December 31, 2002
MS Will Give the Indian Government Windows Source Code

Microsoft has agreed to share the Windows source code in a proposal to the Indian ministry of information technology, which the president of MS India confirmed. The article speculates that this comes at a time when governments in India are considering Linux because the source code is free and downloadable from the Internet. The end of the article explains that open source is preferred because it allows for innovation of the code from a broad base of users, but that proprietary interests insist that open source can't work in a commercial environment.

There are a couple of recent papers on Open Source:
Yochai Benkler, an NYU Law Professor, has published "Coase's Penguin, or, Linux and The Nature of the Firm (PDF)" explaining "commons-based peer production" for open source software and how the "information opportunity cost" for closed source development is too great a burden for an innovative society to carry, if the "object of production is information or culture". He takes the title from Ronald Coase, author of "The Nature of the Firm" and the penguin symbol used for Linux.

Eric von Hippel at the MIT Sloan School of Management has another interesting paper "Horizontal innovation networks - by and for users" looking at the economic advantages of user innovation networks in open source development.

Posted by Mary Hodder at 10:36 AM | Permalink | Comments (0)
December 30, 2002
Shattering Lindows?

Is Lindows an illegal copycat brand or should Microsoft's trademark be taken away? Will the judge let MS keep passing the open WindowsTM?

This particular trademark dispute offers an interesting legal argument, about the subtle yet meaningful distinctions between generic vs. arbitrary or fanciful trademarked terms.

You gotta hand it to Microsoft, though, and their knack for securing trademarks.

Posted by Maggie Law at 01:09 PM | Permalink | Comments (0)
December 27, 2002
EU Member States Fail to Adopt EUCD by December 2002 Deadline

The deadline has passed for EU member states to adopt the latest copyright directive (EUCD), passed a year ago April by the EU. The EUCD is their answer to the DMCA. Only two countries passed the EUCD: Greece and Denmark. Denmark is also where KaZaa users were recently invoiced for up to $14k each for pirating copyrighted entertainment and software and where last spring KaZaa was ruled to be legal.

Apparently, there have been so many thoughtful replies to the directive by ISP's, consumers and groups such as the UK Campaign for Digital Rights (UKCRD) as well as various companies, that the review process is expected to take several more months. In particular, the ISP's have lobbied against the directive because they believe it will infringe on consumer's rights, and the UKCRD thinks it will stop cryptographic research and prevent fair use of legitimately purchased copyrighted works. In contrast, the Business Software Alliance believes they are already suffering heavily from the pirating of copyrighted works over the internet and therefore need the EUCD protection.

Posted by Mary Hodder at 04:34 PM | Permalink | Comments (1)
December 25, 2002
Elcomsoft Transcripts

Here are a few transcripts from the Elcomsoft trial.

Posted by Mary Hodder at 09:13 AM | Permalink | Comments (1)
December 24, 2002
"What Do Intellectual Property Owners Want?"

Andy Oram writes about the new censorship, how DRM should be developed, and how it will fail because developers want to take neither the time for an open review process with other researchers, nor are they cooperative toward DRM as the security profession tends to attract people that are averse to using systems that protect people's rights.

Oram says "perfect control will fail. That's the first grounds for optimism.... The second is that people will get bored of controlled content and will turn to open systems that are intrinsically more exciting and engrossing." See his article "Stop the Copying and Start a Media Revolution." And, "third is that the public fights back. The ElcomSoft case shows that the public can understand the issues and stand up for its rights when given a voice."

Posted by Mary Hodder at 12:36 AM | Permalink | Comments (0)
December 23, 2002
MP3.COM Changes Artist's Terms of Service 1/15/03

Vivendi is changing the terms for artists at The new rules, as reviewed by Azoz and MacWizards Music ( doesn't appear to allow the unregistered to visit the section of the site showing these terms), go into effect January 15, 2003 changing the way music is priced, shared and the artist's program works. The new terms are significantly less favorable to independent artists wanting to share their work with the public for free or through netCD's, which will disappear entirely in a couple of weeks.

