Sheldon Pacotti in Salon writes "Are We Doomed Yet?" looking at information technologies and the threats they pose to humanity. He is "alarmed by the ease with which our society is being frightened into abandoning its hard-won openness. Numerous ideas currently in circulation, taken together, foretell a future which might shock our late-capitalist sensibilities, but which could very well become our reality, by degrees, if we don't take the time now to ask fundamental questions about what we value as a people. "
The shift in science from the descriptive to the functional is the key. Instead of observing with language, it's about reconfiguring the natural world as language, which does not just describe, but digitally encodes. The shift to heightened granularity of choice makes this the age of fashion (as compared to the age of machinery in the last two centuries) where diversity and customization make every expression, from your genes to computing to your t-shirt a computational exercise in design for consuming.
"The power of our voices to reshape materials to suit our pleasure will soon be limited only by our salaries. But as advanced language-processing technology frees us as consumers, will it also make us free in more fundamental ways, as citizens, artists, parents, employees? Or will its functional nature -- and, by extension, its users -- be seen as a danger that needs to be regulated?"
"In crude terms, governments are deciding what to do about networks. Since the rise and fall of Napster, everyone seems to have a theory about what to do about piracy on the Internet, but piracy is the smallest of the threats waiting for us in the digital age." So it's not piracy, but dangerous technologies (he gives the example that posting DeCSS is unstoppable by the government, and if someone posted a new Ebola-AIDS genome, it would be just as unstoppable, but far more dangerous) that are threatening. And if there must be surveillance, he believes it should be through a completely open network.
"...Though we might be foolish to put too much faith in the romantic notion of the ?citizens' militia,? we should be very suspicious of laws that limit the creation or dissemination of knowledge. They threaten to create a privileged class of information shepherds who, though well-meaning at first, could easily abuse their dramatic power advantage over information consumers. We should not give up our freedom to know and to communicate unless we are certain that the new order would be vastly more secure than the present one -- and, as I argue above, the likelihood is that it would not."
So if computer code becomes the central form of expression, what happens to free speech, and the open society? He argues that we need the most educated, most open society in order to overcome the next generation of dangerous technologies. "The choice is not between a perilous freedom and a secure tyranny, but rather between fear and trust."
Peter Bagge's latest at reason.com.
The Register picked it up, and just quotes him because it's so well done. Basically, several states have passed or are considering super-powerful, but state level (hence the mini descriptor), versions of the DMCA (pdf) that will make sending and receiving encrypted email illegal, as well as using network address translation for addressing packets (this is written from behind both soft and hardware firewalls with NAT turned on -- I can't imagine high bandwidth connections not using either or both of these to keep some measure of security), not to mention the usual OS's like Windows that use NAT would be outlawed. The Register covered this topic but essentially just reprinted Ed's explanation.
Which brings up the blogging and media issue. For sometime, the debate about whether blogging is journalism has been discussed, and while this is receding there are still those who believe it cannot be, because of the lack of editorial oversight and the unreliability of blogs (a biz tech reporter at a large regional paper told me this two weeks ago). In effect, Ed becomes a journalist for the Register, because they ripped his stuff. Ed's blog is a great contribution to the advancement of the debate around IP issues, because of his unique experience (CS prof, fellow at the Stanford Center for Internet and Tech, recipient of RIAA lawsuit, encryption expert, blogger). Like anything on the Internet, trusted sources are critical, but the blogging medium really has nothing to do with veracity and usefulness. The value of his writing stands regardless of the medium's lack of editorial oversight.
Update 03/30/03: Declan McCullagh also wrote about this Friday in CNet, and posted to Politechbot today (thanks to Frank on the CNet article as well).
The Glushko-Samuelson Intellectual Property Law Clinic, American University, Washington College of Law announces: COPYRIGHT CLEARANCE INITIATIVE WORKING GROUP MEETING WE NEED YOUR HELP!!
*Authors *Scholars *Artists *Curators *Academics *Musicians *Archivists *Filmmakers *Computer Programmers
All need to use material for which they cannot get copyright clearance because they cannot locate the copyright holders!! These materials may be old, or obscure or unpublished. What they all have in common is that rights in them are difficult or impossible to trace.... As a result, the public has less access to the best information.
Come to our working group meeting to help solve this copyright clearance problem.
We will discuss:
§ Frustrations with copyright clearance requirements;
§ The effect on the public's access to information; and
§ Possible legislative solutions.
