." But whether or not JetBlue was using its passengers as unwitting guinea pigs for CAPPS II, or for some other passenger-profiling system, is (well) beside the point. The fact remains that such a system is offically in the works. And if it is implemented, the future for privacy and civil liberties is far from pretty. 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.
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?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....and especially useful for understanding the technical, rather than ethical, reasons why VeriSign's behavior is...wildly...inappropriate: Making E-Mail Bounce or Disappear:...Broadly speaking, e-mail software is very likely to be confused by VeriSign's decision, since much of it was written with the explicit assumption that the nonexistence of a site could be detected directly in the DNS. This assumption is no longer valid.Bonus: Alex Macgillivray @ Bricoleur: "There are many reasons why this is really bad news. Question is, is there something that the law can do about it?" Bonus #2: Ben Edelman @ Dave Farber's IP list: "Over the past three months, taken as a whole, Verisign had traffic rank 1,559. But today its traffic rank is 19 -- meaning, at least among Alexa users (who are generally representative of web users), the verisign.com domain has suddenly joined the top 20 sites, measured by page views." I'm Not Dead ...not yet, anyway.Rather, the very much less dramatic Really Busy. More to come later on today. Promise. Posted Thursday, September 11, 2003 Hear, 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 Settled? Rumor is afoot that the RIAA has settled with 12-year old Brianna.Later: The Inquirer staff wrote last month that the RIAA did not intend to target de minimus file sharers, "hoiking your average 12-year old kid into court...and stripping her or his piggy bank of his or her savings." Now that is has done so, however, the piggy bank has been emptied--many times over. According to the AP, the settlement was for $2000. Later #2: Says Wendy (via email): "If this is a 'solution' for Brianna, it's no solution for fans, who want a way to continue to use P2P legitimately--not to mention no solution for the artists, who won't see a penny of the $2000 Brianna's parents paid." Later #3: Ira Rothken responds to the offer of shamnesty--with a lawsuit [PDF]: "This lawsuit...seeks a remedy to stop the RIAA from engaging in unlawful, misleading, and fraudulent business practices including advertising an 'Amnesty Program' to members of the general public that does not provide real amnesty from being sued and a 'Clean Slate Program' that does not provide a real 'clean slate.'" 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): Ouch. 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 Copywrongs.org. The plan is to host "personal and shared blogs for all recipients of file sharing-related subpoenas and other enforcement actions." Posted Wednesday, July 30, 2003 Feds May Ask, But Colorado Library Won't Tell
Apropos of which, here's EFF on ISPs and "accidental" ISPs (emphasis & hyperlink, mine): "The Digital Millennium Copyright Act gives people who claim to own copyrights tremendous power to invade the privacy of Internet users. With only a clerk's stamp on a form, almost anyone can demand that an Internet service provider reveal its users' personal information--if the ISP has that information." Apropos of which #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
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 ...is when posting here will become less frequent, as I'm heading into Serious Transition territory. Things will pick up again in 4-5 weeks, after I've settled in @ EFF. 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 Subpoenadefense.org: "Even if you did have copyrighted material on your computer, you might have a lawful right of fair use." Update (July 25): EFF: "Concerned that information about your file-sharing username may have been subpoenaed by the RIAA? Check here to see if your username is on one the subpoenas filed with the DC Circuit Court." Update #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...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."Nice Dan Gillmor, on the MPAA's RespectCopyrights.org: "The point of copyright is not solely to pay creators. It's equally designed to get ideas and inventions--arts and sciences and scholarship--first into the the public sphere, and ultimately into the public domain, where other creators build on them to make new art, new science, new scholarship."Update (July 24): Studios Demanding Too Much in Their Copyright Campaign. Posted Tuesday, July 22, 2003 Doc Searls on the Copyfight Doc, over @ Linux Journal:Bonus: Doc again, this time in a fireside chat with Chris Lydon: "I suffer the delusion that the world really needs to hear what I have to say." 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. Snippet: It was also an accurate ruling because, under either a natural rights or property theory, copyright deserves infinite protection. My sides hurt. Take an aspirin (or two), then head on over to LawMeme to read the whole thing. GrokLaw 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.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).
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):
Berkman Affiliate Alex Macgillivray: "The bill has a number of provisions aimed at P2P file-sharing. [...] I'd like to focus on two...:
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? Posted Thursday, July 17, 2003 Slam-Dunk 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:
...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?" 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?: 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. Frank-o-Phile 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 Backblog 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:
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." Prayer There are many being said for Ann Craig today. I add mine. Blogaritaville ...is 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:
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?" Second, a series of nicely articulated observations on the day's sessions: Making Unthinkable Lawsuits Thinkable 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:
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 appe |