Posted by Mary Hodder at 11:34 PM | Permalink | Comments (0)
MacWizard's Analysis of Music Sales Refutes RIAA Arguments on Piracy

George Ziemann, owner of Azoz and MacWizards Music, has analyzed RIAA statistics on music sales, concluding the record industry released 25% fewer new works over the past two years compared to previous years (PDF: 38,900 in 1999, 27,000 each in 2000 and 2001), while sales have only dropped 6% over the same two years.

He points out that sales only started declining after Napster shut down, during the past two year's recession, when the average CD price was pushed above $14. If he is correct, the Music Industry released less new works, are more profitable per work (PDF: Dollars per released work, for 1999: $376,632.39, 2000: $533,481.48 and 2001: $507,407.41) and made more per individual CD sale. It appears from the RIAA's own spreadsheet (pdf) that despite the reduced product, they made money in 2001 on CD's, and lost on dying categories such as cassettes, CD singles (does anyone pay $4.50 for a single these days?), LP's and music videos.

Also, the RIAA stopped reporting on sales of Singles starting in 2001 (PDF). But Single sales are often held up as the big loss for record companies in terms of piracy losses, at around $50 million in 2000. He points out that the losses they claim at $4 billion from piracy can't just be made up from Singles and in fact that $4 billion number is very difficult to pin down otherwise.

Posted by Mary Hodder at 01:35 PM | Permalink | Comments (0)
December 20, 2002
Don't Waste Culture. Recycle!
A Brief Primer on Art and Copyright

Artist Dave Muller mixes Peanuts cartoons with art gallery advertisements to create commentaries on the art world. DJ Spooky recently mixed hip hop and electronic music to DW Griffith's silent film "Birth of a Nation" to create "Rebirth of a Nation." The website,, sells CDs of found and sampled sound, including entire albums made of Beck samples. There is even an exhibition of Illegal Art showcasing appropriation art, video and music that have met with legal challenges.

Posted by Lisa Wang at 12:31 PM | Permalink | Comments (2)
Can the Jukebox Be Heavenly and Profitable?

In the aftermath of Napster's now legendary demise, file sharing on the Internet continues to thrive. The music industry (major record labels, as represented by professional organizations such as the Recording Industry Association of America and its affiliate IFPI), has reacted swiftly and litigiously, digging into deep pockets to protect their stake in the shrink-wrapped CD unit market model. So far, they've been remarkably successful, at least on the legal front, thanks largely to a body of copyright protection laws that were drafted in and for an earlier technological era, along with more recently passed legislation -- often controversially applied -- designed to address modern technologies (such as the 1998 Digital Millennium Copyright Act).

Posted by Maggie Law at 12:18 PM | Permalink | Comments (1)
Trade-Related Aspects of Intellectual Property Rights (TRIPS)

Intellectual Property is fundamental to western notions of creativity and prosperity, and few would argue with its importance in the economics of the developed world. For some industries like pharmaceuticals, for example, IP protection is essential. But hotly debated is how well the IP system works in poor countries, where millions of people are dying of life-threatening diseases such as AIDS because they cannot afford the latest patented drugs.

Posted by Ting Shi at 12:14 PM | Permalink | Comments (1)
TCPA, an Offering You Can't Refuse

Hit the power button on your computer, and once it's off, what have you got? An unwieldy, expensive paperweight. Now imagine that each file on your computer is connected to a unique power button of its own. Hit the file's power button and the file turns off. It still exists, you just can't use it. Turn off a single MP3 file, and you can't listen to it. Turn off the MP3 player program, and you can't listen to any MP3s. Every file switched off would nudge your computer infinitesimally closer to its powered off, paperweight state.

Now imagine that someone else had his finger on the power buttons. As a user, you would never want this 'feature', but the very companies that spent the last decade putting computers into millions of homes and businesses are working to implement just such a scheme. The initiative is called the Trusted Computing Platform Alliance or TCPA.