Big Champagne is reporting that Internet file sharing of music is big, really really big! 61 million Americans are downloading; in fact they report it's bigger than the record industry. Eric Garland of Big Champagne suggested the music industry embrace the change, but the record industry has rejected that (do you know anyone who would say no to a market this big handed to them like this?). At a Senate Select Committee on the Entertainment Industry hearing, Kazaa lobbyist Phil Corwin suggested, "The record business, in the digital revolution, has been a day late and a dollar short." He said that media consolidations, high CD prices, and the end of the trend to convert vinyl albums to CDs were the reasons the music industry was hurting now. Kazaa is developing a paid download site. But Matthew Oppenheim (RIAA counsel) said it was Napster that ruined their business.
Check it out: Legal MP3 Downloads is a new blog cataloging free legal MP3s. They don't happen to list Techn9ne yet, but download their whole CD, Absolute Power, for directly free... and check out their video "'F.T.I.' Video Spot 1."
Meanwhile CNet is reporting that copy-protected CDs will be shipped to the US market this year. Apparently Arista, using SunnComm encryption (whose motto is "lightyears beyond encryption") will do this soon. SunnComm recently agreed with Microsoft to make encryption that will protect CDs, and then MS will make tools that allow "second session" recording for personal use, but not allow the files to be copied for file sharing over the Internet. But the technology from this partnership will come much later. In the meantime, the CDs with just the SunnComm encryption will ship. SunnComm also developed the previous encryption that damaged some machines.
Update: 3/30/03 Thanks Frank! Here is the CA Senate Select Committee on the Entertainment Industry website and list of members. And check out this write up from Murray, the Chair of the Committee, on the music industry.
Update CORRECTION (5/24/03): When the above post was written, the CNet article stated that SunnComm had developed the encryption technology that damaged some machines, but Peter H. Jacobs at SunnComm has let me know that actually it was Midbar's technology that allegedly damaged computers, and not SunnComm's technology, which has damaged nothing. Also, SunnComm reports that their SunnComm/Microsoft hybrid copy control product is shipping complete, and not separately as CNet reported in their article. In addition, their product, MediaMax is supposed to allow some copying of purchased music for friends without allowing the sharing of that music on P2P networks, and therefore work as a "middle ground" solution.
Brown talked a lot about trusting information in the digital age, as we remove context and then recontextualize the digitial in tinkering, reusing, etc. and why it's so important to tinker in the process of learning and innovating the digital world.
-by waving your arms around, and yelling "terrorists", you can cloud men's minds (and women's too). People (in Congress?) have lost perspective, partly due to entities like the RIAA who associate terrorists with pirates, and somehow get away with it because they are using the word, terrorist.
-wifi is the junkband, where anyone can transmit, after conforming to a few FCC rules and standards, like 802.11, and there are wireless networks all over like SFLAN, or Schlotzky's deli, or Jhai or on the tops of water towers in rural parts of the midwest. Wifi is cheap, ad hoc, verses the G3 situation, where massive investment, infrastructure and consumer costs have to be in place, not to mention lots of standards, for the system to work. Instead, mesh-networking might fill the 3G need.
-in order to prevent the Napsterization of digital TV and movies, the MPAA, et al, have proposed the broadcast flag. But what happens when all it takes to get around this is $200 in Radio Shack parts and some free software from the internet?
-spectrum allocation is big. It is the reason the Titanic sank. Which btw, all good stories start with either the Titanic sinking or some other disaster. Anyway, the Titanic was blocked as it tried to send distress signals because it was in between two ships. This prompted the forming of the Federal Radio Commission, the precursor to the FCC.
-The Spectrum Policy Task Force, put together by Michael Powell of the FCC rethought spectrum in the commons model, concluding that there is no free market when the freeway is divided into 5' sections. Instead, make the freeway free, and then let monopolies exist at the property at the offramps for minimarkets, etc. There is enormous value created when you don't charge for the commons.
-Like Napster showed us, each new copy is another, so there are no less than existed before. This is true of spectrum commons.
-From Reed & Co: when two beams cross, they pass through each other. Interference is a product of the receiver, and more sensitive receivers will solve this problem.
-Tim Berners-Lee didn't have to go to federal regulators to make http and html, he just did it. Innovation is stifled when the costs are too high and there are too many restrictions.
-to make the pringle's can antenna, punch a hole near the intersection of "sodium" and "carbohydrate", and another in the left eye of the icon.... Who needs standards associated with expensive equipment when you have a perfectly formed and printed pringle's can to mark up and make into an antenna for throwing wifi signals around.
--Nerd determinism: our superior technology will trump your inferior laws
--Nerd fatalism: all laws are shit.... legal and possible are synonymous
We have to get the techies to participate in solving these issues because one or both of these are the way many people feel.
