Fair Use and the Commons
Courtesy of the Smoking Gun.
Update: doncha just love how the press deals with IP? So ABC is talking about how Trump has filed a "copyright" request with the PTO, and Left, Right and Center on NPR just said that Trump has filed a "patent" request for "You're Fired." I'll agree, Trump has a formula, but it's more for his hair than the way he gets You're Fired (okay, that was an awful joke, but then, he has awful hair, you be the judge as to which is more awful). Anyway, just to confirm, people, this is a Trademark issue, not processes which get patented, or copyright which is about expression. Trademark. About names. So that, you know, people don't confuse your clothing or casino products with You're Fired on them, with other people's casinos or clothing with You're Fired. Because God knows if some non-Donald casino was the You're Fired Casino (presumably to emphasize the loser aspect of the whole thing), Trump doesn't want us getting confused with his You're Fired Casino. No problem.
On screen now at Media Morphosis Day 3:
"Insure content security with baked in Digital Rights Management."
Chris: What's the point?
Michael Silberman: I think DRM could be used to keep people from stealing, and get them to pay for content. And it could be used to facilitate the making of content.
DRM for news? Okay, your content has high value for maybe, 24 hours? You want to lock it up? There is no DRM that has never been cracked.
What IS the point? This is about being an authority in your field, being a voice for good trustworthy content and linking out to others talking about the same stuff. Why would you try to stop people from getting that value? Why would you want to keep people from seeing your stuff. Your value comes from the network effect of lots of people looking and talking about you. Take a page from the Wall Street Journal to which noone can link. Take a page from the RIAA, who has been so incredibly successful with DRM. People are mad at the media. Care to make it worse?
Let's move on to something constructive. Design content so it can be reused and accessed.
And here are the comments from the mediamorphosis blog:
Mike, I would really encourage you to read Vin Crosbie's blog (Digital Deliverance) about charging for content. In reference to your comment that you give away content for 7 days and then charge, I'm wondering whether you are using actual DRM. Looking at your site (I've never bought any content there) it appears that you have a firewall. DRM is a whole lot different. Wrapping the content in some DRM and sending it over the internet to a buyer is what I am objecting to. The idea that you would, say, stop a buyer of an article from say, emailing that content to a friend, when if they purchased a paper article, they could easily photocopy it and send it, really annoys people.
DRM is something each content user defines, so you would decide what sort of restrictions to make, but users, if they have trouble opening the article, sending it to friends and family or saving it indefinitely, all of which annoy users, don't reflect the social norms they understand with fair use of news content, and confuses them, but hackers will figure out how to get around.
I would really encourage you to spend time with users to see how they interact with content, talk with them about what they want, see how they use it. Because DRM (which is different than firewalls) as both the technology solution, as well as a legal structure, are not the way to go with content that is most valuable for 24 hours (verses say a hundred years potentially with a novel or movie or music) and that then has the potential, if you share it, to keep you in front of users as an authority and make users happy to be apart of your inforamtion community.
Posted by: mary hodder at March 12, 2004 02:33 PM
"And we're not stopping people from seeing our stuff by doing so - that's a myth."
"If we ever find we can make more money giving it away, well then we'll do that."
i work for a company that makes millions selling content. please don't mistake my thoughts on intellectual property as unrealistically utopian. at our company we are seeing huge business opportunities by giving our customers new tools to make sense and derivative works with our content.
if you are asking your audience to become a content producer, why shackle them with the inability to create derivative works? if they slap the same restraints on you, participatory journalism is not possible.
we live in a period of history when each one of us is - or can quickly become - a global media company.
i think the way to make money will be through developing cooperative content relationships. there have to be mutually beneficial arrangements, which will foster that.
Posted by: chris willis at March 12, 2004 02:30 PM
I trust things less if they use DRM - a sort of instinctive dislike of "protected" things. I'm not quite sure why. It could be my natural rebelliousness - I don't like them telling me not to do something, same as any teenager. I usually respect copyright laws, but DRM is...offensive, not defensive.
Posted by: Britta Gustafson at March 12, 2004 01:34 PM
Actually, we (theage.com.au/ smh.com.au) give our content away for the first week and then lock it up so we can earn a lot of money selling it - and we do make a lot, enough to make building walls around content that is expensive to create.
The utopian idea that all intellectual property should be free is very "hey wow man", but I prefer Silberman's point - which more accurately was that a smart DRM system should be built in to make it easy to slice and dice content created by media companies, while retaining authorial ownership.
And we're not stopping people from seeing our stuff by doing so - that's a myth. It's available at a tiny price.
And if you wanted to, you can crack the DRM system quite easily. You can hack into NASA too if you wanted to, because with technology someone will always find a way to do so. That doesn't mean you should.
If we ever find we can make more money giving it away, well then we'll do that.
Posted by: Mike van Niekerk at March 12, 2004 01:31 PM
Donna points to the lawsuit (pdf) brought by Electronic Frontier Foundation, five library associations, Public Knowledge, the Consumer Federation of America, and the Consumers Union against the FCC over the Broadcast Flag decision made last November 4.
- "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," said EFF Senior Intellectual Property Attorney Fred von Lohmann, "The FCC overstepped its bounds, unduly restricting consumers and manufacturers when it issued its broadcast flag ruling."
And Jason Schultz notes Ralph Nader's long time coming victory lap over Mastercard. MC sued Nader for trademark and copyright infringement because he parodied the "priceless" commercials, by running campaign spots showing the amount it took to buy off candidates on certain issues. As Jason says, Victory is Priceless when it comes to fair use.
Robert Moore of 321 Studios and Protect Fair Use.org just called my cell phone. Or a recorded message of him did, asking me to call Amy Pascal at "Columbia" (which is now evidently Sony), at 310-244-4000, to tell her I wanted her to supported my fair use right to backup copies of my DVD's. I'm a buyer of 321's DVDxCopy so I suppose that's how they have the number.
I have tons of DVD's and there must be a bunch from Columbia, so while it's sort of strange that Moore is calling people this way, I decided to give it a try.
Well, Amy's assistant was most accomodating. I said, "Hi, I'm assuming I can't talk to Amy Pasqual, but I'm calling..." and he said, "about 321 Studios. Got it. Thanks." Click.
Ohh. What great customer service. Makes me want to run right out to buy ten more DVD's from Columbia. Thanks for not taking my name and deluding me into thinking that you actually care about what your customers think. This way, we've all got it straight.
Last Friday, 321 Studios was told by the Northern District Court to stop selling their ripping software, and earlier today they emailed this (I purchased a copy of their software to backup my DVD collection incase of damage or loss, as many of them are obscure collectables):
Dear 321 Studios Customers & Friends,
As many of you may have already heard, Judge Illston of the Northern District of California Court ruled against us last Friday and in favor of the movie studios. This is the first major decision in the six lawsuits in which we are now involved.
Her ruling included an injunction preventing us from continuing to sell the current version of our popular DVDXCOPY software if it included a ripper. This injunction takes effect 7 days from her order. While we do not agree with the rationale behind the decision, we intend to fully comply with the order and, at the same time, file an appeal and ask her to stay the injunction pending the appeal.
This decision is unfortunate news for us. However, we expected the fight for fair use rights to be a long one when we initiated it almost two years ago. We also expected to face great opposition and to take some hits along the way. Well, we are still here and are not going out of business. Starting next week, well sell ripper-free versions of DVDXCOPY as well as all our other popular titles including DVDXSHOW, DVDXMAKER and DVDXPOINT.
If youd like to read Judge Illstons decision or articles written about us, please go to our web site at http://www.321studios.com. If youd like to offer your support, please visit http://www.protectfairuse.org. Meanwhile, we are making every effort to continue to support you and your 321 products.
Please share this news with your friends and family. We can use all the support we can get to continue fighting for everyones fair use rights in todays digital world.
Thank you for your ongoing support,
The 321 Studios Team.
Dan Gillmor in today's column talks about issues of credibility with this kind of speech and the effects it has on our discourse in blogs and more generally on the web, as we evaluate what people say for trust and authenticity (and bIPlog is mentioned). Anonymous speech is very important, because people who would otherwise not comment out of fear of job or other repercussions, can because they are able to do so anonymously.
But there have been instances here and elsewhere, where people have intentionally hidden their identities, commenting on things across this blog and others, as they pretend to be people different than who they are, to gain credibility with other readers and commenters. That kind of speech is problematic, because it is intentionally dishonest. On the back end of the blogs, the owner can see that it's probably the same person, but on the front end, readers are fooled into thinking that, for example, there are several different commenters when there is actually one.
It's a difficult issue, because we want to leave open the possibility that people who are legitimately fearful can speak, but we also want to be clear with those we converse with on this blog that anonymous comments are actually anonymous and therefore must be scrutinized differently than those from people who post their real names. Being willing to stand up and state who you are, let others scrutinize your biases and background, and say what you think should be encouraged because it makes our discourse stronger, better, and more reliable and useful, while at the same time allowing anonymous speech. Telling the difference is key, and we have to work on better tools and communication to do this on the web.
Tomorrow's NYTimes has Randy Cohen/The Ethicist (sorry, no userland link on this one, so see below) starting off with a letter from Siona Listokin of Berkeley asking about "borrowing" the neighbor's wifi. Mr. Manners responds that it's polite to ask consent to use, and offer to pitch in for the cost. But Mike Godwin of Public Knowledge is quoted and the various issues are discussed about using wifi, what ISP's terms of service say verses what is fair, and whether those TOS's stifle innovation.
- ... you may use but not overuse Wi-Fi hot spots you encounter.
Last night, I attended the Yale-ISP/Harvard-Berkman Cyberscholars Group. John Palfrey, David Johnson, and Susan Crawford presented The Accountable Net. It's a paper they haven't yet published, but when it is, we'll blog it. However, the discussion was quite lively, giving the presenters suggestions about areas they might fill in regarding spam, informational privacy, and network security, using peer governance to try to control particular kinds of unwanted behavior. We discussed using social networks, individual's use of their outgoing email boxes, online communities such as blogs and other linked groups, among other definitions of acceptable groups for communications, both practically and theoretically, and whether or not these definitions could work to deter certain kinds of behavior, verses traditional kinds of control and law. People were skeptical, but also supportive, and the discussion seemed to further their work on the paper.
I suggested that when considering social networks, they consider that people have many different kinds of links to people they "know" and that they are very clunky, and may not give the sort of trust or endorsement that trusted online communications need to rely on, and that maybe other means might work better.
Eddan Katz, Derek Slater and James Grimmelman were there, and I met Nimrod Kozlovski (who said, so you're stationed in Berkeley... I said if the people of Berkeley only knew that....) and Shlomit Wagman, and later that night at a party, Paul Szynol, all of whom were Lawmeme writers. Also, Susan Crawford is very lively and a lot of fun. It was great to see people and hang out after. And of course, Yale Law School, actually all of Yale, is lovely, freshly dusted with snow, and then it snowed again in the middle of the night. Just beautiful.
(ps, I wrote this on Friday, but was unable to post it until Sunday, because my hotel's DSL seems to have some issue with publishing on MT, though most everything else works.)
Cory Doctorow on digital music systems:
- Copyright law has never said that the guy who makes the records gets to tell you what kind of record player you can use.
Cory is responding to Scoble on digital music players. Read the whole post. Compare this to our phone service. Even when AT&T was a monopoly, they didn't control what you said over the phone, they just gave you the pipe and the player (they rented you the phone) but neither of those restricted what you said, how you said it, or how others listened to what you projected. I have no problem with a pipe/player monopoly (in this sense) but there is a serious issue when the pipe/player controls any aspect of your content or experience.
I'm jamming on projects (I promise to spend more time here soon, but the next two weeks are insane...).
There is something very wrong with the copyright industry when we have this discussion as part of the question of what needs licensing.
Displacement of Concepts has an analysis of this post by Cory Doctorow who saw this article from last February ("We Can Work It Out" - Kim Howells Invites Musicians To Work With Government On Delivery Of The Licensing Bill), which Cory describes as:
- A new business-licensing scheme in the UK will allow postmen to whistle rights-cleared work without obtaining a venue license first.
- * Spontaneously singing "Happy Birthday" will NOT be illegal.
- * Spontaneous pub singalongs will NOT be licensable.
- * Carol singers, going from door to door, or turning up unannounced in a pub and singing, will NOT be licensable.
- * A postman whistling on his round will NOT be licensable.
Postmen? DOP responds with this:
- ...it's not that whistling postmen don't need copyright permission in the form of a license from the copyright holder of the tune they're whistling, it's that they don't need a live performance license from the government to whistle that tune. They very well may, however, need permission from the copyright owner. Due to the extreme narrowness of the "fair dealing" exemption to the UK copyright law's exclusive rights grant (there is no private use right in the UK beyond the terms of the copyright license granted by the owner, unless it is for "private study"), this is actually a real question. The real answer? Well, whether permission (or a royalty) is required in these kinds of circumstances most likely depends on whether the whistling in question could be considered a public performance of the work, an issue that -- as a typical lawyer -- I will refuse to comment upon until confronted with the facts of a particular case. (emphasis mine)
While I very much appreciate DOP/Rob Heverly's clarifying the issues on the confusion with language and the difference between the use of the term "license" for copyright verses business, I can't help thinking that it's utterly ridiculous that we are even discussing whether the Post Office need obtain licensing for postmen whistling tunes while working. I mean, what is the point here, what is the idea, what is the need? The postman is on duty, walking down the street, delivering mail, not performing on stage for money. He's entertaining himself. Is it the fact that he's singing while on duty, and there's the possibility of obtaining some sort of fee from his employer? Is it a desire for money, or a desire to control the content? I realize the statement is that licensing is unnecessary, but if they are thinking about it, it means they have some concern, the issue has come up, someone somewhere expressed a desire to control or profit on postmen whistling or someone somewhere thought they might violate a very tight reading of the copyright laws. The fact that this has to be clarified officially, formally, demonstrates how far tilted incumbent content control has become. Is the line of control just shy of postmen whistling? Or is it back at copyright's original oversight of distribution and profit? Where do we map the copyright industry's control when that control steps into our individual daily experience and wants to control what hummed tune spills out of our mouths, as we go about our lives?
Frank Field has this summary of Lawrence Solum's notes from the Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment:
- Prof. Solum's closing discussion centers on some interesting points to consider in the face of the apparent conflict between the freedom of speech and copyright - the idea that the fact that today's copyright conflicts with the First Amendment might be an indication that the law has been over-extended.
- We argue about what is a "limited Time" (Eldred), we argue about whether derivative works ought to be covered as part of "exclusive Right[s]" or perhaps as a "Writing"--and that's about it. We don't argue about some of the behavioral judgments that have crept into intellectual property law, often in contradictory ways.
The Norwegian police have decided not to appeal (today was the last day to file) to the Supreme Court after the appeals court cleared Jon Johansen, the author of DeCSS (Register, ZDNet, Reuters, Aftenposten or Nettavisen along with the /. English Translation, or see the opinion in Norwegian) of violating the law by developing the program allowing DVD's to be played on Linux operating systems by decrypting the Content Scramble System code. Jack Valenti must be turning over in his grave, I mean putting on a fresh face for the next round of MPAA speech suppressing fun.
- MPAA: The actions of serial hackers such as Mr Johansen are damaging to honest consumers everywhere. While the ruling does not affect laws outside of Norway, we believe this decision encourages circumvention of copyright that threatens consumer choice and employment in the film and television industries.
How do you circumvent copyright? I think they mean it was the DRM code, not copyright, that was circumvented. The DRM code is used to lock the DVD, but the courts decided that once you buy the DVD, you can do play it in whatever way you want, including on a Linux machine. In fact, that seems to support the idea that in exchange for conveying the copyright monopoly to creators, when we buy their copyrighted works, we then have reasonable right to personal use. Just because we buy something doesn't mean the MPAA gets to step into our living rooms to keep the content from playing on one machine over another. For all the money the MPAA spent fighting this, they could have developed legal players for every possible operating system.
According to the /. translation of on Norwegian report, the court also took into consideration the fact that DVDs are easy to damage and so backing them up is also a consumer right:
- "The Lagmannsrett finds that a DVD is so vulnerable to damage that the purchaser must be entitled to make a copy, for example of a movie he is particularly interested in preserving", part of the verdict read.
Updated 121703: Apparently, they are afraid of getting sued over the readers that lots of profs make up for classes, full of mostly copyright protected works, but sometimes with a few public domain works in the mix. Because of their fears, Ithaca is proposing that every work in a reader be cleared for copyright. Under fair use, portions of works might be allowed to be used for educational purposes as long as the work is not sold for profit, in a reader. Partly, this will affect professors who will have to make more time to clear the copyrights, or choose other works than they had planned, and partly students who will miss out on some works or pay increased fees. Or articles and book chapters will go to the library reserve, where people just copy them anyway, and is a waste of time for student, profs and the library. But it's really too bad that for fear of a lawsuit, they propose making it impossible in a practical way to rely on the fair use doctrine under the education portion of this part of copyright law. Call it the lose-lose policy.
I point out my personal reader costs this Fall: Biz of Media at the JSchool was free - they treated us to the copyright fees paying them directly (thanks guys!); New Product Development at Haas Biz School was $107, Technology Strategy at Haas was $102, and the Samuelson Clinic at the Law School was $58 (not a Pam Samuelson class). Those prices don't include tax, at close to 9%. You can see why the few articles in the public domain matter to students who otherwise pay steep prices for readers. (And that's not including 4 books, which were another $300 for the semester, for a total overall including other materials, of $800, which is high for students on a fixed budget. And when you calculate student loans, which many of my classmates have, at $20k, minus fees at $6.2k, $1.6 for books, that leaves $12k to live on for 8 months in the Bay Area, the most expensive area in the country -- yes, when I was in NY last month, I realized yet again that NY is actually cheaper than SF. Boy is that weird. NY is always supposed to be more expensive, but no longer.)
On the other hand, Pam Samuelson's reader for our SIMS class last year was $22.00, the cost of the copy job, because she will not use materials that require a copyright payment (those not in the public domain). I respect that in a professor, not just because of the reduced costs. It's a nod to the public domain, in deed, as well as in theory.
Update 121803: Add Google's new print service (beta) to Amazon's print search service, and why make a reader, when you can just link to the two pages (chapter) in a book online. That's the way the memex - I mean internet is supposed to work.MORE...
Per JD Lasica, take a look at this op-ed from the SJ Mercury News on closing the internet off, by FCC Commissioner Michael J. Copps: Battle to control Internet threatens open access. It's quite a scary story, where basically, big companies are lobbying the FCC (and after the broadcast flag win, you know big companies feel confident these days...) to reduce FCC requirements that those big companies not restrict services to their customers. What is that double negative, you say?
Well, the FCC requires that networks stay open, and be non-discriminatory. Customers can access most anything, anywhere out on the free internet. But companies that want to control what content you see, what software you use, and would like to change the rules so that they can control the content you see or force you to use their software and services, and keep you from their competitor's sites.
- Think about what could happen if your broadband provider could discriminate. It could decide which news sources or political sites you could view. It could prevent you from using children's Internet filtering technology that it didn't sell or that filtered out its own Web sites. It could prevent you from using spam-jamming programs to block its spam. It could impose restrictions on the use of virtual private networks by telecommuters and small businesses to keep them as paying customers of the public network. It could limit access to streaming video to protect its core content business. Sound far-fetched? It's already beginning to happen.
It would be a nightmare to try to reverse this sort of thing in the courts and take many years, and might not be successful. Let's stop it before it gets adopted by the FCC. Remember when Michael Powell told us that it didn't matter about upping the media concentration rules because "the internet would save us" due to all the openness and choice present there? Well, kiss choice goodbye under this latest plan.
Here is John Walker's view of this issue.
Evidently, Jesse keeps referring God to the EFF.
(I'm working hard on finishing up a big project, and getting over the thing that apparently everyone on the west coast has... but I'll be back shortly.)
I think he was there to talk about the Creative Commons project generally, but since he has just been in Japan to announce CC there, and they are spreading around the world now, the radio show also focused on the new international IP domain they are changing with their work.
So Lessig reviewed the CC license structure:
-human readable "deed"
-machine readable for search engines
And talked about the choices people make when they pick a CC license
-Choice about attribution?
Turns out this is not so important to most users, but a few.
-Allowing commercial use?
-Allowing derivative works?
-Can people be as free with their work as you've been?
They now have more than a 1 million uses of their licenses, where the vast majority wants attribution and non-commercial is freely allowed.
Internationally, they now have 40 countries with creative commons licenses, however each country has a variation because each country's law is different. But the licensing structure is something like this:
-The legal layer is radically different depending on local laws
-Human layers will reflect this
-Machine layers will be universal layers, so equivalent to this (commercial use?) then it's X
Example, in Japan, doujinshi comics, where people take the comics and rewrite, is technically illegal as it is derivative work, under both Japanese and American law, but Japanese comic's lawyers leave it free of regulation because they recognize the value in the buzz created for the work.