Posted by Daniel C. Silverstein at 12:04 PM | Permalink | Comments (2)
December 19, 2002
ISAT Report Recommends Developing Technologies to Protect Privacy

The Pentagon released a study done at the end of 2001, before the TIA was even a glimmer in John Poindexter's eye, called "Security with Privacy" (PDF), by the Information Sciences and Technologies Study Group. It recommends DARPA and other government agencies develop technologies to protect against the "misuse of data-mining systems similar to those now being considered by the government to track civilian activities electronically in the United States and abroad."

EPIC filed a Freedom of Information Act (PDF) request to get the study, which looked at technologies, not policy or the TIA, and concludes that "...technologies can be adapted to permit surveillance while minimizing exposure of individual information.... Perhaps the strongest protection against abuse of information systems is Strong Audit mechanisms. We need to watch the watchers."

Posted by Mary Hodder at 08:52 AM | Permalink | Comments (1)
December 17, 2002
IE has 95% of the Market

On no. This isn't a monopoly. And yet, according to, a Danish company whose website says it is "the number one provider of real-time web site analytics" and maker of log file analysis tools, Internet Explorer has 95% of the worldwide market.

The Register has reported on difficulties experienced by Linux users in viewing many webpages, as well as alternative web browsers such as Mozilla and Opera. Designers respond to the dominance of IE, by designing for IE, which reinforces IE's dominance. That article even has a lengthy list of "sinners", or look at the more comprehensive Banks 'n' Browsers for a list of difficult banking websites. Interestingly, on the banking list, many US banks and Credit Unions including the Pentagon Federal Credit Union, don't support Netscape, as well as the lesser know browsers.

Posted by Mary Hodder at 06:32 PM | Permalink | Comments (0)
Elcomsoft Not Guilty

The jury in the DOJ v. Elcomsoft case acquitted the eBook decryption maker on all counts of circumventing the DMCA today.

"The DMCA has clear criminal penalties that can and should be imposed in cases of direct or attempted theft of software and other digital content we would urge prosecutors to continue aggressively pursuing alleged violations of the law," said in a statement from the Business Software Alliance, which seems to mix up piracy with decryption. If the software is lawfully purchased, decrypting it so that it will read back a book for a blind person doesn't seem to be theft, or otherwise illegal according to the Jury.

Posted by Mary Hodder at 06:11 PM | Permalink | Comments (0)
December 12, 2002
A Nice Summary of Lessons Learned

Tim O'Reilly, a gentleman if ever there was one in the tech/Hollywood debate, has published something of a manifesto on entitled Piracy is Progressive Taxation, and Other Thoughts on the Evolution of Online Distribution [Dec. 11, 2002]. He discusses seven "lessons" learned in a lifetime of publishing books on technology, and how they might apply to the world of all media, including movies and music. A few interesting lessons:

"File sharing networks don't threaten book, music, or film publishing. They threaten existing publishers."

"Obscurity is a far greater threat to authors and creative artists than piracy."

"Customers want to do the right thing, if they can."

Posted by John Battelle at 02:06 PM | Permalink | Comments (1)
Good Copyright Resource

Just read through this "The Free Expression Project" report.
This is just out, and covers much of the ground we covered in our class this semester. It's a good primer, I wish we had it in August!

Posted by John Battelle at 01:25 PM | Permalink | Comments (0)
December 10, 2002
Dow Jones Can Be Sued in Australia for Internet Publishing

The BBC reports Australia's high court ruled (decision) that Dow Jones, publisher of Barrons in the U.S., can be sued in Victoria by mining magnate Joseph Gutnick for defamation of character. "It is thought to be the first such decision in the high court of any country to consider the question of jurisdiction and the internet."

Specifically, the Australian decision allows for publishers from any location to be sued in Australia, if the publication is available there, even if the plaintiff is not a resident of Australia. Although the court said that, "In all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person resorts." That seems to mean Internet publishing will include investigating local law, wherever story subjects reside or do business, just because there is Internet access there. and Australian IT, as well as LawMeme comment on the story.