Viral, direct marketing is nothing new, but for the music business and musicians, putting more and more of their work out onto the Internet, it's different. Madonna is selling her latest single, "American Life", available for download with a $1.49 payment via Paypal. Simply Red has released their eighth album, HOME, on their own label, simplyred.com, including lyrics and samples of the music. They apparently hope to make 300-400 percent higher returns than on standard record company contracts. Mick Hucknell refered to these contracts as "immoral" in a series of articles at FT.com about the music business and ditching the major labels. These marketing scenarios turn old models upside down, and while this isn't really new for the audience, who've downloaded directly for years, it is new from the business end. Madonna is doing this through her label, Warner Bros., but Simply Red is on their own. While Simply Red may be the game to watch these days, there are some other smaller artists out there giving this a try, like Eleni Mitchell. But the theory is that having an established fan base and quality music are the only way to make the direct model succeed.
Hucknell says he will never go back: "No, this is how I will make records for the rest of my career," he insists. "There's not a chance I'd go back to a major -- not a chance. I'll do distribution deals with people, but nothing beyond that."
On the other hand, Max Hole, at Universal, where he has licensed the Simply Red album for some territories, says that, "It's an option for a successful financially secure artist, but it's risky and expensive. At least with a major you are going to be paid. Generally, artists are better off with a major."
A couple of interesting points from Barlow: -A song is a verb; a CD is a noun. They keep mistaking the bottle (the CD) for the wine that is in it. We're creating a means of creating an economy around the wine.
-It's very difficult to get us out of the industrial-era thinking that scarcity and value go together--and the developing world has the short end of the scarcity/value model.
-This relationship may be turned on its head in the information economy. A song is different than a diamond. If I give you a diamond, I don't have it anymore. But if I share a song, I still have it. In the US currently, the corporate IP owners have become aggressive in their mission to clear-cut the rainforest of thought.
This last is a different metaphor than the commons/sharing one, even though they have some common roots. They both ask property owners to consider the community, but the rainforest model gives an immediate framework for understanding a rich ecosystem of ideas where dependencies between thoughts and expressions become obvious if we look in ways similar to biological exploration, verses the commons, which evokes the property owner verses pirate/communist model advanced by organizations like the RIAA/MPAA. And yet, the interdependencies of a fragile ecosystem can be less apparent if we take the view that trees and forest on my land are for my taking, no matter what effect I have on my neighbor's land and the rest of the ecosystem dependent on my land as part of a larger fabric of life. Copyright holders, content purchasers and those in and around those two groups, exist in an idea/expressions ecosystem. Locked down through copyright, purchasers get goods similar to those made from cut trees, the result of which is really only a small portion of what is lost in destroying the forest, and the rest of the ecosystem. Those who exist in and around copyright holders, the metaphorical animals, plants, the air regeneration, weather and water, soil and anything downstream, etc. dependent on the ecosystem are simply out of luck, post-clear-cut.
In locking down expressions so tightly, we prevent the known and unknown potential inherent in the ecosystem, for the sake of allowing the content maker to profit from the expression. The Copyright system, as it stands now, is used in the clearcut method of deforestation. The question is do we have some more sustainable way to balance the ecosystem with property owners interests, much the way we have considered these interests in environmental movements around the globe?
And while they are reorganizing under Ch. 11, they will probably sell their ReplayTV and Rio MP3 businesses to D&M Holdings in Japan, and GoVideo Business Unit to Opta Systems, which leads to the question of what they will focus on in the future. And what about the million people who purchased the Replay system? And who will be responsible for the lawsuits? All unknowns, but it does seem that a combination of the economic downturn, less than enthusiastic adoption of digital video recorders, development costs for new technologies and the lawsuits pushed them to the point of restructuring and selling off assets.
According to the SJ Mercury News, they are declaring bankruptcy because of the "crushing debt" ($355 mil in debt verses $342 mil in assets) from acquisitions of new technologies ($150 mil) in order to move from microprocessors to consumer electronics. But last month, CEO Greg Ballard said, "Brace yourself. We are spending roughly 25 percent of operating expenses" defending the (Replay TV) case. "That amounts to $3 million a quarter on this court case alone," and that is money that could have been used to push the company into profitability or hire 128 new employees, he said. This was at the Digital Rights Summit.
It is difficult to tell based on these different remarks what portion of SonicBlue's troubles come from the lawsuits and what is a result of other circumstances. But it seems logical that if they've been spending 25% of their operating expenses on lawsuits, an equal amount of their management focus must be on them, as well as business strategies around their future liabilities. So while they said the lawsuits did not push them into bankruptcy, other remarks infer that the lawsuits didn't help, as they diverted management attention away from planning and running the company, and hiring new employees to create more innovative technologies leading to more business opportunities and potential profits. Also, I would imagine it's difficult to get additional investment capital when 25% of operating revenue is going to defending lawsuits. And if they are trying now to sell assets associated with the lawsuits, it would be silly to emphasize to the press the lawsuits as a major problem during the sale process. If I were one of the 28 companies on the other side of the Replayer lawsuit, I would feel quite satisfied with the efforts to cripple this company right now.