Also, at the end of the show, Dr. Moira Gunn announced that all audio for tech nation will go under creative commons licenses.
James Grimmelmann has a really interesting piece on Gaming and IP, post State of Play. The Friday morning session had Second Life renouncing any copyright interest for anything its players make while engaging its games. At the session, Yochai Benkler (one of my heros! Because his voice is captivating -- he could read the phone book and I would listen -- but really because he thinks in such interesting ways -- just rethinking what he says, turning it and rethinking again -- I could do that for hours) asked about hurdles to creativity Second Life had placed within There, because he was confused about this announcement, in the context of these hurdles. James is now looking at the issues that question brought up.
One important other point James makes:
- Now, the immediate response that Rosedale supplied to Benkler's question was the Creative Commons one: Larry Lessig has offered us advice on this one. We're looking very seriously into rolling Creative Commons licenses into our code, so you can stamp an object as Creative Commons when you upload it. Benkler makes the same response to the idea of an in-game Creative Commons that he makes to the real-life one: a Creative Commons is a second-best substitute for a real commons. You're bringing in all the faults of copyright law, and then you make this jujitsu move, that we can somehow compensate for these faults. Why not give them true sharing?
This is exactly the problem I was describing about Creative Commons licenses the other day with someone, when we were discussing the short and long term issues with compulsory licenses. Basically, in the short term (a few years) CC licenses and compulsory licensing solve many problems. But longer term, as we do more with digital media, create more within digital environments (verses digitized analog media), develop digital communities with shared input on creative works, across many people and locations, I worry that we are putting a band-aid on something that needs a complete overhaul.
Basically, we need digital IP, digital copyright. And these solutions (CC and CL) are in many ways analog, with a little digitization. They don't truly reflect digital media's properties or issues, or reconcile how to give creators the right amount of control and compensation and ownership, and the public (and other creators) the right amount of access to the public domain, sharing, fair use and other concepts we have already acknowledged in the analog world as important balances to IP ownership, as well as collaboration and sampling, which will be central issues in the creation of digital works. And they don't give the flexibility we will need as increasingly, digital information development transcends our current analog metaphors, and our culture with it.
Anyway, excellent essay by James. Read it.
The Berkman Center at Harvard is hosting a day of discussion tomorrow on the Development of an Alternate Compensation System for Digital Media in a Global Environment. Among the attendees: Derek Slater, Ernie Miller, Ed Felten and Eddan Katz, as well as Harvard Law School Professor and Berkman Director William Fisher, who has "been investigating two possible alternatives to the current copyright system for addressing this crisis: a mandatory, state-run compulsory licensing system; and a voluntary entertainment co-operative."
Sounds really interesting. Speaking of CLs, there has been so much discussion over the past year on this, and the arguments have been all over the the map, the blogosphere, in traditional media and on various mail lists, and strongly debated, that at times it's been daunting for me to think about jumping in to comment.
But I've written a paper on CLs, located below, that is a reflection of my thoughts at the moment on this subject. My conclusion: that CLs will help us in the short term, with digital media, but long term, they may hold us back from developing new innovations for using digital media that are inconceivable today. And the burden of a new, giant copyright bureaucracy interested in perpetuating itself is also problematic, not to mention the privacy considerations, and the issues of controlling and keeping flexible such a powerful bureaucracy.
See also Ed Felten's post on these issues today.
PS: school's winding down but the workload isn't. Sorry for the spotty posting.MORE...
Teresa Riordan/NYTimes has this on the recent purchase (for $700k) of the Six Degrees patent, by Marc Pincus of Tribe and Reid Hoffman of LinkedIn. They say they purchased the friend of a friend (FOAF) patent because they didn't want anyone else buying it to use it against them, but they are also trying to negotiate with Friendster to become a partner/owner of the patent, though Friendster hasn't jumped in yet. Conversely, Visible Path is treating their processes for understanding people's network and connection habits as a trade secret, so that unlike patents where the process must be disclosed, Visible Path won't share how they do things ("We think that is a higher form of protection.") Visible Path says they operate differently than the Six Degrees patented method, because they evaluate the quality of FOAF connections verses the degrees between connections. At the end of the article, there is this prediction: "This industry [FOAF] is going to go in a thousand different directions," Mr. [Antony] Brydon said. "I think we're going to find that many of the things being protected today are completely irrelevant a year from now."
Somewhat related to that notion is this PC World article asking: will consumers change ip? Granted the examples given are the more commonly known ones such as the Verizon, et al cases with user's privacy in the balance over music sharing, but the question extends far further when you think about the ways we take technology, alter it or its intended uses or blend things never before blendable. Steve Lohr/NYTimes talks about this with Markets Shaped by Consumers where he discusses the ways consumers take technologies, find uses not intended by their creators, or cobble together solutions to problems in innovative ways. Among other things, he mentions the mountain bike, camera phones and text messaging, bluejacking, and FOAF networks like LinkedIn and Friendster.
The ways users shape IP via fair use, either directly by choice or because of the limitations through the architecture of the system they are using, and the issues surrounding consumer generated information, especially about themselves, raises questions of fair use and ownership of personal data and networks in a new way with FOAF networks. Note that this morning on NPR, Choicepoint was quoted as saying that in their system, users own their own data, not Choicepoint. And yet recently, Friendster changed its user policy to state:
- Friendster owns and retains all proprietary rights in the Web site and the Service. The Web site contains the copyrighted material, trademarks, and other proprietary information of Friendster, and its licensors. Except for that information which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information.
I take this to mean they believe they own the collective data, and without clear personal data ownership laws, I suppose we are subject to this, unless there is a case or new law that changes this arrangment.
Danah Boyd of SIMS was in last Thursday's Circuits section (by Michael Erard), and Peter Lyman is quoted, too. The article discusses the social issues and analog metaphors Danah studies about FOAF networks. While our analog FOAF networks are subject to social norms we can see, touch and control in different ways than those online, there are interesting issues in connecting one person's data and network to the next. Collapsing the analog social norms causes problems, when people from one network you belong to can suddenly see another digitally, but there is also an issue which will probably arise more in the future, where the blending of many user's information, both personal and created, or personal networks, creates something new. It is digital media in the most personal of ways.
So, my father's FOAF network (analog, of course) is extensive. He keeps in touch, even in retirement, with thousands of people, via written correspondence through email and letters, and for 42 years, has maintained a handwritten spreadsheet organizing the 3-4k handwritten xmas cards he sends out to his friends each year (there are more in his network but they don't necessarily receive these cards, and also, my parents visit with many of these people regularly, scattered around the world, for various reasons that are now mostly social). I don't know that Friendster or LinkedIn, etc., clunky as they are now, could accomodate or make sense of the multiple reasons and associated meanings of his relationships, or what is possible between his connections through muliple networks. But I'm sure he's never thought about who owns his data and networks, and the shifts over time these networks have experienced, and the information linking they accomodate. I'm sure he would find it bizarre but also interesting to contemplate that using a FOAF network might require this, where using one might release control over his life's work as one of the most networked people I know.
So I just met Harry Max (at a dinner for Dave Winer, hosted by Sylvia Paull. Aside: it was fun, and there was one, yes one! guy there who had never seen a blog. So Scott Rosenberg gave him an idea of what blogs are about and I suggested he start with JD's because JD has a lot of topics grouped, plus the blog roll to the left has a variety of people linked, with the little stars noting recent updates, and could get him to everyone else around the table including Dave.) So, Harry has conceived and founded Public Mind where users request some information or help or product, and then other users respond. They are either going to be huge in a month, or we will never hear of them again, he said. Though they have been in development for 4 years, surviving by twists and turns the tech blow out.
But my question is, how do you manage the IP? I mean, what if someone thinks up something they need (the mother of invention) and writes it up in great detail, and someone else answers it, matches it in effect. Who is the originator? Yes, ideas cannot be copyrighted, but the idea expression dichotomy argument could get another run here. As groups grow, and the group think happens (there are 7 users in that discussion), will they come up with something that is patentable or copyrightable? I mean, it's the best of digital media, the best of collaboration and finding needs and filling them with hopefully meaningful solutions.
But how do you do the IP?
Do you redo IP, when you realize the IP issues with digital media? Or do you redo the digital media side of things? So if digital media disintermediates power, and in this case, the power of the IP regime to contain our jointly conceived of and built product, across disparate nodes of people and information, then how do you contain the disruptive process for making digital media?
Scot Hacker/Birdhouse laments the coming fate of MP3.com, where Vivendi bought it, and plans to blow the database away, including all mp3s, video, cover art and anything else associated with artist's work (see the Register on this). Mike Robinson, founder and former CEO is pleading with Vivendi to allow Archive.org (of Brewster Kahle fame) to mirror it all, but that takes time, and Vivendi wants a clean harddrive by December 3. You'd think they could just forward the backup tapes. But then again, one wonders whether they realize they are in the information business at all with a plan like this (hello, we keep the information...).
Free, free freeeeee... not
Speaking of mp3s, John Schwartz/NYTimes looks at When Free Isn't Really Free: "... free isn't what it used to be, especially on the internet." He says web giveaways always bring problems like "computer glitches, frustration and loss of privacy and security -- not to mention the threat of expensive lawsuits for large-scale music downloaders." (That would actually be uploaders... but who's counting.) Add to those issues spyware, piggybacked on other software and used by companies to watch and report what users do, though the FTC has tried to stop companies from distributing it. Some companies, a few according to the article, can still make money with free models, but many others are doing other things, like utilizing spyware, to collect information on users to sell, to make money.
Aside: The properties of digital media are completely different than those in the physical world.
I must point out that the article itself in the paper edition has a collage of images supporting stereotypes of thieves and hucksters outlined by a computer screen, while the online edition has only one image of a thief shoving a silver platter into a pillowcase. While the written style of the article seems to be a collage of statements making a conversation similar to what topic bloggers do, and gets closer to a kind digital media composition, the associated images make me wonder if Schwartz sees this, because the artwork imagines such a misunderstanding of digital media, which is not at all analogous to physical property. Taking an mp3 still leaves the owner with the original, because digital media is about bits, and copies, but a silver platter represents something that is supposedly rare and somewhat unique.
Back to our regularly scheduled programming:
But it's Siva who hits the nail on the head:
- "There are costs built into every step of these media systems," said Siva Vaidhyanathan, the director of communication studies in the department of culture and communication at New York University. The money just does not go to record companies and artists. "What's really at stake here is who's going to get the money and in what-sized pieces," he said.
So if it's just a pricing issue, and people are pushed to give up the free because of computer hassles and fears about privacy and security, then:
- "It's not rocket science, it's not new math, it's not 'new economy,' " said Mike McGuire, director of media research at GartnerG2, the business strategy research group of Gartner Inc. "If people want this thing, they will pay a reasonable price for it - if it is reasonably priced and convenient, and it works when you hit 'play.' "
- The idea of small payments appeals to people on all sides of the debate. "Cheap is really the antidote to 'free with a lot of strings attached,' " said [Alan] Davidson [CDT].
Though the ensuing discussion (assembled much like a blog post; I've noticed that Schwartz's articles seem to be moving in this direction) between Jonathan Zittrain, Steve Jobs, Joe Esposito of Time Warner music, Davidson and McGuire put together by Schwartz circles the pricing and implementation issue, that, if solved, will let the music flow.
Now doesn't that really make you wonder about Vivendi's thoughts on the information business? Why not keep the MP3.com database around as we get closer to solving the micropayment and online music sales issues. I mean, identifying the problem is the first step to finding a solution, no?
ps, /. on decoding the algorithm to predict hit songs. There's even a scaled down version for aspiring song writers. This /. comment gives the algorithm for getting a modded +5 comment there. Lather rince repeat, rip mix spurn:
- SCO RULES!
Bill Gates is your friend.
I enjoy RFID!
I can't get enough of that Jon Katz!
Linux is for little girls.
Look at my newest casemod! I put a flashlight in there!
Hilary Rosen is a super-fox!
I peed in your coffee.
The Simpsons/Matrix/Starwars/LordoftheRings totally sucks.
DRM is the answer to everything!
I just patented food
So say Allison Hoffman and Tim Reiterman/LATimes. Voting machines purchased between now and 2006 will be replace or modified, and those after will be required to have it.
Derek Slater prevails over a one note policy; one note because it appears to have been written only with infringement in mind, where the infringment was about users taking copyrighted materials via P2P file sharing, and the materials were for entertainment, and not civic in meaning. While the policy does mention fair use, it does not mention any kind of circumstance like the Diebold memos. After posting the Diebold memos and receiving a C&D notice, Derek challenged the policy that his activitism would count as one strike.
- Today, Harvard's general counsel officially ruled that the University would not count my posting as an infringement. My record and Internet access are safe.
Derek suggests that the appeals process be reviewed and changed, to teach students about what this all means, and he intends to keep pushing for that. I must say I'm constantly amazed by Derek. He is inspiring.
ps, We may have to add cat_Slater, we've been mentioning him so much lately.
Actually Linkerator is my name for it, but I love it! (Linkerator reminds me of Willy Wonka.) NY Times links die after 7 days, but if you get a userland link, it will last forever, maybe -- we're taking that on faith for now. Though the userland links are only up on that site for a day or so until they are replaced with the next set of links. And saving links through your aggregator isn't always feasible. But Aaron Schwartz has made the most cool tool at his latest links site: The New York Times Link Generator. Basically, by putting in a regular NYT link from anytime after June 2003, his tool will generate a link (though I tried an AP article on the NYT site from last week and was out of luck, it seems to only work for NYT articles). But hey, it's the greatest thing since sliced cinnimon brioche dipped in egg mixed with cognac, sauted and served with maple syrup!
The bIPlog thanks you from the bottom of our hearts!
Dave Winer wrote yesterday about an issue for the 2004 election: Keeping the Internet free from Media Companies. He asked that Clark and Dean consider a plan to keep the Internet free from interference from the entertainment industry. Two reasons, he says, as he is a part of a constituency that cares about these issues, and that it would signal that a candidate was not beholden to media companies, both in the sense of locking down the future (I assume he means things like copyright, as well as laws that regulate the internet for special interests) and of having the media try to control channels they don't yet own (I assume here he means the development of new digital distribution channels that either are just getting started or haven't yet been invented, or technologies they try to lock out or control, like the consumer electronics industry developments that must now be approved by the copyright industry with respect to the Broadcast Flag -- See Zoe Lofgren's editorial today on these new restrictions on innovation by the FCC).
- Maybe his [Dave's] idea is, "Let Clark and Dean work it out. They're smart enough."
- The Internet is different from the phone network and radio and broadcast television in important ways... [like] "many to many" communication as opposed to the "one to many" communication of broadcast television. A student, an independent software developer, or a small high-tech company can come up with an idea for a new application, protocol, or kind of content. If enough people find it useful or worthwhile, this idea can spread like wildfire. Even as the Internet evolves, it is important to ensure that it continues to provide an open platform for rapid and decentralized innovation, and for the exchange of ideas.
Donna Wentworth links to Dan Gillmor who says:
- But Dave has framed the problem well. Keeping Hollywood's influence from wrecking the Net would, by extension, help solve the copyright disaster that's been building in America for decades.
Jeff Jarvis' not so sure: he's a big media guy, a blogger, and says,
- Dave, I just spent last weekend in big rooms filled with big media and, believe me, I saw little cause for alarm.
My thought: Maybe Dave didn't specify the exact problem, and he is very much in a partisan position (as he admits) with technology, but he does make a good point. Locking down the internet with DRM, like the just adopted BF regulations, as well as using the DMCA for all sorts of ridiculous anticompetitive and otherwise destructive stuff (think Chamberlain v. Skylink over garage door openers, Lexmark and printer cartridges, Diebold and voting software memos) that incumbents love to use to maintain their positions, and you can see why he cares about this. It's not that I think incumbents all should be undermined, but I disagree with an Internet that only protects them, and makes it hard for innovators to develop the digital technologies that will shift everything and create so much value, though maybe for a mix of incumbents and innovators. It's understandable that they are scared, because they have a lot to lose, but we all are participants in the internet, and there is a public good in keeping it open and free.
Lock the internet up, lock content down, and I think it will be less than 20 years before our closed internet loses to the free internet, still existing in the rest of the world, leading to the loss of US leadership and competitiveness in technology, content and innovation. Seems counterintuitive, and in the short term yes, protectionism is beneficial, but long term, it will hurt us badly.
But I'm not so sure this is something we can address in a presidential election, and Seth may be right, maybe this is an unrealistic discussion. But my hope is that as we forge further into the information economy, we will be able to address issues like this in a national forum, that people will understand digital issues enough that they will want to hear what candidates have to say about intellectual property, media, digital technologies and information flowing on the internet, because it means their jobs (and health insurance), their intellectual freedom and entertainment. But I don't think it will happen until the public asks for it. And many more people must become digitally literate before that happens.
- Karen Coyle: The Technology of Copyright: Digital Rights Management
The video of the live lecture will available from this page on Wednesday, November 19th from 10:00am -12:00 noon EST (in RealPlayer format).
(Is it just me, or there irony in a lecture about DRM, digital media and technological controls webcast on a proprietary format?)MORE...
Just imagine if you could do it for movies, games, photography and books. That kind of compulsory licensing would be awesome.
From Wired. It's simple, but useful (thanks to Denise for the link).
- Under Chamberlain's theory, any customer who loses his or her Chamberlain transmitter, but manages to operate the opener either with a non-Chamberlain transmitter or by some other means of circumventing the rolling code, has violated the DMCA. In this court's view, the statute does not require such a conclusion. GDO transmitters are similar to television remote controls in that consumers of both products may need to replace them at some point due to damage or loss, and may program them to work with other devices manufactured by different companies. In both cases, consumers have a reasonable expectation that they can replace the original product with a competing, universal product without violating federal law.
BIPlog has brought this up before. This is the case where Skylink made a third party garage door opening transmitter (you know, the little dark gray plastic thingy with a button that you keep in your car) that worked with Chamberlain's garage door opener (GDO, and it's the mechanism in your garage that actually moves the door open), after which Chamberlain asserted this violated the DMCA. Chamberlain uses a rolling code mechanism (meant to deter thieves) to make their GDO work with their own garage door-opening transmitter. Skylink makes many different transmitters that work with several manufacturers' GDOs. In this case Chamberlain said that Skylink's accessing of the rolling code was in violation of the DMCA anti-circumvention provisions.
... according to Jonathan Salant/AP.
By July 1, 2005, digital TV receivers have to recognize the BF signal.
- FCC Chairman Michael Powell said his agency was taking "an important step toward preserving the viability of free over-the-air television."
I'm confused. How will this order (pdf) keep over-the-air television viable? Won't this require everyone to have cable or satellite? Otherwise, record over the analog VCR, record to digital on your video camera, and voila? This will only stop consumers from regular uses they currently enjoy, but the pirates won't be stopped.
- The deadline would be in advance of the congressionally mandated goal of 2007 for all TV broadcasts to switch to a digital format, which uses computer language, from the current analog format, which uses radio signals sent as waves. After the switchover, consumers who don't subscribe to a cable or satellite service would need digital tuners, either inside a TV or in a set-top box.
Digital tuners go for around $200, HDTV for around $750.
- "We would like to be talking about how to best protect over-the-air content rather than rush 1,000 miles an hour to approve a solution that isn't going to work with technology we haven't seen for a problem we don't yet have," said Chris Murray, legislative counsel for Consumers Union, the publisher of Consumer Reports magazine.
I guess we did want a solution that doesn't work using an unseen technology for a problem we don't yet have, that will cost consumers a lot of money, to satisfy incumbent content owners who are insecure and have little vision. My mistake.
Update 110603: Ernie Miller has found what looks like a loophole in the BF FCC order, Ed Felten has this: The Broadcast Flag, and Threat Model Confusion and Seth Finkelstein has this: Broadcast Flag - desecration, (with this choice quote: "Do not remove this flag under penalty of law.")
EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are seeking a court order against Diebold. Diebold, the maker of an eVoting system that many a Registrar have purchased, including our own Alameda County, has, as noted here before, lost control of some internal memos (someone hacked into get them). Diebold has been serving C&D's (Swarthmore, as well as one here at Berkeley, and Derek Slater/Harvard received one) to ISP's of hosters of the memos, and students have been protesting, because they, we, believe Diebold is in the wrong in trying to suppress information about security flaws in the eVoting system. The memos are all over now, and on file sharing networks. Diebold has even claimed DMCA copyright violations for those linking to the memos. And finally, after two+ weeks, big media is paying attention.
Update: Declan McCullagh/C|Net: Students buck DMCA threat. Also, Parker Thompson has started blogging with Minfesto. He's one of the students posting Diebold memos, and has this: Brittney Spears Don't Vote. Parker also writes that California is reconsidering Diebold's touch screen system. In particular, check out this CA Task Force Report (pdf) on the systems. Glad to have you in the blogosphere, PT!