Posted by Mary Hodder at 06:34 AM | Permalink | Comments (0)
December 07, 2002
Viagra Patent Challenged In China

Maybe this case shows how China is making progress in acknowledging intellectual property rights. Twelve Chinese drug companies are asking the government to nullify Pfizer Inc.'s exclusive rights to the little blue pill of Viagra. They claim that the anti-impotence drug patent is invalid because it doesn't meet the Chinese legal requirements of being a truly new invention. The drug, which is widely known as "Wei Ge", or "mighty brother", is very popular in the Chinese market. Some have argued that China is the worst nightmare for patent-holders worldwide. However, for the first time, the Chinese copycats are trying to revoke a patent of a popular drug through the legal process instead of jumping right in and producing imitation medicines. The outcome of this case will be significant, not only because of the millions of dollars of sales involved, but also because it'll indicate China's reaction towards this type of dispute as a new World Trade Organization member.

Posted by Feiwen Rong at 12:43 PM | Permalink | Comments (1)
December 05, 2002
Berkeley Digital Rights Management Conference

The Digital Rights Management Conference will be held Thursday, February 27- Saturday, March 1, 2003 at UC Berkeley. It is sponsored by Boalt Hall School of Law and the School of Information Management and Systems. You can register today.

Digital Rights Management (DRM) technologies allow copyright holders to restrict access to digital content (DVD films, CDs, software, television programs, etc). Some view DRM as the only solution to intellectual property theft. Others fear that poorly designed DRM systems will effectively destroy fair use and privacy. Is DRM cool or scary or just imperfect? Decide for yourself at the conference.

Posted by Lisa Wang at 11:19 PM | Permalink | Comments (0)

We have blogged about how retailers like Wal-Mart forced companies like to delete unauthorized sales prices information before the sales season officially kicked off, citing violation of Digital Millennium Copyright Act (DMCA). Without wasting time, in an effort to go after the individual who leaked sales information to those websites, Wal-Mart, but not only Wal-Mart, sent out a special DMCA subpoena to asking for the identity of the person who submitted information online. Not until a white-knight law-clinic at UC Berkeley stepped in to represent to fight the subpoena did the mighty retailer back down withdrawing the subpoena. This highlights the controversial part of the DMCA law, which allows a copyright holder to ask for "identification of an alleged infringer" without filing a lawsuit first, putting ISPs in a disadvantageous position of liability. In a similar case, RIAA v. Verizon, attorneys are sparring in federal court in Washington, D.C. over disclosure of the identity of an alleged peer-to-peer pirate.

Posted by Feiwen Rong at 08:48 PM | Permalink | Comments (0)
December 04, 2002
ElcomSoft Trial Coverage

The ElcomSoft eBook encryption trial is under way in federal court in San Jose, CA, and several media outlets apparently will be providing regular coverage. They include the San Jose Mercury News, the San Francisco Chronicle and Wired News.

Hopefully some IP-related Weblogs will be posting first-person commentary by people at the trial, similar to what GrepLaw did with the observations of Berkman Fellow Blythe Holden at the Grokster/Morpheus case in Los Angeles. If anyone knows of coverage like this, please post a comment with the details.

Posted by Paul Grabowicz at 06:23 PM | Permalink | Comments (2)
...Yes, It's You!

In what is becoming a growing trend in which copyright holders go after individual users directly, the AntiPiratGruppen, a Copenhagen-based anti-piracy organization funded by Danish entertainment companies, sent bills and a settlement offer to alleged copyright offenders whose names the organization got by court order.

This is similar to the RIAA vs Verizon case here in the United States, in which the RIAA is seeking a court order to make an ISP reveal information about a pirate subscriber.

Posted by Ting Shi at 05:21 PM | Permalink | Comments (0)
Doc Searls on Hollywood/Silicon Valley

Got this from a Digital Consumer post, and it's worth the read to get updated on the past dust-up with Chernin at Comdex a few weeks back: The Real Battle at Comdex: Intellectual Property vs. Internet Protocol. Arguably the best part is the pointer to Jonathan Peterson's annotated rebuttal of the Chernin transcript.

Posted by John Battelle at 10:27 AM | Permalink | Comments (0)
Berkman on Grokster via Greplaw

A good summary of the ongoing case against Grokster and Morpheus is here on GrepLaw. Also offers a quick summary of how it differs from Napster.

Posted by John Battelle at 10:21 AM | Permalink | Comments (0)