Our latest post below by Eddan Katz, a new bIPlog contributor, departs from our usual format. It more resembles the special reports prepared by the IP weblog class, but it is not a direct report as the others were. It is a piece of prose both telling a story about IP as well as demonstrating the tensions between copyright and free speech through words and links. As with all interesting text, it requires interpretation different than the usual quick read on a weblog. I hope you find it as exciting as I do, coming back to it as something worth reading again. I also encourage you to share Eddan's work as a Creative Commons: No Rights Reserved contribution to the public domain.
You will not be able to stay home, dear Netizen.
You will not be able to plug in, log on and opt out.
You will not be able to lose yourself in Final Fantasy,
Or hold your Kazaa download queues,
Because revolution is not an AOL Keyword.
Revolution is not an AOL Keyword.
Revolution will not be brought to you on Hi-Def TV
Encrypted with a warning from the FBI.
Revolution will not have a jpeg slideshow of Dubya
Calling the cattle and leading the incursion by
Secretary Rumsfeld, General Ashcroft and Dick Cheney
Riding nuclear warheads on their way to Iraq,
Or North Korea, or Iran.
Revolution is not an AOL Keyword.
Revolution will not be powered by Microsoft on
The Next-Generation Secure Computing Base
And will not star Pamela Anderson and Tommy Lee
Or Larry Lessig and Martha Stewart.
Revolution will not promise penile enlargement.
Revolution will not get rid of spam.
Revolution will not earn you up to $5000 a month
Working from home, because revolution is not
An AOL Keyword, Brother.
There will be no screen grabs of you and
Jeeves the Butler one-click shopping at My Yahoo,
Or outbidding a shady grandma on eBay for
That refurbished iPod 20-gig.
MSNBC.com will not predict election results in Florida
Or fact-check the Drudge Report.
Revolution is not an AOL Keyword.
There will be no webcast of Wil Wheaton boxing
Barney the Dinosaur on the dancefloor at DNA.
There will be no mob- or wiki- blog of Richard Stallman
Strolling through Redmond in a medieval robe and halo
As St. iGNUcious of the Church of Emacs
That he has been saving
For just the proper occasion.
Survivor, The Osbournes, and Joe Millionaire
Will no longer be so damned relevant, and
People will not care if Carrie hooks up again with
Mr. Big on Sex and the City because Information
Wants To Be Free even while Knowledge Is Power.
Revolution is not an AOL Keyword.
There will be no final pictures from inside the
World Trade Center in the instant replay.
There will be no final pictures from inside the
World Trade Center in the instant replay.
There will be no RealVideo of 2600-reading,
Linux-booting white hat hacktivists
And Mickey Mouse in the public domain.
The theme song will not be written by Jack Valenti or
Hilary Rosen, nor sung by Metallica, Dr. Dre,
Christina Aguilera, Matchbox 20, or Blink-182.
Revolution is not an AOL Keyword.
Revolution will not be right back after
Pop-up ads about eCommerce, eTailers, or eContent.
You will not have to worry about a
Cookie in your browser, a bug in your email, or a
Worm in your recycling bin.
Revolution will not run faster with Intel inside.
Revolution, dude, is not getting a Dell.
Revolution will increase your Google rank.
*See generally Gil Scott-Heron, The Revolution Will Not Be Televised.
As she received the "'Harry Chapin Humanitarian Award' from the National Association of Recording Merchandisers, or NARM, in Florida," Rosen cited Martin Luther King's inspirational words: "Social change cannot come overnight, but we must always act as though it were a possibility the very next morning."
However, inspiration was not the only part of her speech; she also mentioned the self-help, such as sending poisoned files over P2P networks. Regarding the Verizon case, she mentioned that, "Verizon has unfortunately turned this case into a bogus claim to protect their members' privacy rights. When you are on one of these p2p systems and have opened your hard drive and its contents to the network, you have given away your own privacy." Yes, but what about all the people who didn't open their harddrives? They are part of the subpoena to Verizon as well. And what about the idea that the ISP's are not responsible for what users keep on their harddrives?
Meanwhile, the RIAA sent out letters to 300 companies (35% are tech companies) about illegal file sharing on their networks.
Gotta love that high road/low road thing they got goin'. In fact, I think Jack Valenti has been to the same dance party recently. Somehow they got their causes mixed up with both the high ideals of MLK and social change, 'duty, service, honor, integrity, pity, pride, compassion, sacrifice....' (~Jack) and terrorism and organized crime. They're spinning more than records.