Update 110403: Siva Vaidhyanathan has this on Diebold: voting problems in Houston, and a write up on Brian Lehrer's public radio story. He says that the story was poorly done, with a National Journal reporter as the expert interviewed. I just read the CNN/AP article: California delays certification of some electronic voting machines, and found it missed the context of the past few weeks, where students at various schools have been mirroring the Diebold memos and keeping this issue out front, at some personal risk, which I think has helped push questions of Diebold's security. When media point out that younger readers don't read papers anymore, and then I see this, I think, why should younger readers read the paper, when their involvement it totally left out, or when it is included it's often dismissive in tone of those covered (I do know why they should read papers, but still, you get my point). This is not always true, and certainly Declan's article is not written this way. But really, if you want readers of a certain demographic, think about including them, because they are apart of the story!
- Acting on legal counsel, the Swarthmore administration has advised students on the process for filing under the copyright law a "counter-notification" against Diebold's take-down demand. In addition, the administration has alerted students that it is defensible on fair-use and free-speech grounds to use their web sites to describe the content of the memos they have seen and their implications for American democracy, and to use their sites to inform interested members of the public that the memos are available at sites not associated with Swarthmore.
Also, Wired News chronicles the eVoting issue with Diebold, and the Swarthmore and other University student action, including UCB students.
- @info:/logs/ -> grep "lists\.tgz" access_log | grep 29\/Oct | wc
445 4450 45669
See More below for the top level domains....MORE...
- Yea, that's right, go on kazaa and type in Diebold and you'll find the mail....on over a hundred different hosts with quick speedy downloads to par!
- Same's true for all the p2p apps, even the waste network I'm on! Sorry Diebold, I'm not gonna stop hosting your memo's until your entire goddamn corperation is taken down and the lie is revealed.
Diebold, meet Metcalf.
Here. Looks like they are allowing the circumvention of obsolete computer software and games, eBooks for disability purposes, and a little bit for censorware (see Seth Finkelstein's post on his win! and Ed Felten's explanation on this) and damaged dongles. The rest, for commentary and fair use with DVDs, Cds, etc. and for information security research were not accepted.
- -16- Proposed class: Public domain works or works distributed without restriction.
- Several comments sought an exemption for works that are either public domain, open source or "open access," but to which access controls are applied. The commenters addressing open source and open access works provided absolutely no information in support of their requests. Aside from a proposal relating to public domain material on DVDs, there was a paucity of information relating to other public domain works. These commenters have overlooked that if a work that is entirely in the public domain is protected by an access control measure, the prohibition on circumvention will not be applicable. Therefore, no exemption is needed.
- In the DVD context, a proponent provided a series of lists of audiovisual works that it contended are in the public domain, some of which it alleged are distributed bundled with copyrighted material. However, opponents of the proposed exception indicated that many if not all the works named by the proponent are available in unencrypted (VHS) format, are not bundled with copyrighted material, are themselves still subject to copyright protection, or are not encrypted by the Content Scrambling System ("CSS") or otherwise subject to an access control, effectively rebutting the proponent's showing.
- It occurred to me that the FCC's ownership rule making also provides a significant argument against the flag. Chairman Powell repeatedly asserted that over the air televsion is merely one small part in a large, competitive media market. It has to compete with print, radio, and the Internet. Well, if it's such an insignificant industry, then why should it get to determine policies for the entire tech industry? I'm not necessarily saying that I agree with the ownership rule changes; rather, I'm saying that the FCC has already stated that broadcast TV shouldn't be treated specially.
Washington sources said the resulting barrage of consumer lobbying has been heard at the FCC, and has helped influence commissioners' deliberations.
So, keep sending in the notes! Here are the links to EFF and Digital Consumer.org's templates... write something of your own and email it in! My note to the FCC is in the "more" section below. Feel free to copy or riff on it; it's no rights reserved as usual!MORE...
Though you should note, there has been some push back from the Author's Guild regarding Amazon.
Kim Zetter/Wired: A Case of Piracy Overkill.
Steven Labaton/NYTimes: Critics Press Case on TV Piracy Rules.
Farhad Manjoo/Salon: Hollywood to the computer industry: We don't need no stinking Napsters!
- The MPAA is counting on your apathy. It's precisely because the flag seems, on the surface, so innocuous that the studios are having an easy time pushing it to regulators in Washington. And the regulators are biting: According to close observers of the process, the Federal Communications Commission will soon adopt a rule requiring all technologies capable of receiving digital TV signals -- everything from HDTV sets to DVD players to general-purpose PCs -- to recognize and protect flagged TV shows.
- If adopted, such a rule is sure to cause a great deal of hand-wringing in the PC industry, which is, increasingly, counting on the convergence between entertainment and computing to push sales. The last thing hardware manufacturers want is for Hollywood to be able to legislate how computers are put together. According to people familiar with the rule the FCC is pondering, the broadcast flag would force all computer companies to make a stark choice: Either add digital television capabilities to their machines and then, as some critics of Hollywood say, "weld the hood shut," making sure that everything else in the PC -- the DVD recorder, the hard drive -- is sealed with copy-protection, or stay away from HDTV altogether, sacrificing sales.
The MPAA Q&A on the BF.
Update: see Ed Felten's post on BF Confusion in the NY Times article above.
That really has nothing to do with this post, but we seem to be having one. It feels like it's 85 degrees F outside, there's a hot wind blowing, and the smell of smoke and burned leaves drifts down from the hills, the kind of air we get before the hills ignite or the ground slips (that second one is a myth, but people here always say it, because we had a big quake in one of these spells).
- "This is potentially the first real FCC step into regulating the Internet," said Ed Black, president of the Computer and Communications Industry Association. He said the FCC is moving too quickly and without public hearings on an issue affecting many millions of people.
Remember Ed Black was on the BF Panel last spring at the DRM conference, where he cautioned 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.
- "This is the first step that leads to trash dumps full of obsolete technology," said Chris Murray, an attorney for Consumers Union, publisher of Consumer Reports magazine. He said the FCC is working on "a solution that isn't going to work, with technology we haven't yet seen, to a problem we don't yet have."
- As a technical matter, these [MPAA] claims are simply incorrect -- a significant investment of time, effort, and expense is required to capture and redistribute DTV signals in this [over the internet] manner. I call the Commission's attention to these errors because the erroneous assertions underlie MPAA's entire argument in favor of regulatory action by the Commission.
Note in the earlier Piracy Meter post, Informa Media states that they don't believe movie piracy will be pervasive in the US until 2020. It's still worth contacting the FCC, and easy, using either Digital Consumer or EFF's email template. Take a minute, and write a couple of your own words into the template.
Ernie Miller has been valiantly documenting and following this case, where Swarthmore College is going after students who link their websites to leaked Diebold memos (on the Why War? site) about the problematic security in their voting systems. Frank Field: Diebold has been responding with notice and takedown notices on a site-by-site basis, leading to an extended game of "whack-a-mole" that Swarthmore is now intervening in by taking away web access to any student linking to the site.
Update: Seth Finkelstein comments too. And though I didn't explain the reason Ernie's efforts were valiant, I probably should have. If you read his posts, he managed to track down various Swarthmore students, as well as several calls to get to the IT department guys responsible for this, to do a little citizen reporting. Good blogging too!
The "thing" was reported to be too scary to show in the ad, according to the movie producer, but it turned out to be a cute moth Godzilla was trying to kill. Kind of like the way the MPAA portrays fair use, doncha think?
So, Chris Murray, Legislative Counsel of Consumers Union, Mark Cooper, Dir. of Research at Consumer Federation of America, Mike Godwin, Senior Technology Counsel at Public Knowledge and Jonathan Rubin, Research Fellow at American Antitrust Institute have written a letter to the FCC on the BF. Their three major concerns:
- 1. After the flag is adopted, will consumers have the same reasonable and customary uses with their digital television content that they enjoy in today's analog world? The proposal offered by the Motion Picture Association of America makes clear that the Flag scheme will tether user-recorded content in new ways. It will not allow consumers to watch that content on machines other than new, compliant devices (but it is unclear if it will permit recordings to be shared within a user's own "personal digital network"). Not only will current DVD players not be able to play the recording, but if someday more than one encryption technology is approved, recordings made with one technology probably will not play on players licensed to decrypt the other, absent an interoperability requirement from the FCC. Let's be clear: while the MPAA has offered assurances that users will have the same flexibility they currently enjoy, they have demonstrated no technology which shows this is indeed possible.
2. If the Flag scheme does not effectively prohibit internet transmission of recorded programming doesn't it follow that the scheme may fail to prevent the problem at which it aims? For example, if users can play flag-protected content on any compliant device, it may be possible to transmit the encrypted data recorded on a DVD for a recipient to use on a remote compliant device. Or it may be possible to post a complete "compliant" DVD image on a website. Certainly, an individual could record on broadcast content from an analog output, and then simply distribute that content to another user over the internet. So much for defeating Internet copyright infringement.
3. Because the Flag is ineffective without mending the "analog hole," then is it perhaps not worth its costs? Shouldn't the Commission consider the costs and benefits of closing the analog hole in the context of this proceeding rather than some future proceeding. As Chairman McCain noted in his letter to the Commission on Oct. 16, the Broadcast Flag is an incomplete, and therefore ineffective solution, absent a solution to the "analog hole." We agree that we cannot let the perfect be the enemy of the good, but lack of any analog-hole solution means that the broadcast flag scheme doesn't even qualify as "good." Nor can such a non-solution be worth the costs it would impose broadly on the consumer electronics and computer marketplaces.
Earlier, I mentioned the Piracy Meter, defined as a gage for rating movies. If I pirated movies (which I don't), I'd rate them as to what's worth clogging my dsl connection for 24-36 hours to get one.
Well, it looks as though in a backhanded way, Variety has decided the Piracy Meter is right on target. No, they didn't mention the Piracy Meter directly (but I'm sure if they knew about the Piracy Meter, they would have!). Only Ernie Miller did, suggesting a quality scale. But Variety did say that "Illegal downloading of films via the Internet may not be the financial catastrophe many fear, at least not for some time." In other words, they say that according to a new study, "Films on the Internet," the movie biz has been more in touch with their customers than the record industry (not hard to do, but still), offering movies at a reasonable price (often the same or less than cd's), and been awfully nice about getting them to the Internet (via Movielink or other distribution channels like NetFlix...) or just distributed generally. In addition, movies, even poor quality versions, take a very long time to download, even with a high speed connection.
And so therefore, piracy of movies shouldn't be much of a concern; rather,
- the "...Study, from U.K-based Informa Media, concludes that, Hollywood and other film copyright owners have far more to gain through legal streaming, online subscription, e-tailing of discs and other legit downloads than they stand to lose.... But the sector's main advantage so far is speed and infrastructure (or lack thereof). Online film piracy will only reach the problem level that the music industry is suffering when most homes have super high-speed fiber optic connections, and that's not likely to be pervasive before 2020".
Not to mention, the study says the movie industry lost an estimated $92 million to online piracy last year, compared with $3.5 billion from hard copy piracy. (This may have something to do with their announcement to rescind the Oscar screener ban, mentioned earlier.)
So you know what that means. The Piracy Meter will have persuasive value until possibly 2020, when the last AOL subscriber has finally dumped them (they don't call 'em 'almost online' for nothin'). I love a good scale. What's two thumbs up? You're just sticking your fingers in the air. But sacrifice for art, that's got meaning.
Starting off, as mentioned before, Kill Bill = 1 star and Lost in Translation = 5 stars. But just so you know where I stand, looking over at the DVD collection, I'd also spend 36 hours, or 5 stars, on Tokyo Drifter, The Apartment, Bullitt, The Wild Bunch, American Beauty, Swept Away (the original), Reservoir Dogs, A Woman Under the Influence, Days of Heaven and Carnival of Souls. Oh, and La Dolce Vita. That one's worth at least 48 hours of sacrificed bandwidth.
How DRM Based Content Delivery Systems Disrupt Expectations of Personal Use has just been published by John Han, Aaron Burnstein and Deirdre Mulligan (of the Samuelson clinic; disclosure: I'm a member too). Really interesting analysis that John will present at the DRM '03 conference next week.
They try to get at how closely right's expression languages reflect copyright law, and how people's expectations for different medias not always reflected in the DRM on that media, and how the media type may frustrate user's expectations for fair use. For example, people have only experienced DVD's with CSS as the DRM, so they don't expect to be able to say, send a DVD made for Region 1, to their relative as a gift, who lives in Region 2. On the other hand, with music, and CD's, people have grown accustomed to making a copy of a CD they buy, for the car, the computer, etc. They want that same functionality and ease with future DRM mechanisms, and are confused and upset by the loss of those fair use rights.
Also noted are how CD related DRM protections haven't flowed with people's expectations, while the CSS protection for DVD's has flowed with the grain of people's expectation, but then they map the use of the media with those protections visually against (the four broad, non-exclusive factors courts consider for) fair use for those medias for space and time shifting. They compared them to other media relationships and expected uses, and against what they thought of as the "indicators of personal use": device and format portability, experimenting and the extent of relationships between users and copyright holders. The results are disheartening.
DRM limitations include a distinct lack of portability. Also, people's expectations were very frustrated by the lack of ability to experiment with the media or services they looked at. An example of a comparison movie was a streaming movie, where every time the user wanted to stop the movie (for a bathroom break, a snack, phone call), they had to re-ask for the license, and so felt that this went against their privacy expectations. They didn't like being tracked this way. One thing the paper notes is how different the motivations are for copyright holders, who may want to monitor every copy, see how it used and track starts and stops, verses distributors, who just want to monitor the point of sale.
Also, they noted how DRM can stop some behaviors, especially fair use, can circumvent the warrenty or access processes, and can have legal ramifications for users under the DMCA, the Computer Fraud and Abuse Act and various state laws.
Their conclusions: users won't switch to medias with overly-excessive DRM; content pirates certainly won't switch, but expectations may change over times. Also, terms of service agreements should reflect the actual DRM terms so users can make informed choices. And, the biggie: DRM supplants people's expectations of fair use, and doesn't reflect realities of fair use, based on the specific restrictions they reviewed.
Good stuff. Give it a read.
The bolded sections of the CDT's findings below (in the last post) seem unrealistic, because I don't think the FCC will make the revisions CDT notes are necessary to make the BF more fair and reasonable. I do respect the CDT's even handed approach to this issue, but I am worried that the perception of this report held up by the copyright industry will be: "CDT thinks the BF is okay with a few tweaks." There are serious problems with the BF, and in the end, it's not a balanced technology, because all the benefits go to the copyright industry, with the public and other industries like consumer electronics heavily restricted, with no benefit in return. Remember, copyright is a monopoly given to a creator in exchange for fair use and other rights. Take those rights away, and there is not much of an exchange.
Joe Hall posted a comment on this, but I wanted to put it up top. The CDT just released this report: Implications of The Broadcast Flag: A Public Interest Primer [pdf]:
The "broadcast flag" proposal -- a combination of technical standards and federal regulations designed to curtail unauthorized redistribution of digital television broadcasts -- has emerged in 2003 as a focal point in the digital copyright debate. The broadcast flag system is now the subject of a major rulemaking proceeding at the Federal Communications Commission (FCC). Observers expect pressure for protection of digital video content to mount as the
U.S. moves steadily towards the transition to digital television called for by 2006.
Major findings of this report include:
• Protecting copyright in the digital age is important for both consumers and content owners; failing to protect content can have major implications for the availability of high-quality programs on new digital media; and genuine fears have been raised about unauthorized redistribution of unprotected digital TV.
• Proposed broadcast flag regulations, currently before the FCC, create many
legitimate concerns for television viewers, Internet users, and industry groups. As drafted they may restrict reasonable uses of content by viewers, hinder innovation, and impose costs that are not worth the limited copy protection provided.
• Revisions to the broadcast flag proposal could help address many of these concerns, primarily by creating more clearly objective and focused functional standards for the devices and uses that will be permitted by flag regulations, and by creating a more open and accountable process for certifying permitted technologies. (emphasis mine)
• Even with those improvements, the flag proposal poses unresolved issues regarding technical regulation of computers and the Internet by the government, the impact of the flag itself on innovation and future consumer uses, and the definition of "fair use" and other copyright doctrines in the digital age. It also leaves other serious copy protection problems for television content unresolved. (emphasis mine)
• Whether the FCC adopts the broadcast flag approach or not, the combination of copyright enforcement, new economic models and digital delivery mechanisms, and consumer education hold out great promise to have a broad, long-term impact on copyright infringement online.
Also, Ed Felten analyses the BF. And Donna keeps up on the BF here, and here, noting Fred Von Lohmann's observation "...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."MORE...
Paul Davidson/USA Today on the broadcast flag: "Our belief is that digital TV will be far more restrictive," says Joe Kraus of DigitalConsumer.org.
Also, I am feeling uncomfortable about my previous post on BF, where I said it might cost up to $750 to upgrade to digital. To get more specific, an HDTV would cost that much, but an HDTV receiver for your current TV would be $400, and digital tuners are around $200. My point was that on top of having the content industry dictate to the electronics' industry what they can make, now and in the future, and what consumers can do with content, like the way we record it for time shifting, there were no benefits for consumers, and in fact many other costs like the required upgrades and the eventual requirement that everyone move to cable reception. Remember the last panel discussion at the DRM conference last spring, where Fritz Attaway of the MPAA said:
HDTV receivers are going to have to be able to process protected content. And that's totally separate and apart from the Broadcast Flag issue. People are not going to invest in an HD receiver only to watch over-the-air broadcasting. They are going to want to watch cable, they are gonna want to watch satellite, gonna want to watch DVDs, they are gonna want to watch premium content that is protected. All the Broadcast Flag would do is to say that off air content has to be rooted through a protected interface that is going to be there anyway because it needs to be there to render all of this other content that will be protected and consumers will not be able to watch, unless they have a device that can handle this kind of content. So there is no additional cost. The protection has to be there anyway to receive the other kinds of content.
Big assumptions there. First of all, not everyone is going to buy an HDTV set naturally, but if pushed unnaturally, they may be forced to some digital alternative, because they have no choice. And these digital solutions are not cheap. As noted in the pricing information about, there is additional cost. Most people now do not have HDTV sets or digital tuners (20 million as of last April, 2003 had it). It means that the majority still have to go out and buy it. Secondly, not everyone buys premium content (20% of US households are over-the-air consumers). And thirdly, the BF will be there "anyway because it needs to be there to render all of this other content"? Huh? Why? It only has to be there if Attaway, et al, gets the FCC to force it. It doesn't have to be there to render content. Content doesn't have to be digital, some could be digital and some could remain over-the-air analog.
I think he is arguing as though this is a foregone conclusion when it's not.
And what's the trade off? What do consumers get in exchange for these burdens, and what does the electronics' industry get, for becoming subservient to the copyright industry?
The broadcast flag presents many problems, and no benefits for consumers and users. As Derek Slater said yesterday: Burn the Broadcast Flag! Email the FCC and your representatives! Use Digital Consumer's or EFF's links (and remember to write your own words. This really matters and your legislators and FCC reps will take it seriously if you show you care about this by putting things in your own words.)
BTW, this is OT, but speaking of dirty tricks by the movie industry, I went to see Kill Bill the night before last with some friends. We agreed it was stylistically captivating, and had some great humor. Very retropolitan. But where's the plot? Girl is mad at the people who tried to kill her, so she invokes Matrix Redux-like revenge on them? Where are the characters? How do we care about the Umatino, when we don't know how she knows Bill, the grotesquely altered Daryl, or the rest of the murdering crew or what gives with the baby? Why should we care? What's the hook? It's kind of insulting to have us pay for a movie, and presume that the plot and characters, the second half of act II and all of act III will come later, when we pay for the second movie. Geez, man, throw us a bone here. 1 Star on the piracy meter.
Lost in Translation was so much more satisfying. Cool to hang in Tokyo for a bit, in an fantasy movieland kind of way. Characters, glitzy atmosphere, slow but interesting plot. I'd give it a 5 star on the piracy meter.MORE...
John Schwartz/NYTimes are reporting that the music industry has decided to warn the next 204 lawsuit targets:
Cary Sherman, president of the RIAA, said "we want to go the extra mile and offer illegal file sharers an additional chance to work this out short of legal action." This new policy was announced at last month's Senate hearing. Senator Norm Coleman (MN) said he wished it hadn't taken hearings to bring this sort of consideration about. Now how about considering judicial review for all subpoena's for user information for those they intend to sue?
In the meantime, Epeus Epigone talks about Steve Jobs' comment about iTunes "editing tactics": At the iTunes Music launch, Jobs said something very wrong - that record labels should be the arbiters of taste - that they edit for our own good, and that unsigned bands need not apply.
The key point of digital media is that we can all edit, so I edited him: video file.
It's interesting, because we all know, time and again, that attempts to control or limit the network result in loss of business. And then you leave yourself wide open for disruption. Biz 101. It's not like the Internet offers huge barriers to entry for offering interesting music over a website. And considering Microsoft's Q&A (and other media offerings) on iTunes (I'm shocked to hear MS is down on iTunes - kinda snarky, even) after they've added Windows support, (link from Ernie Miller), Apple could remain more competitive by embracing the rip, mix, burn philosophy once again, allowing any music into iTunes, regardless of whether it was produced by an RIAA affiliate. What would it cost them? Very little. It seems anticompetitive as well. Is this the result of some exclusionary agreement between Apple and record companies in exchange for industry music? It would be interesting to find out if Steve's spin on "editing" out the smaller music is actually about appeasing the music industry. Hey Steve, innovation is cool and it leads to more cool stuff, like the Motorola C350, where you can mix your own dance tracks anywhere for Groov'n On The Move.
Remember, if they force the broadcast flag on everyone, it will force digital TV, in order the make the flag effective, which means up to $750 per TV in upgrades or a whole new TV, and that means everyone has to get cable. No more over the air broadcast (but you -- the last 20% of American households that don't have it -- can pay up there too, if you haven't so far, by being forced to subscribe to cable). Oh, and just in case you're curious, there was a KTVU Ch2 story tonight on cable consumer costs that said Comcast has raised prices this year more than 6 times the rate of inflation (and this story was provided free, over the air! but later you'll have to pay for that too). And then, imagine the landscape with the latest FCC rules on media consolidation. Also, do you really want to pay so much more for HDTV, and actually get less functionality than you have now with your current TV?
So a very few media companies make all the content (check out Stephen Labaton/NYTimes on breadth (or lack of breadth) of media choice), own all the pipes, and then with the broadcast flag, will dictate to consumer electronics companies what devices they can make now to play/watch/use/record that content, and in the future (imagine the loss for innovation, because the content industry is dictating that, too with the broadcast flag). I'm thrilled. Are you? How about a reasonable balance between the content/copyright industry, and the rest of us? Remember, the monopopy we grant creators is in exchange for fair use rights like time shifting TV. This proposal only benefits the content industry; there is no trade off to benefit consumers.
EFF suggests you write, call or email your reps: here and Digital Consumer has this here (please think about how you feel and put it into your own words, because that is most effective in communicating to legislators). And Donna Wentworth, Frank Field, Dan Gillmor, Ernie Miller ("Any rule that mandates DRM is giving too much control to the entertainment industry.") and JD Lasica explain further what's wrong with the above scenario. Plus Frank links to a January article by Biz Week that talks about using tools like the Broadcast Flag to spy on users.
The bIPlog has a funny start date, because we came out of a class that started in late August, 2002, but the site didn't go live until November 15, 2002. However, we did entries starting in September internally, but didn't make all of them live in November. My first published entry was ago year today. So I'm noting it's been about a year.
Blogging, and making conversations with others writing in the same topic space, iterating knowledge and developing relationships, have changed everything academically and professionally for me, introducing me to outstanding people, getting to know them first by their writing, then in person. Every time I meet one of these bloggers, I delighted by who they are live. The bIPlog is an outlet for my thoughts on IP, security, privacy, media and distribution ("bip-log" is so much more fun to say than bIPSPMDlog, don't you think?).
The bIPlog was the basis for a paper Ethan Eismann and I did on best practices in blogging, using the bIPlog community to think about these issues. It was presented at the BlogTalk conference in Vienna in May. A couple of panels were prompted by the start and finishing of the class, as was some interesting press. And as a result of bIPlog, more of my academic work looks into blogging, traditional and participatory journalism, P2P information networks and social networks, for iterating knowledge and trusting information, both in terms of building systems and writing about them. And of course, IP, security and privacy are an ongoing study leading to papers, articles and research. It's also been fun getting slash-dotted and writing stories with interesting expressionistic linking.
bIPlog and the folks I've met and worked with through the blog have been transformative for me (plus I like them all so much!), and I hope our blogging discussions will help us change these policies for a more fair balance between intellectual property owners and the public. I can't thank enough Scot Hacker (master of the JSchool blogging universe), Paul Grabowicz and John Battelle, for having the class, the other students, and my fellow bloggers who teach me so much every day.
Donna points to this:
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."
Earlier today I mentioned Alex Halderman and his paper (pdf) on the CD protection scheme developed by SunnComm, which can be cracked! yes cracked, by holding down the shift key while putting the disk into your computer. Well, Donna writes that SunnComm is taking legal action against Halderman because he has based his paper on "erroneous assumptions" and because he has violated the DMCA.
"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 SunnComm 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."
Really? How about the copyright balance, where things like fair use (and the right of first sale) are involved? We are talking about a copy protection that will be sold on lawfully purchased CDs, that users might want to play on their computer CD players. Is it fair use to space shift? While this question has not yet been definitely answered by legislatures and courts, a private company is effectively answering that for us.
More From Donna/Copyfight:
Later: 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)."
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 EFF and other organizations will raise a defense fund; I'll contribute."
I decided to call SunnComm directly and complain about their abuse of the First Amendment and academic research: 602-267-7500. While they have the DMCA on their side, does not mean is it right for them to stifle academic freedom or the right to publish. The law is wrong here, as are SunnComm's actions. Where does this leave us if research is squashed, and information such as this just ends up being passed around, from user to user, with no research or writing done on these DRM systems. Where does that leave cryptography research? I am not advocating the mass breaking of laws, as researchers need to be sensitive and professional in their work, but there is something very wrong with the DMCA when this kind of thing happens.
Paul Krugman gave a talk Friday at the JSchool about being a columnist on international affairs and economics (the link to his other second talk at Haas on video is here, on the War in Iraq and the US Economy).
Krugman talked about how he became a columnist for the NY Times (he started with some less academic pieces, got published in Slate and Fortune), and what they asked for, which was commentary on business and economics. He said that in the beginning, he knew that every administration fudged the truth, or slated or spun things their way, but as he researched over time, he saw that the current administration out and out lies about many things, and much of his discovery of these lies occurs because of his work with public domain materials and information.
In writing his column, he does not use inside players or "unnamed sources" or even the "scene" in Washington to inform his work directly because he doesn't know any of these people and doesn't want to cultivate these kinds of sources. Instead, he goes to places like the Office of Management and Budget (or the California equivalent in prep for his recent analysis of the California Energy scam/Enron), and talks with economists and academics, and gets public information in the public domain. Then he does some analysis, or calculations, or reading of foreign press or whatever other materials are necessary to understand the information he is working with and then writes his column.
While this isn't the usual type of public domain use the biplog addresses, it was a nice reminder of the kind of uses the public domain has, that are very important for citizen analysis of public works and public officials. Thank goodness information of every sort produced by our government are required to have no copyright and to be a part of the public domain.
Today! Look here, or here for Berkeley locations (they are not all Starbucks thank goodness - I can't stand the coffee there - you'd think with all that dough, they could figure out how to make a good cuppa coffee; maybe they should give Illy a call...), for info and maps of free wifi access.
Copyright, in comparison, has an enddate, even if it's way past the author's death. But Trademark? It's like a Tiffany Diamond®. The love may be gone but you'll always have that diamond. And wouldn't you know, the Dewey Decimal system is just as sexy, reliable and oh so monetizing. What? Dewey's like a Tiffany Diamond®? Why yes, and possibly better. Because Dewey just keeps on paying.
Melvil Dewey created the system in 1873, and the Online Computer Library Center (who has owned it since 1988) licenses it to 95% of the school and public libraries in the US (makin' Microsoft proud!) for a minimum of $500. All those librarians over the past 130 years have contributed to it, making the system better and adding new categories, but the OCLC, a non-profit keeps the dough. And they have absolutely no incentive to put it into the public domain.
So, boys and girls, today's Intellectual Property parable is about The Library Hotel, which overlooks the NY Public Library. The Library Hotel is based on the theme of the Dewey Decimal System, so you know, floor eight is about erotic lit, seven is performing arts, just like those in the 800 and 700 series in the library. Anyway, the hotel used the Dewey system for their theme, and well, now lawyers are involved, suing for Trademark infringement.
"I would term it straight-out trademark infringement," said Joseph R. Dreitler, a trademark lawyer with the Columbus office of Jones Day, which represents the Online center.
"A person who came to their Web site and looked at the way (the hotel) is promoted and marketed would think they were passing themselves off as connected with the owner of the Dewey Decimal Classification system."
God forbid! But then again, I'm not so sure about that. I can certainly see the difference between the Dewey Decimal system, used in libraries, and the hotel, with pictures of lovely beds and bedding on their website. That I know of, no actual library is offering me expensive sheets and towels to read their books. But just the same, don't mess with that trademark!
Just do as momma told you, go out and trademark something everyone will use, depend on, and bonus! update for you, and voila! You and dozens of generations of your progeny can kick back and enjoy. And remember, copyright's a loser because it ends. Okay, not in your lifetime, but three or so generations later. But trademark is your ticket to endlessly generated wealth! It's the inheritance that just keeps on giving!
Update: The NYTimes on this story.
Frank points to this terrific article by one of my favorite science fiction writers (I loved the Alvin series!). He's a great writer and this piece is on his website, but is also published as what looks like a weekly column in The Rhinoceros Times, a newspaper from Greenboro and Charlotte, NC. Great stuff:
MP3s Are Not the Devil
Since every penny I earn depends on copyright protection, I'm all in favor of reasonable laws to do the job.
But there's something kind of sad about the recording industry's indecent passion to punish the "criminals" who are violating their rights.
So it's pretty hilarious to hear record company executives and movie studio executives get all righteous about copyright. They've been manipulating copyright laws for years, and all the manipulations were designed to steal everything they could from the actual creators of the work.
And rental videotapes! That was the end of the world!
When the studios finally stopped charging ninety bucks for a videotape, they discovered that the videotape (and now DVD) aftermarket was often bigger than the original theatrical release.
The internet is similar, but not identical, to these situations.
First, most of the people who are getting those free MP3s would not be buying the CDs anyway. They're doing this in order to get far more music than they can actually afford. That means that if they weren't sharing MP3s online, they would simply have less music -- or share CDs hand to hand. It does not mean that they would have bought CDs to get the tunes they're downloading from Napster-like sharing schemes.
That's why I laugh at their estimates of "lost sales."
Check it out! I can't wait for part two of this series.
and SBC says it won't name names in file sharing cases (Seth Schiesel/NYTimes). "We are opposing these subpoenas because under the R.I.A.A.'s interpretation, they are a threat to consumer privacy and safety." (from SBC spokesman, Selim Bingol) They are the only provider holding out.
"We are going to challenge every single one of these that they file until we are told that our position is wrong as a matter of law," James D. Ellis, general counsel for SBC, said yesterday in a telephone interview.
Good for them. The subpoena process is a big problem as specified under the DMCA.
Ed Felten is going to be testifying tomorrow morning in a Senate Commerce Committee Hearing about both the subpoena process, as well as the impact of requiring the building of anti-copy protections into technology.
Catch the webcast of the hearings at 10am Wednesday!
Update 9/17/03: CDT has their hearing testimony up about the subpoenas....
Here's a thought, what if because of the way the internet works, and file sharing of content, the music industry morphs into something that essentially becomes a loss-leader, an advertising and marketing machine, into something that instead of recording bands, finds bands with already recorded materials on their home recording computer systems, and so the industry simply acts as a promoter, giving away low-res recorded teaser mp3 music? And maybe those giveaways come from sites that sell advertising, or maybe low fees ($.25 an mp3) get listeners out of having to submit to the ads? What if the real money to be made was from concert tickets ($175), tShirts ($30), cd's with music videos and ephemera ($10)? Artists don't see royalties from record companies anyway, and so what if, in getting artists paid, the audience just keeps paying them for the stuff they actually do make money on, and the rest of the dinosaur music company business has to change to accommodate the disruptive nature of the internet?
What if the new "record companies" essentially become the PR/Ad/promotion guys who, instead of paying bands and recording them, get "hired" and paid by the bands to market them by giving away and placing their music in the right spots? What if the copy, cut and paste, and synthesizing steam engine of the internet just kept on amplyfing the ways people use media and how they want to understand and consume it in the new Internet Regime?
It means the record companies don't get to control every unit and the business in general, but frankly, I think they've lost control anyway.
Of course, this idea disregards the old business models music companies employ, where they sign acts in exchange for rights to all the musician's work, the radio and webcasting agreements and business models, the current copyright regime, etc., as well as other business media models for movies, literature, cable and TV. I'm throwing this out not because I think, realistically, the laws will change to support these ideas anytime soon, but because I think the reality of the internet, and the way people use it, reflects aspects of this new model right now. And so if record companies want to survive, they'd better think about this. It may be that the first one to the new PR/Ad/Music Distribution punch is the one that wins.
Speaking of forward thinking acts, Ed Felten mentions that more RIAA lawsuits are on the way.
The NYTimes has four articles today on filesharing, music and the state of the internet:
In fact, for many people, that shift has already come. Like file-sharing -- which 60 million Americans have tried -- cutting and pasting from the Internet is just one part of a broader shift toward all copying, all the time.
Consider a night out in the wireless city: Throw on a faux-vintage sports jersey, grab a bootleg Prada bag and head to the Cineplex for the sequel to a movie based on a television show. Afterward, log on to KaZaA and download the movie's title song, based on a digital sample. While you're online, visit a blog with links to published movie gossip and use your pirated e-mail program to send tidbits to your hundred closest friends. Curl up with a best seller by Stephen E. Ambrose or Doris Kearns Goodwin, who last year admitted to slipping materials from other texts into their books.
"I don't think they think of it as copying music," said Joe Levy, deputy managing editor of Rolling Stone. "It's a very individual experience for them. They want the songs they want in the order they want. Then it becomes not the new Mary J. Blige album, but their own mix. It's a much more individual package of music. Kids view it as an interactive and creative act."
But then, get this:
"...But the process still had some hurdles to get over", Mr. Bernoff admitted. Recently he was discussing his research with an executive at a media organization that has been very aggressive about trying to discourage file-sharing. When Mr. Bernoff asked the executive how he had gotten the report, which Forrester sells for $895, the man hesitated.
"They got a copy from one of the studios," Mr. Bernoff said. "Here is an organization that's saying that stealing hurts the little people, and they took our intellectual property and they shuttled it around like a text file..."
/. on the Leland article.
MOST lawsuits have concrete and focused goals. They usually want money, from particular people in particular disputes. But the 261 suits launched by the record industry last Monday, against people who made the music files on their computers available to others, seek something else entirely: to instill fear.
There is little question the industry can win the individual suits. Whether it can achieve its real goal is dicier all around -- from the youth of so many of those named as offenders, to the very idea of using a relatively small number of lawsuits to deter tens of millions of people.
The Net's free-range design, combined with the global proliferation of personal computing and low-cost communications networks, laid the foundation for the surge of innovation and new uses that became so evident by the late 1990's. The World Wide Web is the overarching example, but others include instant messaging, online gaming and peer-to-peer file sharing. And while companies are free to build proprietary products and services in cyberspace, the basic software and communications technology of the Internet lies in the public domain -- open for all to use.
And from the front page: Neill Strauss' piece on File-Sharing Battle Leaves Musicians Caught in Middle.
"It would be nice if record companies would include artists on these decisions," said Deborah Harry of Blondie, adding that when a grandfather is sued because, unbeknownst to him, his grandchildren are downloading songs on his computer, "it's embarrassing."
Even the Backstreet Boys, one of the best-selling acts of the 1990's, did not appear to have received any CD royalties, their management said.
"I don't have sympathy for the record companies," said Mickey Melchiondo of the rock duo Ween. "They haven't been paying me royalties anyway."
Musicians tend to make more money from sales of concert tickets and merchandise than from CD sales. In fact, many musicians offer free downloads of their songs on their Web sites to market themselves.
Derek Slater and Ernie Miller (/.) (friends and colleagues) both look at what an unworkable idea this is, in response to the Wall Street Journal OpEd piece on this yesterday by Chicago Law Professor Douglas Lichtman.
Says Derek, under Lichtman's logic: ...every technology creator has to know specifically how the service should be used for legitimate purposes and design around those specific purposes, because putting out general purpose technologies will leave a company open to huge damages. In turn, users won't be able to come up with new, innovative, legitimate uses of new technology because they'll be strictly cabined within the uses the technology creator was thinking of. That, too, will hinder technology creation.
"My mom paid $29.95 for Kazaa and assumed she was using a legitimate service," said Marilyn Rodell, whose mother is being sued. "How was she supposed to know the difference between Kazaa and something like Pressplay where you pay $9.95 a month?"
"Kazaa has a very pretty, very professional-looking Web page. I paid them a fee and assumed it was a legitimate way to buy music," said Karyn Columbine, a Manhattan resident who insists she was "shocked and scared" when she discovered that the fee she paid to Kazaa didn't cover legal music downloads.
The answer to this is not about outlawing P2P technology per se. Maybe instead KaZaa's business practices are the problem, and so selling something like KaZaa, with a warning posted explicitly on their website that users of this service, if trading copyrighted materials, might be liable for the trading, uploading, etc. might be more reasonable for the average user.
Tear yourself away from the RIAA/Lawsuit story for just a moment, to check this out from Peter Henderson/Reuters:
If Walt Disney Co. gets its wish, an experimental type of DVD will begin flying off store shelves on Tuesday -- and self-destructing 48 hours later.
Disney movies on disposable DVDs are set to arrive in convenience stores, pharmacies and other outlets in a four-city test of whether Americans will pick up a limited-life DVD rather than dropping by a video rental store.
But get this logic:
Although the disposable DVD format does not make it harder for digital pirates to make illegal copies, Blaustein said by making DVDs cheaper the effort would also undercut the incentive to make such bootleg copies.
Memo to the RIAA: you could work with your customers to provide market solutions to piracy, instead of suing them.
"We are transforming the AP from a wire service, which we've been for 150 years ... to an interactive database and news network that connects us, and not just connects us technically, but more importantly connects our common business and journalistic goals," said the former president and publisher of USA Today.
Sounds great, except this:
Curley said that to increase revenues, the AP must expand its foreign presence, photo services, and revenue from the Internet, while increasing anti-piracy protection from those who would use AP's product without paying for it.
Huh? I'm sorry, but that's absolutely hilarious. While AP does good wire-service stuff, last I checked, it was not the provider of sexy content the way the RIAA and MPAA are, and frankly, practically everything they put out is available on the web for free from thousands of news outlets, who I presume? are paying AP for their services (note the link to the free AP article above). That I know of, there are not tens of millions of people file sharing AP stories on P2P networks, and while I'm sure there are a couple of people who might be taking AP product without paying (hackers logging into their network?), the idea that they might include some anti-piracy protection -- DRM? -- embedded in their stories is ridiculous. I mean, I know they can use XrML, but do they really want to? When he uses the word "anti-piracy" this leads me to believe this is what he has in mind (verses say good firewall management for their online databases). If they want to be the leading authority in their content category that people turn to (especially when it comes to news, which changes by the minute), is DRM more important than the potential for keeping readers from accessing their content?
I'm not sure Curley understands that on the web, he's not selling content, but instead is selling the service with the content as the bonus. News providers on the web provide value by organizing and editorializing the aggregation of a lot of information and articles, and that's what we, as news consumers will pay a premium price for, to get good quick information. But per article, the information is not a paying proposition except for the news outlets that repurpose and pay for it now, because they sell ads. The content definitely doesn't need DRM restricting its use.
That's right. Trademark® is mine. Everyone who uses it has to stop now. If Paul Newman can do it with HUD® (htm), and Bill O'Reilly and Fox claim "fair and balanced®," Entrepreneur® (htm) is owned by Entrepreneur Media, Al Frankin might even take "Shrill and unstable" or "deranged", to be added to the oldie but goodie Trademarks®: "Common Sense" [The Kellogg Company], "Kansas" [Kansas, the band], "Time to Read" [Time, Inc.], "Wish You Were Here" [Hyatt Hotels], "Desert" [Clarks Shoes], then what's the big deal with taking Trademark®? If Trademark® suits are the lawsuit du jour, maybe we should consider a prior art museum for words similar to the Serendipity Files for patents.
I mean, Common Sense®? Is taken? Where is the common sense when words like Common Sense® are trademarked for cereal? Like nobody used those words before, in reference to anything, or to cereal or any other product? Or for that matter, in reference to actual common sense?
The Definition of a TRADEMARK OR MARK: A word, a name, a symbol, a device, or a combination of them that indicates the source of goods or services. Distinguishes the products or services of one business from those of others in the same field. The owner/assignee/licensee of a trademark/mark has the right to exclude others from using that trademark/mark by being the first to use it in the marketplace. Rights in a trademark/mark are obtained only through commercial use of the mark. The owner of a trademark/mark has the right to exclude others unless the trademark/mark has been abandoned.
So trademarks are not supposed to be generic, but are supposed to be associated with and distinguish the trademarked product from others in the field.
Course Bill O'Reilly 'splains it like this: The main point here is that trying to hurt a business or a person because you disagree with what they say is simply unacceptable in America. And that message has been sent by FOX. There's a principle in play. Vigorous debate is embraced by us, but smear campaigns will be confronted. It is simply a joke for The New York Times to editorialize that fabricated personal attacks are acceptable under the banner of satire.