Microsoft and the Motion Pictures Association of America never relax.
In the latest news, reported by CNET News.com, Jack Valenti, president and CEO of the film industry group, and Richard LaMagna, a manager of Microsoft's antipiracy investigations, testified before a House Judiciary subcommitee, lamenting that their intellectual property is being stolen by organized-crime gangs around the globe, especially in countries like Russia or Malaysia where copyright laws are weaker.
"Large, violent, highly organized criminal groups are getting rich from the theft of America's copyrighted products," Valenti said.
As if this weren't enough, John Malcolm, the official who oversees the computer crime division at the Justice Department, offered a vague and unsubstantiated warning to the panel about the connections between copyright piracy and terrorism.
Does this mean everyone found in possession of an illegal DVD is bound for Guantanamo?
A bag on a flight from Seattle to San Diego was found by its owner to have been inspected by someone commenting on the contents of his bag, which included some "No Iraq War" signs. The baggage inspector included the official preprinted inspection notice in the bag, but also wrote a note: "Don't appreciate your anti-American attitude!"
Robert O'Harrow, Jr. writes about the Aviation ID System and the Senate Commerce Committee's vote to support TSA disclosure of the systems' details and privacy implications. The CAPPS II system will rely heavily on commercial data systems about every American adult. In other words, your Choicepoint report, with information about every trackable purchase ($3 coffee at Starbucks? $2 bagel at Noahs? etc. from your debit card) as well as other kinds of activities you participate in, like your neighborhood watch association membership, or your work as a Boy Scout troop leader, all your speeding tickets, will be used to make decisions about screening you, or letting you fly at all. Even though laws, like the Privacy Act of 1974 discourage the government from doing this themselves, the Act doesn't discourage buying the info from a company, even if it's just the aggregated score. So the question is, how much of each person's report will be used, or will they just look at an aggregated score, and how much control will people have to correct mistakes or even know that any particular information is being used. In 2001, Glenn Simpson, in the Wall Street Journal (courtesy of IP/Farber) (or the WSJ -- sub req) reported the FBI using Choicepoint, as well as 35 other Federal agencies, to make decisions about citizens.
"This is really the beginning of a debate of how our country can fight [terrorism] ferociously, without gutting civil liberties," said Sen. Ron Wyden (D-Ore.), whose amendment "would require the TSA to report how it will mitigate errors and enable appeals from passengers who believe they were incorrectly identified as potential threats."
Benetton (CNet, Wired and SFGate) will embed radio frequency identification (RFID) chips in the labels of its clothing. Prada does it now, and Walmart, Proctor & Gamble and Tesco (who is designing shelves to read the tags) are thinking about it. These companies want to track inventory in the store, but with a 5 foot range, and the potential to transmit data from one sensor to the next through a series of RFID tags located in many items, the contents of say, your house, could be scanned out front or as you walk near sensors on the street, wearing something from one of these stores. It seems like all benefits are on the business side and very little good is on the consumer/customer/user side (whatever we are this week...). I can't wait for the anti-circumvention lawsuit for removing the tag.
This year, Phillips Electronics will send Benetton 15 million of these sensors the size of a grain of sand that hold about 1k of data, or a paragraph of rewritable text. Phillips has sold a half billion of the chips mostly used in smart cards for transportation systems. What's kind of odd is that Karsten Ottenberg of Phillips Semiconductors said (in SF Gate) RFID tags "could be used for 'customer loyalty' rewards that could earn consumers such benefits as frequent flyer miles, free music downloads or discount coupons." I'm not sure how this would be implemented or what he had in mind, but the only additional information RFID tags might give other than just adding to the aggregated purchase information already collected at the cash register is for the retailer to scan clothing worn into the store or past some other sensors. This seems to contradict his other statement that, "cautioned that the chips will store no data about the customer, and will be essentially useless after the garments leave the store."
A few years ago, this was much more experimental and speculative. Now, in practice, the issues around privacy are staring at us, quietly, and the question is, do we take the fatalist approach, where we allow this to be inevitable and give in to it, or take the communitarian view, where we give up privacy for the good of the community (commercial community?), or do we look at building privacy into the systems that use sensors and collect data, and think about public policy to protect people from the only part that is truly inevitable: the sensor web is here. What we decide or let happen now will as usual, be very hard to change later, as a matter of policy and inertia.
Update 3/17/03: (from Frank/Furdlog) The Boston Globe has an article today on the RFID chip, mentioning CASPIAN (Consumers Against Supermarket Privacy Invasion and Numbering) which is working to create privacy protections against the RFID chip.MORE...
But anyone in close proximity to a game (and therefore, within local range and lucrative TV rights), will have the system blocked. Anyone caught circumventing will be fined $100 on their credit card. Monitoring will be done with Quova technology, matching IP addresses and billing zip codes, but the chief exec of Internet baseball, Bob Bowman says: "I don't ever underestimate the scientific capability of 16-year-old high school students."
...that the FBI may be spying on the Library's book check-out and computer systems. "Questions about this policy," patrons are told, "should be directed to Attorney General John Ashcroft, Department of Justice, Washington, D.C. 20530."
Rep. Bernie Sanders, Ind-Vt., has introduced the Freedom to Read Protection Act that would repeal the library and bookstore provisions of the Patriot Act. Apparently, a letter written by Assistant Attorney General Daniel Bryant to Senator Patrick Leahey saying "Americans who borrow or buy books surrender their right of privacy," has brought about quite a bit of support for this bill. Librarians, under a gag order to keep them from revealing when they have been served with a warrant, said in a recent survey (almost 60 percent of the 906 respondents) that they believed it was unconstitutional. One librarian is simply stating regularly when there are no warrants, so that when there is no statement of anything, people will know there is a warrant that has been served. Huh? Does this feel odd to you? Reminds me of when the State of California required public school teachers to sign a loyalty oath to the state, and the only people who signed were the ones they were actually concerned about, because they wanted to stay under the radar. Do we really want public policy that creates situations like this?
Julie Cohen, at the DRM Conf two weeks ago, talked about her "right to read anonymously" (pdf) ideas. Eight years later, this is more true than ever: "the new information age is turning out to be as much an age of information about readers as an age of information for readers." And yet her idea that "reading is so intimately connected with speech and freedom of thought that the First Amendment should be understood to guarantee such a right" seems further and further from the understanding our government implements in its policies.
John Perry Barlow talks about his three fears about copyright and DRM: 1. Erecting a system which highly advantages a very few corporate channels for human intellectual exchange. 2. That Digital Rights Management today is Political Rights Management tomorrow. 3. That by wrapping a large amount of human knowledge up into bottles that can no longer be opened except at a price, much of it will be wrapped up in crypto bottles that in a very fairly short time cannot be opened even at a price. A huge amount of human creativity will simply be lost for future generations.
Congresswoman Zoe Lofgren proposed a bill Monday that will preserve comsumers' rights to make backup copies of purchased music, movies and books for use on other personal devices, like the car stereo or a portable player (reported by Dawn C. Chmielewski in today's Mercury News).
Logfren admits that the bill, which already died last year in committee, is a legislative long-shot. Of course the Motion Picture Association of America and the Business Software Alliance, which counts Microsoft, Cisco, IBM and Intel as members, oppose the bill. "As drafted, this legislation essentially legalizes hacking," said MPAA Chairman Jack Valenti in a statement. He also said, with characteristically murderous metaphor (remember the Boston Strangler?), that Lofgren's bill would put a "dagger in the heart" of the DMCA. Not a bad idea...
"If it's my own DVD disc or my own CD, why can't I make fair use of this property? I think that's one of the things Congress did intend as part of the balancing principle of the DMCA,'' says Pamela Samuelson, from UC's Boalt Hall Law School. "At least as interpreted by some judges, that compromise has been undermined. (Lofgren's) bill ends up trying to restore the balance that Congress intended.''
Unhappy targets of journalism, especially those in the technology industry, are using the DMCA to stop leaks from turning into published material. As you know, journalists often find themselves in the possession of information that others would very much like to stop them from publishing (Pentagon Papers, leaked memos, technology specs, the works). But the "power of the press" has ensured that whoever wishes to stop them simply can't - they don't control the printing press, the distribution networks, or the broadcast equipment. And the courts, for the most part, have backed publication over injunction. This all changes with the DMCA, as Microsoft proves in this case, which is not the first, and, most likely, will not be the last. Who needs an injunction against a publisher when you can just shut down its ISP? Microsoft claims copyrighted material was illegally posted on the site in question, but we should watch this space. Perhaps when journalists are threatened on their home turf, the rest of the world will realize what's really at stake here.
Confusion is the theme of David Pogue's NYTimes article on the current state of buying music on the Internet. He points out the five: AOL's MusicNet, PressPlay, Rhapsody, MusicNow (up in a month) and RealOne MusicPass. All offer very complex pricing arrangements, but at least they're taking a stab at the market, even if some artists are holding material back, with the services all tending to offer the same 250,000 songs. He says this would be amazing if they weren't following another amazing invention: Napster, KaZaa, etc. But maybe the record companies are finally getting the clue, and users are getting fed up with all the poor quality files (planted by... we couldn't guess) that might have the effect of steering users from the darknet to legitimate downloads. These music services need to spend some time making the right market arrangements before this takes off. And hopefully they do get it right.