What do hurt feelings and the rest of his logic have to do with whether it's realistic or makes any sense to trademark "fair and balanced" in our current IP system? Or to sue because you are satirized by a known political humorist for associating yourself with your trademarked slogan, which is not really distinguishing you from other products in the field (there are several other news organizations which use generic, ironic slogans, too)?
The hurt continues for Bill, with a new one act play, Fair and Balanced: "Fair" and "Balanced" are characters -- they are prisoners held in an underground dungeon, and every night at 8 p.m. a foul character named "Bill O'Reilly" comes down into the dungeon to torture them.
[Salon columnist] Joe Conason e-mailed... (Frankin) ... and said -- 'I have a new trademark for Fox: Fox News Channel. Wholly without merit.'.
Okay, I won't trademark Trademark, if everyone else puts down their IP guns too.
Update 9/3/03: The Onion on trademark law: The Onion | Tanzania Loses Name To Tanning-Salon Chain. And Al Franken on Terry Gross.
Thanks so much for reading my column, but I have to ask: are you a thief? I need to know because Technology Review reserves the right to sue you if you reproduce this intellectual property without our express, written approval. By the way, this publication uses "smart paper" with patented steganographic technologies explicitly designed to track unauthorized scans or photocopies of my column.
Michael Schrage/MIT Tech Review, in The Customer as Enemy (sub req) (htm), writes about the differences in viewpoint between customers and content providers. Software companies and RIAA members are improving their techniques for monitoring content users, and some customers are responding by choosing Linux over Windows. It's not yet clear how the music and movie customers are reacting to this in their purchasing habits. But in all areas of intellectual property use, the customer as enemy mentality is prevailing and may prove a "disincentive to embrace innovation." In the short term, this may be good for the incumbent companies who implement these policies and monitor and shape markets, but in the long run, they may be closing off markets, new unthought-of uses, and the technological innovations a small percentage of tinkering techie customers do as a matter of course, thereby losing big.MORE...
Steven Wu/Lawmeme and Martin Schwimmer/TrademarkBlog take a peek at the Hermes controversy. The Ginia Bellafante/NYTimes article, A 'Satire' of a Classic Fails to Amuse The August House of Hermès, is reprinted here (htm). The Birkin may be desirable, or was in an old Sex and the City episode, but the rubber knock-off is all the rage. I saw them all over New York last week, even though the NYTimes article says that Bendel's decided not to reorder after the lawyers got involved. This does bring up interesting questions about what is a parody, or satire, and what is just a rip-off. The translucent rubber knock-off/satire costs around $150, verses the $6,000 to $80,000 Hermes leather or crocodile version. There's a jellyKelly too, that is really just the rubber Birkin, but named after the Hermes Kelly bag (and Grace Kelly).
Hermes claims "If everyone on Madison Avenue has a fake Kelly or Birkin, it dilutes the exclusiveness of the brand". It really seems unlikely. I don't really see the $150 purse market as much of a threat for diluting the Hermes brand (as much as say, opening too many stores and selling too much to the masses as some luxury brands have done recently, diluting themselves without the help of knock-offs), and there was a huge difference between the rubber bags women were carrying for summer fun, verses the Hermes version, which resides at the other end of the fashion stratosphere. I kept laughing when I saw them, because they were so funny. Has Hermes seen the jellyKelly in person? Maybe if everyone on Madison Ave has a jellyKelly, it just means that people are making fun of the exclusivity of Hermes, or those on the waitlist for years still wanting a Birkin, or otherwise spend enormous amounts of money on themselves while so many others are in bad straights due to a difficult economy. Hermes might take a look at the Standards for Satire.... Not a legal definition but helpful in understanding the practical sense of this issue.
Ed Quillen/Denver Post suggests it might be Time to give up on copyright law? (htm). He explores things on the opposite end of the way the RIAA sees things, and while they are each at two extremes, as a copyright holder, he takes an interesting perspective.
So there's hope that American copyright law will allow creators to control how their work is distributed. But any law that can be twisted the SCO way, enforced the RIAA way, extended the Disney way, or abused the Ziff-Davis way is a law that ought to be repealed. All it does is enrich lawyers and big companies, and they'd probably get along just fine without it.
Thanks to Frank for the pointer.
Digital copyright owners of fine arts are at risk of the theft of their works by crackers who strip the watermarks from the images, as reported by NewScientist.com in Piracy warning over digitised fine art.
A scheme to digitise (sic) famous paintings that was unveiled last week by the National Gallery in London, UK, may be placing the collection at risk of digital piracy.... The National Gallery has been working with computer giant Hewlett-Packard for eight years on a scheme to digitise all of its 2300 paintings. The images have been captured with a digital camera that steps backwards and forwards over the painting, a technique that improves the resolution of the image to 100 megapixels, 20 times that of the best consumer cameras.
Huw Robson, manager of HP's Digital Media Systems Laboratory, says the digitised images and hard-copy prints will not be protected by digital watermarks. If a file is hacked or a high-quality print scanned and copied, the gallery will be unable to prove the source.
Owning the copyright to digital images will give the gallery some protection under the law. But it will not be easy to enforce, if the music industry's attempts to tackle piracy are anything to go by.
I would imagine that the fine arts image black market is considerably smaller than say, the music industry's problem with file sharing, but after the National Gallery in London has spent time and money in a complicated process of digitizing it's works, one can understand their apprehension over the anticipated cracking of their image watermarks. One the otherhand, the works are in a museum which, if it were in the US, would be a 501c3, meaning it would be supported by donors receiving tax deductions. Because of that, taxpayers would in essence be supporting the institution, and therefore, it would seem more fair to distribute the images more freely as everyone would have a stake in the copyright ownership of the works because of this support. However, I'm not familiar with UK tax law, have no idea how the National Gallery is funded, by donations, taxes or other government underwriting, and so don't really know what is morally right on these terms. Although I do realize the National Gallery alone technically has the right to control the digital images because of their ownership of the works.
On the other hand, museums such as the National Gallery will theoretically make some money from the sale of these images as high quality posters and so I wonder if when the digital images do get out, whether the free distribution will have the effect of promoting their museum and works which is, I think, the ultimate and primary goal of a museum, to share their work directly with the public, along with preserving it for future sharing and study. Therefore, would it make sense for the National Gallery to license the printing through their own and other's print shops for the printing of large posters, while still allowing internet users to discover the artwork via free images that they would most likely not print out as posters because most users don't have sophisticated large format printers at home?
I do realize unscrupulous print shops might print and sell illicit images but how much of a problem this is would seem to be relatively small and something that museum lawyers probably already deal with somewhat now.
Last month, JD Lasica pointed to another digital image copyright story about Corbis invoking the DMCA, suing Amazon and 15 others "for allegedly selling unauthorized copies of hundreds of images." Amazon, at the time, said they would remove the images for sale immediately, and the article addressed responsibility of sites like Amazon and Ebay for keeping users of their services from violating the law. Ebay was released from liability in a similar case in 2001, but Amazon may not be so lucky now because they are more directly involved in the sale process of the copyright protected celebrity images.
Congress created the special subpoena provision that the RIAA is using here, a provision that requires the court to rubber-stamp any subpoena request made by a copyright holder who claims to have a good-faith belief that its copyrights are being infringed. Given this relatively low standard for issuance of a subpoena, the advent of subpoena-bots should come as no surprise.
Of course, big copyright owners aren't the only people allowed to use subpoena-bots. Virtually everything that anybody writes is copyrighted, so this subpoena power is available to every writer or artist, even down to the humblest newbie blogger. Want to know who that anonymous critic is? No problem; send your subpoena-bots after them.
Also, check out his thoughts on what it feels like to be in conflict with the RIAA.
Berkeley's Graduate Assembly began publishing The Berkeley Graduate again this spring after a hiatus of several years. The opening issue (Spring, 2003, in PDF only, use thumbnails and click through the pages...p3 is the index) includes a cover story on "Defending Your Digital Rights" by Ed Carpenter of the JSchool, information on EFF and other organizations actively looking at DRM and digital media, and a hardcopy of Eddan Katz's Revolution is not an AOL Keyword, who is also quoted:
According to Katz, extending copyright is just one of the ways large companies have succeeded in claiming broader rights over the public domain in recent years. And as more Americans use the Internet to share information and create their own media content, lawsuits filed by companies against individuals for copyright infringement are on the rise.
Check out Music Downloading, File-sharing and Copyright: A Pew Internet Project Data Memo. Nothing the blogosphere hasn't discussed and debated already in one form or another, but PEW is a reliable source for sound data on internet activity. My thought after reading the report, where they note that 75% of the users upload files, is that it makes finding a solution such as compulsory licensing or some sort of central heating type plan imperative.
"If we can find some way to do this without destroying their machines, we'd be interested in hearing about that. If that's the only way, then I'm all for destroying their machines. If you have a few hundred thousand of those, I think people would realize the seriousness of their actions. There's no excuse for anyone violating copyright laws." (from the Washington Post/AP or htm) Sen. Orrin Hatch is Chairman of the Senate Judiciary Committee and the hearing was Tuesday where he made this statement.
So, would your computer be destroyed without a court order or other due process? Without checking to see that the files were actually a copyright violation and not, say, your own personally ripped mp3s from your own lawfully purchased CDs? Or a file with a similar name as that of a copyright protected work, but one that is not another's copyrighted work at all? Like in the Penn State astronomy and astrophysics department case?
Dana Blankenhorn responds that if technology like this were developed it would get out and any hacker could use it to destroy any computer:
The nature of secrets is they don't stay secret long. The bigger the secret, the faster the discovery.... Orrin Hatch would be unable to compute anymore. Neither, for that matter, would I. Neither would you. That (secret, machine destroying) code would spread, not like a virus, but like spam, and destroy the Internet forever. You can "email" Hatch to suggest that he get a regular email address, as well as consider that his idea is unconstitutional.
Lessig comments that Hatch has been swallowed by extremists.
Update 061803: Senator Hatch can be emailed here: email@example.com
Update 061803: Hatch's office has issued a statement about this:
"I am very concerned about Internet piracy of personal and copyrighted materials, and I want to find effective solutions to these problems.
"I made my comments at yesterday's hearing because I think that industry is not doing enough to help us find effective ways to stop people from using computers to steal copyrighted, personal or sensitive materials. I do not favor extreme remedies - unless no moderate remedies can be found. I asked the interested industries to help us find those moderate remedies."
Update 061903: See Ed Felten's write up on this issue.
Update 062003: Orrin Hatch, Software Pirate. Apparently, Orrin Hatch's website is using unlicensed software. D'oh!
Why don't ordinary people get it? Because few understand why the public domain is valuable. Why don't more see why the public domain is valuable? Because today the public domain is over 75 years old. It is ancient history for us, irrelevant to much of ordinary culture.
I don't believe that the public domain is irrelevant to ordinary culture. I think for people who do not think about this every day, the problem is conceptual and invisible. Simply making the problem explicit causes so many I speak with to immediately react in favor of the public domain, get the gravity of the problem. But given that each person needs a simple explanation of the concept in the first place, either in person or by consuming it via a talk or in writing, on a blog, over the 9,000 other things vying for their attention each day, it's going to take some steps to get a critical mass needed to make the problem visible, resulting in a movement that can do something to correct the problem. But much like the environmental movement, the public domain movement can, one step at a time, conquer the same barriers of conceptual understanding. 30 years ago, people didn't think about where their garbage went, or whether recycling was important. I hope it's only 10 years (or much less!!) until people think regularly about where human expression is owned and controlled and when it can be recycled appropriately. I think the issue is visability, verses relevance to our ordinary lives.
Jon Healey at the LATimes has an article on Personal Jukeboxes (htm) where technologies like Muse.Net let "people with high-speed Internet connections listen to the music on their computers from any other computer online" so that a collection of music is not about the bits on a machine but rather a collection of titles that can be anywhere. About 150,000 people use Muse.Net (of Mediacode, Inc.), which "increases consumers' appreciation of music without decreasing their willingness to pay for it" by letting one person access their own collection for about $20.00/yr.
"I just think it does all the right things," Ted Cohen, SeniorVP of EMI said after seeing the technology. "It lets people extend the reach of their music experience without tripping over artists' rights or content owners' rights."
On the other hand, there are security and privacy issues, with Muse.Net: "'You're asking me to register what I own,' Analyst Michael McGuire of GartnerG2 says. In Microsoft's Web services model, the entity that licenses and distributes songs 'knows who I am, what I have and what I'm doing with it at all times, theoretically.'"
In contrast, the NY Times has a piece on the difficulties of downloading (htm) courtesy of Frank Field... who also mentions the iPod/iTunes bundling possibilities; as well as this Miriam Rainsford (who started the Madonna remix project mentioned here before) piece on musicians and DRM:
As a musician I find the notion of using DRM technology abhorrent -- not only because of the risk that my works could be locked up indefinitely by technological means, despite my signing a non-exclusive distribution contract. Under anti-circumvention laws such as the DMCA and the forthcoming EUCD, it could well prove impossible for me to share my own work with my friends, or to distribute DRM-controlled content to another publisher.
But aside from the legal and practical aspects, I believe DRM to be against the spirit of music-making. Music is made for enjoyment -- and it is very difficult to create music without an atmosphere of freedom.
And Jenny at the Shifted Librarian talks about another idea to rent iPods filed with music.
Donna points to Pam Samuelson's The Constitutional Law of Intellectual Property After Eldred v. Ashcroft. She also points to Mary Bono's (she succeeded Sonny, and passed the Sonny Bono Copyright Term Extension Act (pdf)) statement that succeeding Hilary Rosen at the RIAA would, according to Bono's chief of staff, "be her dream job". Rosen responded, "I love Mary Bono; she's great."
Does it feel operatic to you? Or maybe like a Greek Tragedy (it is tragic, losing extraordinary human expressions because a few are so selfish and dogmatic that they force the loss due to their extremist stance on copyright protection when moderation will do). We may soon be sprinkling dust from classic movies not preserved in time to save them, but still copyright protected and therefore locked up (thankfully a few legislators are reconsidering this). When do we get to the chorus and Teiresias? Oh yeah, right after we clear the rights.
Valentina Pasquali has written a special report for the bIPlog on the Sonny Bono Copyright Term Extension Act's (pdf) harmonization of US copyright terms with the EU Copyright Directive terms, as well as the arguments made in the case and the opinions (pdf) regarding harmonization in the Eldred case.
Valentina was an undergraduate student this year at UC Berkeley, visiting just for the one year from university in Bologna. She had a blast in the Berkeley and told me she regreted having to leave when we had lunch two weeks ago. She also spent a year in Michigan as an exchange high school student, so she comes to the bIPlog with a good command of English. But I'm really impressed with her ability to write about Eldred and copyright issues considering that Italian is really her first language. It was fun having her contribute to the bIPlog and I wish her well, and hope she keeps contributing!
On Wednesday, July 2nd, an artist reception will take place at SFMOMA Artist Gallery, Fort Mason, Building A, from 5:30 to 7:30 pm. Gallery hours are Tuesdays through Saturdays 11:30am to 5:30pm.
Artists: Bill Barminski, Ray Beldner, Brian Boling, David Byrne, Enrique Chagoya, Heidi Cody, Michael Hernandez De Luna, Eric Doeringer, Kieron Dwyer, Tom Forsythe, Natalka Husar, Packard Jennings, Ai Kijima, Kembrew McLeod, Negativland, Aric Obrosey, Noel Tolentino, Diana Thorneycroft, Clare Rojas, and Tom Sachs, Laura Splan, Wally Wood, and Andrew Jeffery Wright
Mickey Gas Mask, 2001
Latex rubber and cannibalized gas mask parts
Apparently, Lawrence Lessig & Mickey Mouse, Carrie McLaren & Public Enemy, Don Joyce & U2, Larry Gross & Star Wars, Andy Warhol & Mona Lisa, Ezra G & DJ Akiko Hot Rocks & The Rolling Stones, Pretzel & Critters are in it, but I saw Ed Felten and a couple of others in the trailer.
And check out James Grimmelmann's cool post on the Raider's of the Lost Arc re-mix. Apparently Spielberg liked it and so signed off on the recent screening. But it's still under copyright and James gives the issues a thorough once-over. He concludes:
Harry Knowles has been saying that the remake should be a special DVD extra on the Indiana Jones DVD box set. That sounds like a good idea.
At the same time, don't you find it just a little incongruous that, according to the Copyright Act, these fellows could be ordered to pay out $50,000 each and report for a year in prison?
So you can be a creative genius, and edit something extraordinary, but if you do it with something still under copyright protection, you can edit yourself into the clink. I'm starting to agree more and more with some folks' thoughts that copyright is really about distribution and not about copying. At least the public domain still exists for these guys.
Update 5/29/03: Seth Finkelstein in the comments here lists his copies of the transcripts, but also look at his blog posts for more perspective and info. In addition, panelists have emailed saying that the transcripts are poorly done, have incorrect words, etc. I have to say that when I read the ones from May 14 and 15, they seemed odd to me, sentences didn't make sense, etc. but since I wasn't there, I can't say what is correct and what is not.
Illegal Art, as part of their exhibit "Freedom of Expression in the Corporate Age," (4/29-6/7/03) is hosting a panel discussion on the Codification of Ideas and the Future of Creativity on May 29th, 2003. If you're in Washington, DC, check it out. EPIC Policy Counsel Cédric Laurant will participate. If anyone blogs it, please let me know. Looks really interesting.
Update 5/24/03: the Washington Post has an article on Illegal Art and the difficulties with producing shows like Freedom of Expression in the Corporate Age.
The Albert Einstein Library went live today, with 43,000 scientific, non-scientific, travel writings, correspondences and related items. It's a joint project between Caltech and the Hebrew University in Jerusalem, CNN reports. The works are copyrighted and reproduction is restricted, but how absolutely cool for scholars, students, scientists, as well as the future of innovation and creativity to have these 3,000 digitized manuscripts along with 40,000 other documents available for the advancement of our culture and science, so easily and clearly on the Internet.
EFF and others asked the LoC to create DMCA exemptions for four types of digital media:
1) music on copy-protected CDs
2) movies on DVDs whose region coding restrictions prevent playback on U.S. players
3) movies on DVDs which prevent skipping of commercials
4) movies in the public domain released on DVD
Literary works and censorware will also be addressed at the DMCA exemption hearings.
Update (5/15/03): Look here for Brewster Kahle's exemption comment (pdf) about literary and audiovisual works embodied in software, his reply (pdf), his speech and presentation yesterday, asking an exemption to allow archiving of software.
Also, George Zeimann of Azoz wrote a letter (late last night) to the DOJ and LOC (via Pho) about a statement made by an RIAA attorney yesterday at the hearings. Zeimann says the attorney stated that "127,000 albums have been released in the past three years." Zeimann refutes this with his own analysis of the RIAA releases at around 100,000 for the past three years.
The Register has an article on the hearings.
Update (5/16/03): Here is Victor F. Calaba's blog report on the 5/14/03 hearings.
School's not quite over yet, but I just had to point out this article from today's NY Times by Steve Lohr, "'New Media': Ready for the Dustbin of History?" (htm) where he talks about how the Internet has only succeeded in shopping and searching (Amazon and Google), and how Nicholas Negroponte (a futurologist/technologist at MIT) was wrong in predicting in 1995 that "all would be digitized."
"In the early days, in the 1990's, we thought that media was the big application on the Web," said Michael Kinsley, who founded the online magazine Slate in 1996. "But it turned out to be e-commerce." About Slate, he says, "The multimedia component is our biggest failure, but it is a failure we share with everyone else."
I'm not sure what the former editor of Slate means here, but between blogging (both the writing as well as the reading) as a new media, the napsterization of all sorts of media industries and the advent of iTunes and other media downloading services, to the kind of political organizating that MoveOn.org does (raising huge sums, getting the word out, organizing people to act), to flows of information from the NYTimes.com and such, to students applying for college, finding class information and posting assignments, to the ability for citizens to monitor their government and attend public meetings via webcast, to the paradigm shift for finance and banking (see this story about George Soros' former aide going to Brazil in 1999 to save their currency as an example of how deeply the internet and financial trading have been influenced by the web, with the implication that investors get instanteous financial information via new media and react accordingly, to how understanding money movement via networks is totally different than before, and that nation-states have very little control over the huge flows of currencies and the digital information flows that investors use to make decisions) not to mention stock and other financial instrument trading, to the complete shift in communications via email and P2P, to the granular segmenting of data and information sharing for and between people and companies that engage in it, all of which are dependent on many differnt forms of digitized media, the Internet has changed everything. To say the only success of the Internet and media is shopping and searching is absolutely ridiculous.
RIAA lawsuits brought last month against the four students making and operating network search engines apparently will settle soon. The Daily Princetonian reports that Daniel Peng, and the three others, have been working with attorneys to negotiate an end to this, and expect some kind of announcement today. "It would be really expensive to litigate," said Peng, who has avoided commenting publicly since the filing. "I would like to reach an amicable settlement."