Declan McCullagh talks about the DMCA and tech companies who support, or oppose, changing section 1201 to loosen the anti-circumvention restrictions. The interesting part: he speculates that "Intel sponsored a Digital Rights Summit that, in conjunction with a second conference at the University of California at Berkeley, may prove to be a turning point in this debate." That would really be cool.
Artist / pop-culturist Perry Hoberman is also a programmer. And he's fascinated by the chilling effects of modern copyright wars. For his piece Infringement Series, Hoberman created a set of Mac OS X dialog boxes which imagine a future in which saving a document from your word processor forces your text through a built-in copyright scanner. If you've been so negligent as to use copyrighted phrases such as "Like nothing else" or "Because you can," you'll be automatically prompted for payment.
Tomorrow morning at 7am PST (there will be a live audio feed during the event), The House Subcommittee on Courts, the Internet, and Intellectual Property will hold an oversight hearing on "Copyright Piracy Prevention and the Broadcast Flag", per Donna at Copyfight. This was a subject in hot debate at the DRM conference Saturday. One suggestion for implementing the Broadcast Flag was to discontinue all over-the-air transmissions of TV signals so that Broadcasters and the MPAA would feel more comfortable sending digitial content, regardless of the fair use implications or the issues of information flow in a democracy.
Note the end of the panel discussion:
Emery Simon, MPAA…Do you know percent of the American public who gets their television that way? Less than 20%. (He was speaking of over-the-air broadcasting signals.)
Richard Epstein, U of Chicago Law Prof…Well then you are telling me something which I kind of guessed, because I have a cable and a dish at my house. I get anything I can get over the air, over those two things. So what we really have to do is to junk that technology, put everything through encryption, once you encrypt it then you can monitor it, and then you don't care about it, including the assignment problem, and then we can all go home, including the FCC.
Mozelle Thompson, FTC Commissioner... With all due respect, a lot of people like me are among those 20%.
It reminded me of redlining, where financial institutions refuse to serve poor areas, except this is sort of a proposed technological redlining of those who do not subscribe to cable, where they will no longer be able to receive over-the-air broadcasts. Some of these people don't have cable because they can't afford it, some because they don't watch much TV or want the expense, and some because they don't like cable monopolies, but they all still want over-the-air access, regardless of use and need, and this digital divide between cable users and non-cable users is not likely to go away soon.
Although, according to this National Broadcasting Association memo (pdf) from August, 2002, they, and the FCC, are committed to retaining over-the-air broadcast signals, and it's actually 81 million sets, or 1/3 the population, that receive free TV signals. "Relying solely on cable as we move into the digital television world runs contrary to the U.S. system of free, over-the-air broadcasting."
All this to prevent people from taking digital signals to make and distribute pirated copies downstream, which Ed Felten shows would be quite a task right now.
Derek Slater has some interesting thoughts as well about over-the-air transmission of content.
IT world reports today from Norway that Jon Lech Johansen, also known as dvd Jon, is scheduled to return to court for the appeal of the case filed against him by, among others, the Motion Picture Association of America. Johansen was sued, then aquitted, for creating DeCSS, which makes it possible to decrypt movies in DVD format.
Static Control has filed an antitrust suit against Lexmark for $100 million in damages from a "rival it alleges engaged in monopolistic practices." This follows last Friday's injunction where, in Lexmark's case against Static Control invoking the DMCA, Static Control was ordered to stop manufacturing the disputed chip that allows their toner cartridge to work in Lexmark's printer.
Last Saturday at the DRM conference, Emery Simon, of the Business Software Alliance, said this about the case, and the DMCA law used by Lexmark to protect it's printers from interoperability with other toner cartridges: "about Lexmark, whether it is an unintended situation or an unanticipated one, I don't know. ...the DMCA is focused on ... piracy issues, and so it was based on relationships between companies, competitors and the marketplace. So it was certainly an unanticipated situation. Whether the DMCA should be used in that way or not, I personally think it should not, but whether it will or not, the courts will decide ... if the courts decide this thing erroneously, there will be a role for coming back and looking at this thing again."
Zoe Lofgren, who gave a speech at the DRM conference just before the panel discussion where Simon said those words, has introduced a bill into the current Congress that is apparently the same as HR 5562 from the last session, which "permits bypassing copy protection mechanisms if the purpose is to 'to make a noninfringing use.'" At the end of the BSA press release, they say they oppose the bill because, "Any weakening of the laws that promote continued innovation and needed protections for copyright owners will ultimately stifle industry growth and limit consumer choices."
Is it really promoting innovation when copyright owners like Lexmark protect themselves from competition by putting a chip in their printer to keep away toner cartridge manufacturing competition? The BSA admits that much of the proposed legislation to change provisions of the DMCA doesn't apply to software, but they are worried that any piracy, or anti-circumvention for fair use, (which may include Static Control's case) would be legal if the "intent" of the action were legal, and therefore they oppose the bill.
I guess we have to wait on the answer to the question about whether Lexmark, and Chamberlain (of the garage door opener case), are engaging in anti-competitive behavior. The BSA should figure out what they really think, and then work with Lofgren and others to fix the DMCA mess so that copyright owners are reasonably protected, and innovation and fair use are still on the table.
Audio of the conference is up, and video will follow shortly.
Amy Harmon's NY Times piece on the DRM and Spectrum Conferences held in the past few days summarizes some of the most important issues, focuing on copyright and innovation.
BusinessWeek/Cnet About the Lexmark injunction Friday, "This is a travesty," said Alex Alben, of Real Networks (whose question to Pam Samuelson is a couple posts back). "This is not what we intended when we created the DMCA."
JD Lasica with the pithy thought: "In many ways it was the West Coast version of the I-Law conference at Harvard..."
Derek Slater and here.
Legal Theory Blog
Epeus Epigone - Kevin Marks making the argument "that no-one seems to be making the 'DRM Destroys Value' argument."
Bag and Baggage
The first panel discussion yesterday focused on DRM as a tool, with a lot of discussion around the Broadcast Flag (or see this definition) and what it means to DRM and broadcasting, movies, and the media business. Full transcript as best I could make out from the tape is here, with a few thoughts below and under the more button at the bottom.
Mozelle Thompson (FTC) is skeptical of content owners' and broadcasters' motivations because they have asked for contradictory protections from the FTC over the years.
Richard Epstein (U. Chicago Law School) is willing to give up "that little bit of consumer right" of fair use in order to protect broadcasters using the Broadcast Flag, if that's all that is lost. But he said repeatedly that there were still too many things undefined about the Broadcast Flag debate to really be able to advocate a position, but seemed to lean toward protecting content owners over everything else, on issues beyond fair use. Regarding HDTV and cable, he says: "So what we really have to do is to junk that technology (over the air broadcast), put everything through encryption, once you encrypt it then you can monitor it, and then you don't care about it, including the assignment problem, and then we can all go home, including the FCC."
Emery Simon (BSA) admitted that it's very expensive and difficult for consumer groups to get involved with standard setting bodies. The easiest thing for the public is to rely on Congress or the FCC, but for his "money, it's still better to try to do this through voluntary efforts, and include whoever wants to show up at these things and speak their minds."
Fritz Attaway (MPAA) said that he thought that while it is difficult for consumer groups to participate in standards body decision processes, consumers have the marketplace and can take or leave technologies, as they see fit.
Jon Healey (LA Times) talked about how difficult it is to describe these things to the public, when they don't care so much about the technical details and processes, but rather just want to know the ramifications of the options offered to solve these problems in broadcasting digital content.
Ed Black (CIAA) cautions consumer groups to get involved in the standards bodies or risk losing the fight to a few companies who might define a standard with a competitive disadvantage for other companies, where consumers then also lose out on the most competitive marketplace possible.
Update: see Ed Felten's post on this issue.
The conference was extremely interesting and very well done. I will post notes as updates, as I go through them. Transcriptions will be up in about a week through the conference site, and some streaming or webcast info might be available soon, too.
The first panel this morning was amazing on DRM-related legal and policy initiatives in the U.S. Pam Samuelson moderated, with Fritz Attaway of the MPAA, Jerry Berman of the Center for Democracy and Technology, Ed Black of the Computer & Communications Industry Association, Richard Epstein from U. of Chicago Law School, Jon Healey of the LA Times, Emery Simon of the Business Software Alliance and Mozelle Thompson of the FTC. Will post notes shortly here.
One observation about the conference: it seems like the subtext around the DRM question in all the panels, discussions on breaks, and speakers presentations is that Microsoft is the 500 million dollar gorilla (this is what they recently were noted as spending on free DRM and this was never mentioned at all at the conference that I saw) strangely absent from the talk. MS has not been mentioned here much, other than in the couple of panels where MS people have participated or where an audience question has brought it up (and once, Ed Felten graciously agreed to act as MS spokesperson). It feels like people either don't want to mention them, because it might be just more of the same Microsoft-bashing, which is boring, or would further cement MS's control over this area of technology development, or people are nervous about making statements about them in public. But MS as subtext is everywhere, kind of like air. Prevalent, but unspoken. It almost feels like it's great that we are here, talking and debating these issues, but with MS defining standards and looking to control rights and access control standards, and having the market power to induce this, we are having a debate around the main issue which is that they exist and will control this.