In a related story, the Daily Cal at UCB reported on 4/29/03 that UCB Administrators had been approached by the RIAA to close off P2P traffic ((on that note, who hasn't? Even thought there is no P2P traffic on my personal network that I know of - Housemates? Is this true? I expect the doorbell to ring momentarily where a big thug in a bowling shirt with "RIAA" embroidered on the breastpocket requests "politely" that I block traffic immediately if I know what's good for me! It's getting to be like the Nixon enemies list, where anyone who hasn't been sued, or at least been asked to stop some activity by the RIAA will feel neglected.... Not to make light of the actual hardships people who are targeted by the lawsuits experience, but the RIAA is totally out of control, suing people for making search engines that happen to capture file listings on systems that may include MP3s, not to mention IMing file sharers with a tisk tisk note.)) The UCB Administrators responded that they have a policy of not interfering with the ways people use the network and could not comply because the network is set up to respect this. I don't have more details because the Daily Cal has had trouble with it's website recently, and I'm waiting to get a copy of the article to post. Will update then.
Update: Donna Wentworth points out the Settlement for Peng, et. al. at $59,000 (verses the $98 billion they were sued for).
Update: Here is the link to the Daily Cal Story.
According to Wired News, porn is more traded on P2P networks than music, with porn makers claiming their profits are down, just as the RIAA does and for the same reasons. As Greg Bildson -- COO of LimeWire, maker of Gnutella style software said delicately, "We're about all different kinds of content sharing." It is often mentioned that on the internet, the most profitable industry by far is porn, yet they don't seem to get too upset about copyright infringement.
Porn purveyors are trying a couple of tactics to combat stealing, including collaboration (where they give away a little to get paying customers) and embedding links into small clips, planting them on P2P networks, so that when downloaders play them, they are redirected to pay sites. "We love file trading," said Kevin Blatt, sales director for the Triple X Cash. "Why? It's called greed. We've found a way to monetize that sharing." The RIAA could take a cue from them, working with the customers, not against them.
Universal and EMI are suing Hummer Winblad, the venture capitalists, for "perpetuating global piracy through its $13 million investment in the controversial file-swapping service." Even though Napster filed for bankruptcy last June, ending the copyright infringement suits, record labels want compensation for losses they say resulted from Napster's prolonged life, which came because of investments by Hummer, as well as the $90 million Bertelsmann invested (see that lawsuit asking for $17 billion in damages). Although Hummer is expected to say that the investment they made in April 2000 happened when no court had ruled on the legality of P2P file sharing and Napster.
Suits like this, the threat of suits and the uncertain economy make investing in innovative technologies even more sketchy. Take a look at Cory Doctorow's notes from the Emerging Technologies conference happening now in Santa Clara.
In the meantime (thanks Frank!), Slashdot is discussing "All the Rave: The Rise and Fall of Shawn Fanning's Napster." Favorite comment: "My grandfather told me about how when he was a kid, they traded files on Napster, and how it got in trouble for something about "copyright." I'm not exactly sure what that is, but apparently, information wasn't free back then. I'm glad things have changed." It's not that copyright needs to go away; it's very important, but can we alter our arrangement for digital music business models enough so that statements like these aren't funny, they are just there? So that it's not about draconian all or nothing copyright?
Here is bit from the Salon review on the new Napster bio: "The story of Napster has to be seen, in the end, as a tragedy of wasted potential. Here was a system that improved everything about the way we listened to music, but nobody it touched was better off for it...."
Things seem to be reaching new levels of shrillness, between students at Penn State cut-off from networks or at Annapolis, students sued for writing google-like applications, or suing VC's who invested in something that at the time wasn't deemed illegal. Can we please consider some alternative to these measures, like the compulsory licensing, flat fee schemes we've been discussing, or anything else that will reframe the situation to a more rational tenor? I really don't think the Nancy Reagan "just-say-no" thing works. Not that music is equivalent to illicit drugs, but the abstinence argument definitely doesn't work for music, especially in the digital (media) world. There are alternatives to just suing everyone you can get your hands on for the sake of trying to get your old business model back, after it's been napsterized to smithereens. And there are alternatives to stealing, however, since the record companies and trade associations have most of the control, I think after 5 years of this mess, they need to get the memo: work with people, not against them.
Donna Wentworth points to Matt Morse's latest on the compulsory licensing column by Fred Von Lohmann last week, where a flat fee scheme is discussed. Derek Slater addresses the privacy issues of tracking file sharing and watermarks. Ren Bucholz, who used to manage a radio station follows with some insights into artist compensation and the radio station model, and Alexander Payne responds on taxation and ISPs.
They are talking about the complexities of implementing a compulsory license system to track downloaded music, resulting in an accurate distribution of fees to the artists. One thought is to count watermarked songs as they pass through a pipe, no matter where they are going or who is getting the music. This way privacy for users could be ensured, with even the smallest artists directly compensated. And a portion of the fees would go to artists regardless of who owns the rights. Payne addresses the taxation scheme, suggesting that a government tax wouldn't be the way to go. Instead, he thinks an ISP based market scheme would work, where only downloaders are charged, instead of every user, since many users do not engage in music file sharing. However, the privacy issues are ripe for abuse and if the fees per song were small enough, might not be worth charging directly per user.
I like the central heat metaphor put forth by Greg Blonder, because it protects privacy, makes fees really low because everyone pays, which then encourages the eventual participation by many more than just those currently downloading. Americans like flat fees anyway; witness our cell phone system as compared to Europe. Paying per minute/per song fees isn't as fun. People get niggly over every 25 cent song (mobile minute), as opposed to paying a flat monthly amount, where they use services without thinking. It would also discourage the trading of burned cds, because why bother if a user can just download something reliable and easy? Imagine users emailing each other playlists and links to songs they wanted to share as a form of expression, commenting, and trading recommendations, to legal works.
Maybe there could be a maximum monthly download, say 1gb of watermarked content, before increased flat fees were applied. Also, because most P2P downloading is currently illegal, and because it is something people with particular music tastes engage in now, the content and distribution model mean that the entire internet population does not participate. But if music downloading were simple, cheap (and flat fee), and the available content was directed at a much wider range audience, I think a much higher percentage of those on the internet would participate, making the flat fee a more equitable and reasonable solution. It would encourage experimenting with unknown and obscure content, in formats that are also less popular, and might even be a way of allowing for, even encouraging and compensating, artists sampled by other artists, bringing back a dying category killed by the copyright wars. And, it would maintain user privacy.
Larry Lessig and Doc Searls have been talking about the particulars of public domain licensing and what it means for weblogs, what Doc calls the "whatever license" (the no rights reserved, public domain license) and Larry Lessig's response saying "I think it is useful and important to distinguish between DRM and DRE -- digital rights management vs. digital rights expression. DRE is a technology simply (1) to express rights. The 'management' in DRM implies a technology -- code -- both (1) to express rights and (2) to enforce it." The Creative commons licensing system is meant to allow creators to voluntarily increase fair use rights for users, over the default copyright standard.
The most interesting thing is this discrepancy pointed out by Larry Lessig, "Finally, one technical point: Our CC licenses expressly state that you can't use our technology with a DRM system that does not adequately protect 'fair use.' As I've not seen a DRM system that adequately protects "fair use" yet, imho, that means you are not allowed to use a CC licenses (sic) with a DRM system yet. At least that is so if you take seriously the commitments the CC license imposes."
But Doc makes one other good point that the public domain license should be added to the list of licenses, even though it is listed in the choose a license section. I've found the same problem can be a bit confusing clicking around on the CC site.
Dave Winer has posted instructions for including a creative commons license in an RSS feed.
A federal court in Boston rejected on Thursday a new challenge to the anticircumvention provisions of the DMCA when U.S. District Court Judge Richard Stearns dismissed the lawsuit filed by the American Civil Liberties Union on behalf of Benjamin Edelman. Civil Rights Advocates attempted to prove with Eldeman's suit that the DMCA provisions making it illegal to circumvent copyright protections impede citizen's fair use rights, in this case Edelman's right to perform research.
A computer researcher at Harvard Law School's Berkman Center for Internet & Society, Edelman, in July of last year, sought a declaratory judgment preventing N2H2 Inc., a business that produces an internet filtering software, from suing him under the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) for violating N2H2's software license.
Eldeman writes: "I seek to research and document sites categorized and restricted by Internet blocking program N2H2. N2H2's block site list is protected by technical measures including an encryption system, but I seek to write software that will nonetheless allow me to access, analyze, and report its contents. However, I fear that conducting this work may expose me to liability for violation of the N2H2 License, of the Copyright Act of 1976, and of the Digital Millennium Copyright Act, as well as for misappropriation of N2H2's trade secrets. With representation by the ACLU, I therefore seek from federal court a declaratory judgement that I may conduct this research and publication without fear of liability."
As a part of his research, ITworld reports he had planned on reverse engineering Internet filtering software made by N2H2 Inc. for the purpose of researching the effectiveness of the filtering tool. He wanted to access the list of sites that the software blocked and publish them. He also wanted to prove the ineffectiveness of Internet filtering software used by libraries and schools to block pornography.
In the decision released this week Judge Stearns wrote that "there is no plausibly protected constitutional interest that Edelman can assert that outweighs N2H2's right to protect its copyrighted property from invasive and destructive trespass."
Revolution is Not an AOL Keyword was published using a public domain, no rights reserved license, a category to the side of the Creative Commons licensing choices which otherwise make various copyright levels available and include attribution as a minimum requirement for use. The Creative Commons has not seen the No Rights Reserved designation adopted much, compared to the 400k or so discrete webpages which have posted their other licenses since the December 16, 2002 launch. People seem more interested in Some Rights Reserved, although there are a couple of examples like Natalie Merchant, who is recording public domain music, and Oprah Winfrey who has started a public domain book club. And then there is Sal Randolf's "Free Words" project, where her books are placed in bookstores and labeled free, but the words too are free, as they are in the public domain. Derek Slater has also written about his dilemma with public domain blog publishing.
The desire to protect something, not through copyright or for profit, but simply to keep the integrity of a work intact is strong. Fundamentally, people want to connect to each other through an understanding of meaning. And yet it is nearly impossible to do perfectly as a direct, fixed conduit from creator to audience. When something is free on the Internet, the integrity of the original remains, as much as anything can be considered really original. But as it is copied and changed, linked to and sampled, there is a heightened understanding, as well as a complete loss, of any attribution, depending on the republishing. Sampling, reuse and innovation prompt questions of possession and control, issues that test the creator's ego, the need to be known and connected to a work, to say where and how that work is used. I believe audiences understand innately riffs and reuses, and take meaning without always needing tacit clues for understanding. Interestingly, even though Revolution is available for the taking, many of the blogs and links to the work have attributed, or linked back to the bIPlog in some way. Better still, many more did not.
Text on paper, in the context of a deconstruction, can be analyzed to get at what's implied underneath. Text embedded with links presents an explicit layer of the creator's intentions and expression underneath, creating a linking universe across and between blogs and the web. Linking was part of the original Revolution, but not every reprint contained the links. The essence of the piece changed with each sampling, as people rearranged the meaning, posted different sections, with or without links, and with or without attribution. In fact, it appears that as it was copied without attribution, it spread further.
If you print out a copy of Gil Scott-Heron's Television and the HTML coded copy, with all the links explicitly on the page, of Revolution, you would have a hard time finding the similarity in exact expression. Though as a whole it is an elaboration, continuation, imitation, even derivative of the original. This description is all about the elements a judge would consider in a fair use analysis in case of dispute, which would consider the idea/expression dichotomy as a backdrop and the four elements of fair use analysis (which is sometimes literally done by placing the works side by side for comparison in terms of same number of words, etc.).
It has occurred to me that creators concerned with copyright could benefit from the process of making something they could profit from, but instead put into the public domain, placed digitally on the Internet to go wherever it will, in whatever format with whatever parts audiences and republishers find compelling as they respond to it. Dropping barriers that keep the audience from deciding for themselves how to understand and connect to content would seem to be the ultimate in encouraging innovation and reuse in the public domain (pdf).
The Weblogs, Information & Society panel will be held Thursday at 6:00 p.m. PST at the University of California at Berkeley's Graduate School of Journalism. Dan Gillmor, Scott Rosenberg, Donna Wentworth, Edward Felten and Ernest Miller are on the panel talking about how they use blogging in their professional practices, moderated by John Battelle. Ross Mayfield will present right before the panel on Social Software. Webcasting information will be linked here shortly. Please join us!
Note: Donna Wentworth and Ed Felten will conference call into the event from the East Coast.
Update: The notice page now has the outgoing webcast link which will be effective tomorrow night.
Alan Greenspan comments on the balance between copy protection and innovation: "Indeed, the nature of intellectual property is importantly different from physical property. In particular, one individual's use of an idea does not make that idea unavailable to others for their own, simultaneous use. Furthermore, new ideas almost invariably build on old ideas in ways that are difficult or impossible to delineate.
If our objective is to maximize economic growth, are we striking the right balance in our protection of intellectual property rights? Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation? How appropriate is our current system--developed for a world in which physical assets predominated--for an economy in which value increasingly is embodied in ideas rather than tangible capital?"
The New York Times has just changed their archival policy so that all links we've used in the bIPlog that are more than 30 days old will redirect to a page requesting that you purchase the article for $2.95. Links have worked before now, even though articles were months or years old.
Vin Crosbie, President of Digital Deliverance, talked last week at the JSchool about news online, and the mechanisms and logic that publishers use to charge for certain kinds of content (presentations here). Regarding the NY Times, he mentioned them in a survey of similar publishers like the Wall Street Journal and the Financial Times. The publisher of the WSJ said "don't charge", it's not worth it, as it took 6 years to get them from 60k subscribers to 600k, and only because of their unique position as a premiere content source for market news have they even come this far. The FT.com said that charging has been disasterous for them. The NY Times told Crosbie they had no plans to charge for any more of their content than they did then. However, that publisher is no longer at the Times, so my guess is that the new publisher is trying to figure out how to make more from their archives.
But Crosbie said that these publishers had generally found that charging drastically reduced their page views. As an example, in the case of the Irish Times, which before they started charging for the online paper had 1.25 million unique users per day, and 25 million page views, experienced a dramatic reduction of visitors to 7000 people signed up with 1.7 million page views. Their banner ads collapsed.
The conclusion is that ads drop so much, and it harms information flows and your brand for the future, that if you want future users, and to keep current users from going elsewhere, the content must be free.
Jenny Levine notes this: "Just a friendly reminder that pretty much every library has some type of access to the NY Times archive, and many also provide remote access to it via a link from their web site. It's not ideal for Google searching or the "opportunity to assert authority," but if you need a specific article, you can get it from your local library for free."
Reason.org has a piece on Digital TV, Prisoners of Digital Television, by Mike Godwin discussing the broadcast flag and government regulations, various economic solutions for digital TV distribution, and some solutions to these problems. In particular, the incredibly far reaching government regulations that would be necessary to institute the broadcast flag are discussed, including the changes to all of the obvious hardware, but also the non-obvious hardware like cell phones, medical scanners and astronomy equipment in order to control "what the content industry calls 'the analog hole' -- their unsightly term for analog devices' tendency to ignore or sidestep digitally based protections."
Hardware would have to be tamper-proof, operating systems regulation would affect the market, which might, if Linux were controlled, allow Microsoft to completely lock-in the market. And of course, he addresses the issue that computers and the Internet are fundamentally about making copies, and free flows of information, as well as looking at the spectrum, public policy, and consumer and broadcaster issues.
Godwin also mentions this interesting idea: "Nonsimultaneous delivery of premium content may constitute a new application for pure peer-to-peer distribution. (It would be a great irony if the Internet's peer-to-peer functionality, once regarded as an unmitigated problem, could be harnessed to enhance the delivery of commercial content in ways that financially benefit content producers even as they increase consumer choice.)"
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."
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.
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.
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.
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.
...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.''
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.
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.
It was a lot and will take a bit to post here, but late last night, I did finish the question (below under "more") that was the most interesting....
This topic is not central to our bIPlog, which is about IP, but I have written a small response to the earlier post about online publishing and emergent democracy, and the idea that as a network grows, attention is paid to fewer and fewer nodes. Essentially, I document a little of my process, and relate how using a feature at Technorati.com might rebalance a little the growing network problem in keeping the formation of conversations fresh in the blogoshere.
The lawyer for Google asks wordspy to, "help us to protect our brand by deleting the definition of "google" found at wordspy.com or revising it to take into account the trademark status of Google." Wordspy chose the later, with this addition: "(Note that Google™ is a trademark identifying the search technology and services of Google Technologies Inc.)" to their "to Google" definition. But Frank Abate notes:
"Of course google is used as a verb. And why not? It only makes sense, it is short, it is fun, it works. And what the Google (TM) lawyer knows, but does not say, is that the company he represents cannot do anything about its use as a verb, legally. They cannot sue, as one cannot claim proprietary rights to a verb. Jesse Sheidlower recently pointed this out to me; apparently it is an explicit part of US law re trademarks.... In short, Usage trumps Legality, in this instance, at least."
Since the issue with trademark generally is to protect consumers from the confusion caused by a similar or exact same name being linked to somewhat similar services or products, it would seem that this use is not a trademark infringement because using the verb, to google, refers to Google's services, and does not represent any other service, product or meaning. This is simplistic, I realize, but you get the point. And the context at wordspy is to define the verb, not name a service or product they provide.
Here is CNet's take.
[Updated 022503, 8:59am: Corrected misspelling in author's name.]
Donna Wentworth at Copyfight has an interesting synthesis of conversation going on Declan McCullah's copyright legislation article on News.com, and JD Lasica's response to Declan. Declan thinks that rather than Wyden and others proposing new "fair use" legislation to make the DMCA more consumer oriented with labeling requirements for DRM protected products, those sections of the DMCA that restrict too much should be repealed. JD says that even if it happens, which he believes it won't, those same interests with a stake in the DMCA will continue to find new ways to use DRM to restrict the flow of information.
Meanwhile, the NYTimes says that Jack Valenti is taking the moral high ground in a speech he was to give at Duke Law School. "He plans to shift his emphasis to more basic principles: 'duty, service, honor, integrity, pity, pride, compassion, sacrifice....'" Dave Winer notes the moral hypocrisy with that, where the artists who so generously sacrifice rarely get compensated....
One interesting thing Declan mentions is that the consumer electronics industry is the target again with labeling of products. Considering that they are a $500 billion a year industry (which includes universal garage door openers and printer cartridge refill companies but also DVD and CD makers), being pushed around by the RIAA/MPAA content industries at $40 billion a year, you'd think that the electronics people would be able to fight this more than they appear to now. "Talk about the mouse trying to own the elephant herd." Seems more like greed, unfairness hiding behind the law, anti-trust violations, failing business models... are at work, to name a few.
The New Scientist talks about "word bursts", which Jon Kleinberg at Cornell has been researching. Apparently, he's developed an algorithm to find bursts of words across documents, that might be used to identify trends in weblogs.
Dan Silverstein mentioned to me that while the specific technology might be really interesting, it's really hard to have a picture, or many overlapping pictures, of the entire Internet, in order to scan so many weblogs and find bursts of particular word activity, so this may take a while to solve. But one idea might be to target particular blogs by subject or reputation, in order to scan for particular word bursts.
The NY Times reports that ClearChannel has consolidated to such an extent that in emergencies, their radio stations don't even have people there to run the emergency broadcast system.
"Senator Byron Dorgan, Democrat of North Dakota, had a potential disaster in his district when a freight train carrying anhydrous ammonia derailed, releasing a deadly cloud over the city of Minot. When the emergency alert system failed, the police called the town radio stations, six of which are owned by the corporate giant Clear Channel. According to news accounts, no one answered the phone at the stations for more than an hour and a half. Three hundred people were hospitalized, some partially blinded by the ammonia. Pets and livestock were killed."
Go with the flow, man. And get crackin! Profits are down for RIAA type record companies, but hey, Smithsonian Folkways Recordings is making bank to the tune of a 33% increase in profits this year. They use recordable CD's, or CD-R's to copy their catalog, thereby ensuring that their extensive catalog never hits the dust bin. They've been doing this since 1996, creating a "just-in-time" model for delivery. (Every time they get an order, an employee makes 5 copies, one for the order and 4 for future orders.)
With 2,168 titles dating to 1948, they cover works from Pete Seeger and Phil Ochs to "Music From Western Samoa: From Conch Shell to Disco" (1984) and "Folk Songs of the Canadian North Woods" (1955). They are also trying out small runs of CDs, of which their first, "Bells & Winter Festivals of Greek Macedonia," was so popular, they put it into the regular retail catalog.
So, what are the rest of those less-than-hip record companies waiting around for? Hop to it! Make love, not war, with your (netgen, filesharing, the internet-is-an-environment-not-a-tool) customers!
As the nation goose-steps backwards with a frightening sense of inevitability toward the war we fought in 1990, and hurtles at relativistic speed toward the black hole of the voodoo economics policies of the 1980s, one might wonder if something is amiss. And, indeed, something is wrong in the cosmos; the rule of threes is unsatisfied! Fortunately, as Ross Anderson's quote in this article suggests, Microsoft's Palladium will complete the turn-back-the-clock trifecta by causing the torrential information free flow we have today to revert back to the pre-Internet boom trickle of the 1980s.
Thanks to the fine folks at Slashdot for bringing the article to my attention.MORE...
Clay Shirky writes about how movements on the Internet tend away from democracy, over time. As blogging expands, newcomers are at a disadvantage publishing because established blogs are more heavily weighted because so many already link to them. And Ross Mayfield as well has something interesting to say about emergent technologies. Blogging as a style of information flow is like being at a conference all the time, but instead of saying something or asking questions in a room with 300 people, in person, the discussion is quieter, even if 300 people are listening in.
Google buys Pyra, and Dan Gillmor says "The buyout is a huge boost to an enormously diverse genre of online publishing that has begun to change the equations of online news and information," in his blog column.
Cory Doctrow speculates on Pyra and Google, or Gbloogle, and then reprints Matt Webb:
"GOOGLE ARE BUILDING THE MEMEX.
They've got one-to-one connections. Links. Now they've realised - like Ted Nelson - that the fundamental unit of the web isn't the link, but the trail. And the only place that's online is... weblogs.
There are two levels to the trail:
1 - what you see
2 - what you do
("And what you feel on another track" -- what song is that?)
And the trail is, in its simplest form, organised chronologically. Later it gets more complex. Look to see Google introduce categories based on DMOZ as a next step."
Vannevar Bush (1945) explains the memex here:
"Consider a future device for individual use, which is a sort of mechanized private file and library. It needs a name, and, to coin one at random, "memex" will do. A memex is a device in which an individual stores all his books, records, and communications, and which is mechanized so that it may be consulted with exceeding speed and flexibility. It is an enlarged intimate supplement to his memory."
Or, "Some bands want you to swap music files over the internet." This from the Guardian, and Ben Hammersley, who compare MP3s to the kiss mentioned above. Instead, live concert recordings are much favored by some. Bands like The Dead (who has long allowed non-commercial trading of show recordings) and Phish let fans DAT tape the shows and then share CDs, using a file format called Shorten, on a person-to-person basis. Fans also trade CD's via websites like www.etree.org from bands allowing more than person-to-person sharing, but apparently, it's all pretty low-key. Even Clear Channel is apparently offering their services to bands who want to sell CD's of the performance they just attended, 5 minutes after the show closes.
"And there lies the rub. For bands whose main audience is the live one, allowing fans live recordings of the previous night's show could be a winner. For the more possessive record labels, it's a potential nightmare. When stadia could shift 20,000 CDs in an evening and provide free advertising for the rest of the tour, it is so potentially lucrative, it might just be the one that forces labels to reconsider their policy towards file sharing." Couldn't have suggested it better myself.
321Studios offers a reward for anyone caught for making illegal DVD copies using with their software, DVDxCopy. This was announced with the "launch of their new DVD Piracy Prevention Program." They've established hotlines and everything: AntiPiracy@321studios.com, and the 321 Studios Piracy Prevention Hotline (636-728-0297). Cute! 321 Studios is getting so proactive about fighting those baddies Rick McCallum thinks they are on par with terrorists, eventwise!.
The IEEE IP Committee has asked Congress to re-examine the DMCA because of two recent cases, Elcomsoft and Ed Felten, as well as members' concerns about the chilling of innovation and research. The IEEE wants Congress to review and clarify when encryption research can be published and discussed as protected under the DMCA, and to give ISP's direction in how the "notice and take down" section of DMCA should be handled when a customer posts something in question that may be under copyright protection. Sometimes the ISP's get excited and remove the whole site, when in fact only a page or small amount of the content is in question.
"The position statement just establishes that there is a problem," Tenney says. "We don't know which solution is the best but we want Congress to look at it."
This explanation of why DRM matters, what it is and how it works, from a content owner/publisher point of view is worth considering. A couple of important points in their attempt to define and understand DRM:
¶ DRM is "Technology that describes, identifies and protects digital content". To this could be added, "protected by intellectual property rights and in accordance with rules set by rights holders or prescribed by law".
¶ The three essential elements can then be deconstructed as:
1. Description - knowing what the content is and how it can be used;
2. Identification - of how, and by whom it can be used;
3. Protection - encryption or other measures to ensure legitimate usage.
¶ This definition also combines two concepts that are often considered separately: the description & identification of intellectual property and the rights relating to it (Rights Management) and the technical protection (and/or enforcement) of usage rights (Management of Rights).
These seem simple. But each point brings up a subtle distinction between controlling the usage-rights implementation verses the right-to-control-the-copyright implementation, as protected by law. When we talk about DRM, it is usually in reference to one part or the other, where the speaker may refer to one side of that equation, while the listener is paying attention to the otherside of DRM. But DRM is about both, and each time there is a discussion, there needs to be overt consideration of each side of this equation, and even more complicated, the differences that exist around each of these sides of DRM.
"One of the most important things about the definition is that it recognizes that protection is a technical measure - not a contract or trust measure. From this it follows that systems that, for example, allows a user to download a chapter from a book with, on each page a statement that it cannot be copied, or a user agreement that says a paper from a journal cannot be stored electronically, are not DRM. It becomes DRM when there is a mechanism in place that physically prevents copying or storage."
Waddya know. And it's big media companies too: B&N, Penguin, Bantam Dell Publishing Group and The Modern Library (of Bertelsmann).
And thanks to Sonny Bono, publishers of public domain books no longer keep track of works going into the public domain, because well, they aren't getting new titles that fall out of copyright. "The first thing you'd do in classics publishing was keep a list -- a rolling schedule of what was going into the public domain," David Ebershoff, publishing director of The Modern Library said. "That was item No. 1. Now it's not only not item No. 1; it's not an item."
AOL/Time Warner is the subject of a Salon piece, "AOL's Jekyll and Hyde Act" discussing the Verizon case, where AOL has yet to say much, because as both an ISP and the world's biggest media company, they don't want to comment on a case they are not apart of, but might affect them. AOL has been asked to remove files from websites, after those "copyright-sleuthing bots", Internet scanners that look for files that "seem" illegal, based on "as little evidence as a filename that appears fishy, like 'MetallicaSong.mp3' found 'harry potter book report.rtf'" on an AOL hosted website. But AOL has never been asked to turn over a subscriber's name, by invoking sect. 512h of the DMCA, as recently happened to Verizon.
One reason AOL doesn't want to anger subscribers is that they already face losing a lot of customers to other broadband carriers. Also, the article speculates about AOL subordinating to Time Warner, the content side. But the most interesting piece is this:
"The ISPs get thousands of these things, and they get a not insignificant percent that are not just wrong but are spectacularly wrong," says Cohn of the Electronic Frontier Foundation. "And if the Verizon decision under 512h is upheld, we'll start seeing the same thing for people's identities, and they're going to be wrong in the same percentage that they're wrong now." That's because a key problem with the DMCA, critics of the law say, is that it provides little incentive for copyright owners to make sure that they're providing the court with accurate claims. "They may as well make these things as broad as possible," Cohn says. "There's nothing in the system to make them do otherwise. It's just takedown, takedown, takedown."
AOL/Time Warner is the subject of a Salon piece, "AOL's Jekyll and Hyde Act" discussing the Verizon case, where AOL has yet to say much, because as both an ISP and the world's biggest media company, they don't want to comment on a case they are not apart of, but might affect them. AOL has been asked to remove files from websites, after those "copyright-sleuthing bots", Internet scanners that look for files that "seem" illegal, based on "as little evidence as a filename that appears fishy, like 'MetallicaSong.mp3' found 'harry potter book report.rtf'" on an AOL hosted website. But AOL has never been asked to turn over a subscriber's name, by invoking sect. 512h of the DMCA, as recently happened to Verizon.
One reason AOL doesn't want to anger subscribers is that they already face losing a lot of customers to other broadband carriers. Also, the article speculates about AOL subordinating to Time Warner, the content side. But the most interesting piece is this:
"The ISPs get thousands of these things, and they get a not insignificant percent that are not just wrong but are spectacularly wrong," says Cohn of the Electronic Frontier Foundation. "And if the Verizon decision under 512h is upheld, we'll start seeing the same thing for people's identities, and they're going to be wrong in the same percentage that they're wrong now." That's because a key problem with the DMCA, critics of the law say, is that it provides little incentive for copyright owners to make sure that they're providing the court with accurate claims. "They may as well make these things as broad as possible," Cohn says. "There's nothing in the system to make them do otherwise. It's just takedown, takedown, takedown."
According to this Brookings Instititute paper, the answer is no.
Because they can't be reading the applications too closely. How can they be issuing patents for the process of, gasp, streaming audio and video over the Interent, held by Acacia, as well as SBC Communications patent for frames used on websites (though there is evidence gathered to show prior art), Open Market's patent on web shopping carts, SightSound Technologies patents for selling downloaded music and video online, InTouch Group's patents for putting snippets of music on the web, and the most amazing one of all: Test Center's patent for creating a process to make "tests, assessments, surveys and lesson plans with images and sound files and posting them on-line for potential users." (Although Test Center is apparently thinking of selling the patent, they say they will enforce it if necessary.)
Well sort of. Microsoft is investing $500 million in DRM, hoping that by giving away the technology for free, they will make Windows Media audio and video the preferred formats, with both electronics and media companies, as well as consumers. MS worries about copy-protected CDs that won't play on PCs. But even electronics manufacturers and media companies apparently wonder whether MS has a real interest in DRM, or is just protecting the Windows monopoly. However, according to the article, Jupiter Research, "About 40 percent of 15- to 17-year-olds buying a CD in the last 12 months said downloading influenced their purchase; 28 percent had copied music from a friend." And it also mentions the paper published by some MS employees (see bIPlog post) saying, "DRM technology would likely fail because of consumer resistance to content protection and acceptance of file trading. The researchers concluded 'that a vendor will probably make more money by selling unprotected objects than protected objects'."
And the Internet Streaming Media Alliance (ISMA) just announced it is finishing the MPEG-4 standard for open review at the April convention of the National Broadcasters Association. This MPEG-4 standard will include DRM. The lack of DRM has been a problem for the adoption of previous MPEG standards, which are considered to be open standards, verses the Windows and Real media standards which are proprietary.
So is the moral quagmire for the digital rights manager whether to use a proprietary system or not, or just run with the market for downloading and make something people want enough to pay for that is simple to use and comprehensive in content, forgetting the DRM altogether? I guess you know what I would do.
Salon has a piece today called, "Embrace File Sharing or Die" written by John Snyder, president of Artist House Records, and his son Ben, of Gas Marketing/Management, a grassroots marketing company that serves the music industry.
About Eldred and copyright: "This is a clear case of a multinational conglomerate using its political muscle to the disadvantage of everyone but itself. So, instead of creating new content and allowing long-standing laws to work, the entertainment business frantically seeks to manipulate the process to its own ends. And it does this with the obsequiousness of penurious politicians and a supinely acquiescent Supreme Court. That is the best the establishment has to offer, and it has nothing to do with progress or the good of the society."
They call the entertainment industry on the current mess with radio and homogenization of content. They note the rising prices of CD's, bad economy and other better ways to get entertainment bang for the buck as reasons why CD sales have dropped and that EBay and Amazon have expanded their online businesses by paying attention and working with the internet, not against it, which the RIAA could learn from.MORE...
Reason.org has a piece called The Myth of Media Deregulation about Congressional hearings on the consolidation of radio stations, and this caught my eye: "In the past five years alone, an emerging alternative to mainstream radio -- Internet broadcasting -- was nearly smothered by new rules imposed not by the FCC, but by the Copyright Office. Some last-minute legislation softened the injury, but still left many Netcasters with legitimate complaints."
Copyright, spectrum and wi-fi questions and regulations, backed by the same big media that say they want deregulation of the media, are, according the Reason, having the effect of choking new media choices. And Reason speculates that the Congressional hearings won't address the issues mentioned above that have a direct effect on media consolidation.
KaZaa, more popular now than Napster ever was, has sued the RIAA, "...asserting that they have 'obscenely' abused their copyright powers." This follows a ruling two weeks ago where a California judge ruled that Kazaa could be pursued in the state.
The Economist recently wrote about the copyright wars, concluding "...Certainly, the content industries are likely to experience the most upheaval. They may be able to retard the growth of copying on the internet for a time, but they cannot hold back the advance of technology altogether. This will undermine their existing business models, based as they are on print, analogue broadcasting and the sale of physical products such as compact discs. Even if the "total copyright protection" scenario sketched above prevails, content providers will have to reinvent themselves."
"...an evocative cultural snapshot of the nation over the last century, saluting equally the words of presidents and generals, the artistry of jazz and classical masters, and the raw energy of rock 'n' roll and hip-hop rebels," for preserving important recordings by Bob Dylan, fireside chats with Roosevelt, Billie Holiday and Martin Luther King. This repository includes some online recordings, and is similar to their other collections preserving films, maps, manuscripts, etc.
They also include directions for preserving your old sound recordings, which seems like a good idea, considering how many things are out of print yet still copyright protected, meaning that unless the LOC deems a work one of the few they can afford to preserve, you might turn out to be the archivist. The recordings -- 50 in the first batch -- join the 25 films per year added, many of which are under copyright protection, causing the LOC to face conflicting missions to preserve and make available important cultural works, while respecting the copyright protections of these works. "In the meantime, David Sanjek, a member of the preservation board representing Broadcast Music Inc. (BMI), summed up the library's challenge in unearthing recordings this way: 'If a recording is made and you are not able to hear it, does it really exist?'"
Declan McCullah of Cnet recently wrote a piece on an obscure law called the No Electronic Theft Act (1997) which could be used soon by the Justice Department to prosecute P2P file sharing pirates. Several US Senators sent a letter last summer to the DOJ asking for this, but not much came of it. However, according to the article, the RIAA and the Business Software Alliance have been active with the DOJ in pursing this. Apparently there have already been some successful convictions using the NET Act, but not for P2P piracy. While the odds of being the test case are low, it may be that someone somewhere soon is the target. Of course, if this happens, the NET Act won't be obscure for long.
On a related note, a consortium of music sellers including Best Buy, Hastings Entertainment, Tower Records, Trans World Entertainment, Virgin Entertainment and Wherehouse Music has decided to collaborate to sell digital music online. So there may soon be better alternatives to P2P piracy on the way.
Timothy Phillips responds to Ed Felten's post on Eldred and the language of the common's argument as mentioned in the bIPlog earlier. Felten proposed changing the debate to reflect the difficulties of copyright, but Phillips believes those arguments are about the complexity of the current system, not the problem of the duration of copyright protection. He thinks ideas are only public property, and therefore, the public needs to be more diligent about protecting the public domain, rather than letting the copyright industry frame the argument as a private property issue. Also, he points out the language the Supreme Court used in Scott Paper v. Marcalus, where they said, "...the consuming public at large shall receive the benefits of the unrestricted exploitation..." about patents. He believes the principle should hold true for copyright protected works.
The Economist has an opinion piece, A Radical Rethink, on crushing creativity in the digital age, saying the battle over copyright, "could yet determine the future character of cyberspace itself.... Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right." Those seem like fairly powerful metaphors, used before to insist that the Internet remain open and free.
Two artists, Pierre Huyghe and Philippe Parreno, bought the exclusive rights to an animated character named Annlee from a Japanese agency selling stock manga characters. They paid a little over $400 for Annlee's copyright and then let their friends use her character in their artworks. Then, they "killed" her off, forbidding future uses of her likeness by transferring Annlee's copyright to Annlee herself! Mickey must be jealous. He has to do the bidding of the Disney corporation, constantly appearing on their mugs and t-shirts. But Annlee, the first cartoon character to hold her own copyright, has been liberated from the grind of commerce and mass-production.
Doc Searls on Eldred talks about different conceptual views of the copyright battle --legal, political and metaphorical. The last is most interesting: "Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal."
Searls thinks that if the side on the commons wants to change minds, it will have to rethink the use of the word commons, and its associations to other like words, which may make people uncomfortable, and contribute to a hazy understanding of why innovation through reuse of common or community assets is important. Larry Lessig responded in agreement.
Ed Felten goes further, suggesting that public domain arguments end up sounding like freeloaders wanting to use other's work for free, where instead a more effective argument might include how entangled copyright law has become, where even record companies complain that clearing copyright for online sales is onerous.MORE...
It may prove difficult in the short term to reduce the term of copyrights which have already been extended. Also, the forces pushing perpetual copyright are strong. However, there is another route, which may be easier, employing the concepts of Aikido -- moving with the strong force and redirecting it in a better way. Rather than fight to reduce the maximum term of copyrights, consider that existing and future copyrights could be taxed annually just like real estate as long as they are kept from the public domain. This uses a market-based approach to limit the external costs of copyright monopolies.
(This is an interesting idea and a good write up, so I included it in the main blog. Corrected a couple of typos, but otherwise it is as he published it. ~mary)
By now anyone reading this knows the good guys lost in the Supreme Court this week. A good place to start reading about this is The Berkman Center for Internet and Society where Larry Lessig works. You can find links there to news stories and the actual opinions, including the two dissents. His blog is filled with both his own musings on losing, as well as the support and encouragement of hundreds of well wishers.
The New York Times lamented the "end of the public domain" in an editorial today.
Finally the RIAA admits they must respond to this by offering good legal alternatives, in part so that illegal downloading of online music approaches tolerable levels, comparable to shoplifting in stores. "Illegal file sharing has to be driven into the underground by making legitimate offerings compelling," Cory Sherman said. Musicnet, Pressplay, Rhapsody, Rioport and Emusic are mentioned in the article as legitimate online music sites, but it says there are almost no sites offering legal music downloads in Europe.
Fred Von Lohmann makes a good point in an interview with TechFocus: "... in response to the last revolution in distribution, namely broadcast radio and television, copyright owners learned to let go of the need to control and count every single listener and viewer. And it turned out to work pretty well for all concerned."
Ed Felten adds to the discussion that counting watermarks and other current ideas for measuring music downloads are problematic because people will over or under report what they actually listed to and that something like the TV rating system may be a better way of compensating artists for their work.MORE...
Wired has a piece about the Canadian Private Copying Collective (CPCC) which collects CN$.21 per blank CD (pdf), to compensate musicians for the copying, both legal and illegal, of music, though less than half the blank CD's sold in Canada are used for music. Last year the CPCC collected CN$.05 per CD, but are proposing CN$.59 per CD for 2003, plus new fees for other devices like compact flash cards and recordable DVDs. Protests are being waged, especially because the CPCC has yet to distribute to musicians any of the CN$28 million they have collected over the past couple of years. The CPCC says this is a very complicated process requiring payments to as many as 12 entities per song.
The Canadian Coalition for Fair Digital Access, a 16-member group that includes Intel, Dell, Hewlett-Packard, Sony and Apple, as well as Wal-Mart Canada, Costco, Staples, Radio Shack and the Retail Council of Canada has made one of the formal protests to the Copyright Board of Canada because they don't believe consumers should subsidize the music industry, when half the blank CD's aren't used for music. "It's not about fairness at all," said David Basskin of the Canadian Musical Reproduction Rights Agency. "If it was about fairness, these large U.S. multinational companies wouldn't be trying to deprive Canadian musicians of royalties they are legally entitled to."
The BBC reports that a Norwegian Court has ruled against the prosecutors in a case brought again Jon Johansen, the developer of DeCSS decryption software. However, the law in Norway allows prosecutors to appeal within 90 days, so until the appeal window passes, the case isn't really over.
...in the music world, according to a NYTimes article on the trading of bootleg concert recordings. While bands like the Grateful Dead and Pearl Jam allow the free recording and trading of their live performances, it is a copyright violation to do so with any performance where no permission is given. But artists have to object before the RIAA will step in, and as the article says, "Artists who prosecute individual fans for merely indulging in music beyond their official CD's would be about as cool as a Guy Lombardo record."
Live show recordings are typically traded by mail to assure highest quality, but traders and fans meet on the Internet to talk about shows, compare notes and arrange trades. Also, some fans believe they are preserving the legacy of performances, sort of the way heirloom seed traders have preserved heirloom vegetables after the Ag industry standardized food production down to just a couple of homogenized varieties. Listening to a live 1975 bootleg of the Rolling Stones' concert "L.A. Friday" may be a more authentic and vivid experience than listening to a heavily mixed and managed studio recording of the same music "Love You Live," the band's official concert album of that time. Kind of like the difference between eating a Brandywine or Striped Marvel tomato and having a square supermarket tomato.
If you place an unprotected resource on the web, others should be free to link to it. This notion is so fundamental to the web that the digerati were completely flabbergasted when some groups and corporations had the audacity to suggest otherwise.
If you don't want a resource linked to on the web, don't put it on your web server. If you need to have the resource on the web, but don't want to the public at-large to see it, take appropriate steps to restrict access. Even NCSA HTTPd, the mother of all web servers, supports the ability to do this.
With all of this in mind, it was surprising to see this Kuro5hin Op-Ed piece making a sensible argument against linking, where links from large sites may send sudden, huge traffic spikes to smaller sites. It argues the ethics for linking should be different on large "meta" sites like Kuro5hin and Slashdot because they act like lightning rods for web traffic, which can take down underpowered web servers, or, worse yet, cause unexpected large bandwidth fees for small website operators.
The NY Times reports that a DRM switch inside cable boxes allowing control over recording of pay-per-view and other special programs may soon be turned on by media companies wanting to charge additional fees for recording, on top of charging to watch the program at the time broadcast.
Media companies are investing in DRM technologies and companies in an attempt to control where digital content goes, but they may find that consumers feel that all the rules make the product not worth it. And what about fair use? Even commenting on these works by copying a snippet to write about it will be impossible if the copy disappears after a few hours or is locked up.
"You're not buying music, you're buying a key," says Larry Kenswil, president of eLabs at Universal Music Group, the world's largest record company, which offers 99 cent digital singles "...that can be burned to a CD but not copied to certain portable devices, like the Apple iPod. 'That's what digital rights management does: it enables business models.'" But if the business model so favors the business and not the consumer, then what? If you throw a party and nobody comes, is it still a party? What if consumers still think they are buying music?
Copyright protection for many recording artists from the 1950s is about to fall off in Europe, allowing their works to enter the public domain in the EU. This brings up all sorts of issues, like what to do about European import CDs sold at many US record stores, advertising uses of the music and American companies being forced to work with smaller bootleg companies. This particular era of music represents a time when the recording industry went through rapid technological innovation producing recordings far more sophisticated than in the past, both in content and style, and so the resulting 1950s music is far more marketable now.
For more info, see Dennis Karjala's chart comparing copyright protection in the US and the EU for various kinds of works.
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.
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.MORE...
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."
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.MORE...
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, Detritus.net, 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.MORE...
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!
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.MORE...
We have blogged about how retailers like Wal-Mart forced companies like Fatwallet.com 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 Fatwallet.com 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 Fatwallet.com 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.
CDCovers.cc, the "world's largest CD cover site", announced on their site that the RIAA has forced them to remove all cover art for CD's. CD Covers is a "profit free organization that runs on voluntary basis" hosting covers for games, software, audio (formerly) and video products. It appears that they make the covers available for printing, as they also offer some special free formating software.
This is a big deal, IMHO, and worthy of a few minutes of all of our time. Public comments on a "Broadcast Flag" have been extended to Dec. 5. (Here is the link to a PDF of the FCC request for comments.)
There is time to tell the FCC how you feel. Why should you? From a posting on the pho list: "Hollywood and leading technology players have devised a plan that would only allow 'professionals' to have fully-functional devices for processing digital broadcast materials." In other words, "normal" people can't edit and build upon the video culture in which we are stewing. This is tantamount to taking away desktop publishing tools because they might be used illegally to pirate books. Think about it for a bit, then do something about it here, if it makes you angry.
This NY Times article suggests that artists are more worried about the problems of fans downloading demo tapes or half finished works from the Internet verses piracy of copyrighted works. One band is System of a Down, whose latest album, "Steal This Album," is a title spoof Abbie Hoffman's "Steal This Book." The band is open about their thoughts regarding the leaker of the unfinished songs: "If I knew (who it was), then someone's head would be broken in," says Daron Malakian, the band's guitarist.
Serj Tankian, the band's singer, said: "I'll tell you, with this whole Internet thing, I have no problem with it. I like the fact that kids can download stuff and experience different kinds of music and check out new bands (See this NYTimes article on the kids latest efforts to keep the downloading alive and David Kushner's Rolling Stone piece on the failings of DRM). Even if finished material comes out two or three weeks ahead, it's no big deal to me. It's the trading of unfinished songs that bothers me."
Sounds like a band supporting the sharing of works over the Internet to me, a la Mr. Rogers in the Betamax case.
Columbia University's Journalism School a few days ago held a conference on free expression and the arts called The New Gatekeepers. A NY Times article reported on the conference discussion over the tension between copyright and censorship.
And Jed Rubenfeld in a Yale Law Journal article looks at the tensions between the First Amendment and Copyright in "The Freedom of Imagination: Copyright's Constitutionality." (PDF) He illustrates the point with examples such as The Wind Done Gone (he was counsel for the author) and the 1995 case where a former Church of Scientology member who posted some of their material on the internet as criticism, was then subject to a seven hour search by the police, assisted by a Church member, all in the name of copyright. He talks about the freedom to imagine, and whether copyright law is content based compared to speech restrictions based on content and viewpoint. "In the elaboration of these rules, the freedom of imagination ought to play the same role for copyright that the freedom of 'wide-open and robust debate' has played for libel."MORE...
Larry Lessig from his blog, has a piece about an analysis done by Jason Schultz of Fish and Richardson and Deirdre Mulligan of the Berkeley Center for Law and Technology. They looked at what would happen to copy protected books if the 1976 extension for copyright were struck down. The upshot? Books in print, or 4% (9,240) of all books (300,446) published between 1927 and 1956 would be affected. The rest (291,206) are not in print, and would come available to anyone. "So it seems that were the 1976 retroactive extension struck down, the most significant impact of such a decision would not be a monumental loss of contracts or corporate mergers, but rather a dramatic increase in reading." Jason Schultz, who reran the numbers here, commented that they are even better for 1927-1946. The earlier the works, it would seem, the fewer are still available in print.MORE...
The Danish Anti Pirat Gruppen (Anti Piracy Group) issued invoices of $14k to each of about 150 KaZaA and eDonkey users for illegally downloading copy-protected material. The DAPG went to court with screen shots of users' lists of shared files, in an effort to get their personal information from ISPs. Users were charged $16 per CD and $60 per movie, although this doesn't seem to take into account misnamed or bad files, or files the user owns through legitimately purchased CDs and DVDs.
Interesting, too, is the case last Spring in which KaZaA was ruled to be "perfectly legal" in a Danish court, regardless of whether some uses of it might be illegal.
The CA Supreme Court decided yesterday (Reuters) that Matt Pavlovich (who is an Eagle Scout, by the way, as one of his defense attorneys mentions) couldn't be sued in CA by the DVD Copy Control Association because he lives in Texas, and posted DVD decryption software, in violation of the DMCA, as a student in Indiana. Therefore CA courts do not have jurisdiction, although a suit could be brought elsewhere (Law.com).
About 500 others living outside CA were also sued in CA for posting the same DeCSS code, which seems to be everywhere on the Internet at this point. One of the three judges was interested in having the cases brought in CA because of the movie industry's economic impact in the state, in a single combined forum, but ultimately decided there was not jurisdiction to do this either.
Tomorrow, a Federal Court in LA will decide whether KaZaA distributor Sharman Networks, incorporated on the island of Vanuatu and doing business in Australia, can be legally pursued by Hollywood in the U.S. Sharman does no business in the US, but its peer-to-peer technology vendor, Blastoise (dba Joltid, and founded by Niklas Zennström, also a founder of Kazaa/FastTrack) is located in the U.S. If Sharman loses, their case may be added into the Streamcast and Grokster case, and might be an interesting comment on jurisdiction involving Internet business disputes.
Planning to be in the Lower East Side between now and December 6th? If so, be sure to check out Illegal Art: Freedom of Expression in the Corporate Age, an exhibit celebrating fine art and musical creativity based on borrowed materials.
The show -- which features "murdered Disney characters, the Colonel Sanders mandala, a Texaco-laced doily, and more" -- reminds us that, had Warhol been born 30 years later, his Campbell's soup cans might never have seen a museum wall.MORE...
Good thing for Alex Halderman ('03) that Ed Felten is on the faculty. The Princeton senior could use his professor's seasoned advice right about now on the perils of doing computer science research under the rule of the Digital Millennium Copyright Act.
On Monday, Halderman presented his junior paper, "Evaluating New Copy-Prevention Techniques for Audio CDs," at the 2002 ACM Workshop on Digital Rights Management -- an act that could be seen as a violation of the DMCA.MORE...
News.com has a story about the Department of Energy closing down PubScience, a research database with about 2 million documents. Some private companies complained successfully that there was some overlap of published documents, which the companies sell, since federal law prohibits the government from competing with private interests. At the opening of PubScience in 1999, the U. S. Secretary of Energy at the time, Bill Richardson said, "For science to rapidly advance at the frontiers, it must be open. And shared knowledge is the enabler of scientific progress."
However, since the DOE funds almost all the research, and publishers of documents can choose whether to make them available on PubScience, it seems odd that these companies are defining what is available by the DOE.
It ain't often you hear a conservative legal mind defending Larry Lessig's ideas, but bless him Richard Posner just did. This is the same fellow who mediated the Microsoft settlement. More on Posner here.
Fatwallet, an online service that collects and compares sales prices from Walmart, Staples, Best Buy, and Target, has been told to stop by those retailers because the practice is in violation of the DMCA. "We don't think sales prices can be copyrighted, or that the DMCA was meant for this type of thing," said Tim Storm, Fatwallet's owner. "But it would cost us a heck of a lot of money to be right." He is complying with the request "as a business decision."MORE...
CEDBroadband profiles Speakeasy, who just started promoting "'neighborhood' sharing of broadband Internet connections via wireless access points." Not only is Speakeasy allowing this, but they are offering free, special equipment to make sharing more possible. In the past, many ISP's have barred this practice in their user agreements. CED's monthly also has a more general piece on WiFi sharing. This movement has been going on for years, with many different solutions considered.MORE...
On the heels of two recent postings along this theme (11/17/02 and 11/16/02), the SF Chronicle published an article today about patents and their increasingly prodigious value to technology companies -- particularly during economic downturns.MORE...
According to Ananova, someone recently noticed that Mickey Mouse makes a cameo in a 700-year-old church fresco. What's a mega-multimedia conglomerate like the The Walt Disney Company to do?MORE...
At the Association for Computing Machinery conference workshop on DRM tomorrow, four (Microsoft) researchers give the scholarly take on Darknet and the Future of Content Distribution. Darknet is a collection of networks and technologies used to share digital content. Interesting points: the legal system can disable the current darknet systems, but as users become more sophisticated networkers, smaller more personally established networks will take over and DRM will be useless for tech-savvy pirates. Examples: think about IM-ing a DVD to a few people, or small world networks strung together to quickly diffuse content.
Their conclusion: "There seem to be no technical impediments to darknet-based peer-to-peer file sharing technologies growing in convenience, aggregate bandwidth and efficiency." Also, they believe strong DRM may be a disincentive to legal commerce as people worry about privacy issues, and movie pirating is less of a problem because rentals on or offline are so cheap and easy, in contrast to the current state of music.MORE...
Patent donations have been gaining in popularity, particularly among large corporations, according to an article in today's NY Times. When companies earn patents on inventions they'll never use, who could question the obvious win-win proposition of transferring them to hungry research institutions in exchange for a tax write-off? Well, the IRS, of course, and not entirely without reason.MORE...
Star Wars producer Rick McCallum is quoted in the Australian IT News as saying that copyright protection needs to be "as concentrated an international event as the war on terrorism." Funny, but I thought threats to personal safety took a higher priority than those to copyright protected works. He also claimed that 50% of music industry revenue had been lost to illegal file sharing, and the same would happen to the movie industry if they didn't stop it. The latest comScore study shows a 25% loss in music revenue over last year, and far less in previous years.
For years, The Rolling Stones had bassist Bill Wyman. And for years, Rolling Stone the magazine has had journalist Bill Wyman. Now, according to The Beeb, Wyman the journo has received a cease-and-desist letter from the band's lawyer, warning him about "a seriously misleading and, arguably, an intentional, unauthorized exploitation of our client's name, goodwill and publicity value." The punch line is that Wyman the musician was born William George Perks and changed his name to Wyman in 1964. Wyman the journalist was born with the name in 1961. Is it telling that this is the second time in a week the Rolling Stones have been fingered at bIPlog over an arguably ham-fisted IP issue?
In his article "This MS Antitrust story was created by a computer program", Andrew Orlowski raises the age-old question, 'How do you know that what you are experiencing is really real?'
Who owns an auto-generated news article anyway?
A Swedish technology company, Intentia, filed a complaint against Reuters for hacking into their website and obtaining the company's financial report. The catch is that Reuters did not bypass any security measures. They simply typed in a URL and viewed the financial report from one of Intentia's publicly available web pages. Intentia argued that this web page was "private" because there was no explicit link to it. Reuters countered that anything accessible on a public website, whether or not it's linked to, is undoubtedly public. Why all the confusion? One computer science professor, Edward Felten, suggests that website owners clarify the difference between public and private information by protecting private information with a password.MORE...
Robert Moore and his 321 Studios are offering DVD copying, according to CNN. Since 2001, his company has sold 100,000 copies of DVD Copy Plus, which allows people to copy DVDs onto CDs. But the latest, DVD X Copy, just released, unlocks the deCSS system. When Moore found out in March that his products might violate the DMCA, he preemptivly sued 9 major studios, so that he and his customers could retain the right to back up their DVD copies, which then cannot be reduped and have watermarking.
Movielink, the Hollywood movie industry's answer to the file sharing networks that have undermined the music business, has officially launched, with 170 titles priced from $1.99 to $4.99. They include "A Beautiful Mind" and "Harry Potter," as well as many classic films, according to an Associated Press story.
But don't expect to be able to start a VCR-style film collection. Movies at the Web site can only be downloaded for viewing on a computer for 24 hours, after which they expire. It's another example of how digital technology can be used simultaneously to expand access to content while also restricting ownership rights.
The Director's Guild of America has brought a countersuit against several companies that make DVD playback software because the DGA doesn't like the way they play their material (the original suit involved ClearPlay, Movie Mask and Family Shield companies suing 15 directors because they wouldn't allow their films to be used this way). ClearPlay, et. al. don't actually alter the DVD, just the play back so that parents can control their children's viewing of a movie. "They are taking films and using technology to alter them without permission from either their directors or their copyright holders," says DGA President Martha Coolidge. It's understandable that artists would not like new technologies that are able to automatically alter copyrighted artistic expression. And yet it's also clear that people want an easy way to filter their own viewing at times. But the ClearPlay creators are making filtering decisions in the architecture of the code, which might invisibly takes away the choice from the viewer.MORE...
Both BMG and EMI are apparently planning not only on protecting all their music with encryption, they don't care if you can't play it on your player. BMG even developed a website to promote copy protection (at least its pretty). This doesn't seem like a very good way to do business, but when you have such a large share of the media market, I guess it doesn't matter. Just ask Microsoft.MORE...
...and therefore, fair use. Mattel lost a trademark infringement case against Susanne Pitt (www.dungeondolls.com -- now-defunct) who was taking Barbie heads, attaching them to a body dressed, as she described, in "'Lederhosen-style' Bavarian bondage dress and a helmet in rubber with a PVC-mask and a waspie," and putting them into a sexually explicit setting on the website. The dolls were then offered for sale. The judge ruled that the design transformed rather than supplanted the original work and accepted Pitt's letter in self-defense which stated the dolls were a parody. To the court's knowledge there was no line of S&M Barbie, so there was no similary to an existing product.MORE...
Brazilian writer Moacyr Scliar wrote "Max and the Cats" (1981) about a Jewish youth who survives a shipwreck and shares his life boat with a panther. Yann Martel just won the Man Booker Prize for his novel, "Life of Pi," about an Indian youth who survives a shipwreck and shares his lifeboat with a tiger. Martel does say in his book that he was inspired by the earlier work by Scliar, and in the article says that he read a review of Sclair's novel but there is some mystery around his memory of it. Scliar responds in a NY Times article that "an idea is intellectual property" saying he wasn't consulted before the Pi book was published.MORE...
Disney is fighting Stephen Slesinger Inc. over rights to Winnie the Pooh, using the 1998 copyright law (Sonny Bono strikes again!) that allows heirs of copyrighted works to reclaim the rights within two years of giving notice to existing owners. This is the latest turn in the battle between Disney and Slesinger over rights to Pooh. Slesinger, which bought the rights from the estate of Pooh creator A.A. Milne in 1929 and then licensed them to Disney in 1961, claims Disney didn’t pay all the royalties owed on the characters.
Now Disney says the heirs to the Milne and Shepard (Pooh's Illustrator) estates came to it wanting to make a deal to get the character rights back and reassign them in full to Disney. Slesinger thinks this use of the copyright law is just a way to get around the issues at hand: that Disney owes Slesinger money and doesn't want to end the Pooh gravy train.
Online Music Sales Tumble. But the question is how did comScore do the survey and how much does it reflect the recession verses a reduction of sales due to free downloading music. Detailed study methods were not published online, just the general comScore model (see below for their statement). If the study is correct, then P2P file sharing may be having an adverse effect on music sales and this may be taken into account by judges in pending cases and by lawmakers pressured by the RIAA, etc. However, could this be a reflection of consumers' desire to pay for a reasonably priced song, easily, simply, using an alterative business model not yet in place by the music industry, instead of the old CD model?
Check out the survey itself to find out about what comScore reports (summarized below).MORE...
Larry Lessig, Thomas Hazlett, Richard Epstein, Edward Welbourne and Frank Walker weigh in on copyright, stimulating and stifling innovation, the increasing costs to innovation brought by extending copyright. Welbourne discusses an interesting idea: the net present value of a copyrighted work at the time of sale to a publisher, verses the value after each 20 year extension, diminishing over time, which eventually is worth less than 1%. He proposes that copyrighted works go into the public domain, as averaged within a specific category, after the value of works diminish to 1%. It would require an economist to figure it out, but they've got to do better than Congress at this point.
For more on the percents, the economist's amicus brief in Eldred.
Brewster Kahle, director of the Internet Archive, is taking his show on the road. The Bookmobile is his mad creation, thinking it up about a month before the Eldred case went before the Supreme Court. Their motto: "Universal access to human knowledge." (~borrowed from Raj Reddy at CMU).
Brewster and his son, Caslon are driving from Palo Alto to Washington DC, via Berkeley and even Columbus Ohio (for a bookmobile convention!) to print out books (there are 6000 titles) in the public domain. They download from the internet via satellite, on the spot, publishing one at a time, books like a cir. 1900 copy of the Wizard of Oz (be patient, it's a big photo -- but that down-home populist toothy grin is so cute!), Huck Finn and Alice in Wonderland. As the stone out front at the Carnegie Library in Pittsburgh says: "Free to the People".
Archive.org has also been looking into making a moving images archive available for public use, too.
adding to maggie's post on DMCA and Elcomsoft....
Ironically, Dmitry Sklyarov and ElcomSoft's CEO Alexander Katalov have been denied visas by the US State Department in Moscow, even though their visa apps stated that they were coming to the US to participate in the trial.... No reasons were given for the rejection. The deal with the DOJ was that in exchange for Dmitry's testimony, they would drop the charges against him. How absurd can it get?
Moscow-based ElcomSoft Co. Ltd. became a household name last year when, at the behest of eBook software maker Adobe Systems Inc., the FBI arrested Dmitry Sklyarov, a Russian resident and ElcomSoft software engineer who had been visiting DEF CON 2001 in Las Vegas. Sklyarov was incarcerated from July 16 to August 6, 2001.
After a failed attempt to dismiss the case on constitutional grounds, US v. ElcomSoft, the first (and, more importantly, precedent-setting) Digital Millenium Copyright Act criminal trial will begin this coming Monday.MORE...
A classical music fan responds to the NY Times article last week on the Eldred case, and expresses hope that works by artists such as Stravinsky, Shostakovich, Prokofiev and Rachmaninoff will return to the public domain. Just another argument for rethinking the revised law. And he's from my home town. :)
A classical music fan responds to the NY Times article last week on the Eldred case, and expresses hope that works by artists such as Stravinsky, Shostakovich, Prokofiev and Rachmaninoff will return to the public domain. Just another argument for rethinking the revised law. And he's from my home town. :)
The anti-piracy group Music United for Strong Internet Copyright (MUSIC) launched a public education campaign last week, including a TV spot and a newspaper ad. Participating artists include Madonna, Elton John, Eminem, Jay Z and Britney Spears.
According to the website, "copying and distributing copyrighted music without permission is wrong, dangerous, and against the law." I'd say this sentence is a little redundant if you take the stance of this group -- but I guess that just PR speak, eh?
Many consider tinkering (or reverse-engineering) to be an essential ingredient to the innovative process, but many others see it as a tool of the devil. In a 9/26 law.com commentary, Mike Goodwin presents compelling arguments in support of tinkering, a freedom that (like fair use) is not explicitly guaranteed in the Constitution -- but, he suggests, "maybe it should be." Amidst a climate of increasing Hollywood lockdowns (Disney's Eisner is quoted as declaring piracy "a killer app"), this column considers a variety of proposed standards, legislation (e.g. "copyright cop" and "broadcast flag" technology specs) and reports that provoke many questions about the freedoms that many of us currently take for granted.