Law and Policy

March 17, 2004
Behavior Mod by Comcast, or Mickey Mouse Internet

by Farhad Manjoo/Salon (sub req or watch ad).

    "We use the Net as a lifeline," George says. "For anybody for whom this isn't their native country, you'd understand."
    But Comcast, the company that provides George's high-speed Internet service, didn't understand. Last August, the company sent him a letter telling him to quit it -- he was using the Internet too much. The firm said he was violating Comcast's "acceptable use" policy, that he was somehow abusing his service. This surprised George, because as far as he knew he wasn't doing anything illegal or unseemly online -- "We're not using porn sites," he says -- and his contract with the firm didn't spell out any limits on his Internet use. When he called the company, it gave him the "runaround" -- nobody would tell George specifically what he should do to bring his use back in line with Comcast's policies, other than that, as a general matter, he ought to consider using the Internet much, much less.

Even if he was using porn sites, it's not illegal. The fact that Comcast would monitor his use and then tell him he was using his service too much when it's an unlimited service is disconcerting.

    George is not alone. Since the summer, Comcast has warned hundreds, possibly thousands, of customers of potential service termination due to high Internet use. The customers who receive these letters, people who'd always been told that their Internet service was "unlimited," find themselves in a Kafkaesque comedy of errors: The customers say that Comcast tells them they're using the service too much, but it won't give them any meaningful measure of how much is too much.

But it gets worse, Comcast has clamped down on VPN system use by customers, their TOS says no to P2P of any sort, and they allowed AOL to sell it's high speed internet service over Comcast lines but only if they did not offer streaming video that directly competed with Comcast's offerings, and when other Comcast competitors and consumer groups demanded to have the FCC look at Comcast's secret deals as part of the Disney Merger, the CEO called Michael Powell and the issue was dropped.

They are anticompetitive and working hard to maintain their monopoly services, among other things, by hiring Victoria Clarke, Donald Rumsfeld's former spokeswoman, and Lorine D. Card, the sister-in-law of Andrew Card, George W. Bush's chief of staff to remain exceedingly well connected to top government. Keeping the internet open and unrestricted is becoming more and more worrisome.


Posted by Mary Hodder at 08:27 AM | Permalink | Comments (0)
March 03, 2004
"My Day As An Election Judge"

as noted by Avi Rubin (link via Ed Felten, who by the way, has been hitting it out of the ball park on a daily basis for the past month and a half with the most fascinating posts - he must have had a restful holiday break...).

Anyway, check out Rubin's story. It points to things that are better than expected, or worse, with the Diebold voting machines, and things we need to keep an eye on, like procedures between the system and those controlling the system, so that security is maintained. But one interesting point he noted is that voters overall loved the machines, saying they were easy to use. Though he concludes that this view of an easy-to-use machine may make it much more difficult to fight the underlying, and more invisible problem, of the security and accountability issues with the machines and overall system, which he also found during his judging yesterday.

Posted by Mary Hodder at 08:18 AM | Permalink | Comments (0)
March 01, 2004
Wacky Ideas in Ivory Towers? Not According to this Report

Report Raises Questions About Fighting Online Piracy by John Schwartz/NYT is about the Committee for Economic Development report that just came out (Susan Crawford was on this project too, so you know it's be well considered): "Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property." (Note it's a pdf.)

The article says the report concludes the entertainment industry's pursuit of tough new laws to protect copyrighted materials from online piracy is bad for business and for the economy.

The report recommends:

    1. Because quick legislative or regulatory solutions for the problem of digital copyright protection pose risks to innovation and economic growth, and are likely to have unintended consequences in a period of rapid technological change, we should move slowly. Our first concern should be to "do no harm." We should dedicate the next two years to attempting to build consensus about the appropriate role in the digital age for traditional legal safety valves that balance the exclusive rights of creators in copyright regimes with users' rights. The Digital Connections Council looks forward to facilitating this national and international dialogue.
    2. The development and testing of new business models for the distribution of creative content should be given the highest priority by the content industries. We should not turn to law or regulation to protect any particular business model.
    3. Existing solutions to the issue of unauthorized uses, such as enforcement and education, should continue to be explored.
    4. We recognize the need for digital rights management (DRM) systems that will allow creators to be rewarded for their efforts. We are skeptical about government-mandated DRM, and we recommend that manufacturers not be required to build in mandated copy protection technologies. But DRM systems provide a useful "speed bump" for consumers by inhibiting unauthorized uses of materials. During this period of consensus building about "safety valves" in intellectual property law, we encourage continued experimentation in private DRM systems. In particular, the capacity of such systems to accommodate users' rights traditionally allowed under intellectual property law needs to be further explored so that the appropriate copyright balance can be maintained. If government-mandated systems are proposed, they should be evaluated on the basis of their capability to maintain such a balance and their convenience for consumers. Consumers should play a substantial role in evaluating and approving mandated technological protection systems.
    5. Market-based economic tools that provide incentives for copyright-holders to facilitate follow-on innovation should be considered--including measures to provide earlier dedication of copyrighted materials to the public domain.

And Conclusion:

    We are sympathetic to the problems confronting the content distribution industry. It is beyond question that this industry faces real problems that deeply affect its future. But these problems -- perfect copies of high-value digital works being transmitted instantly around the world at almost no cost -- require clear, concentrated thinking, rather than quick legislative or regulatory action. As Thomas Edison said: "There is time for everything." Given the present limitations on bandwidth, the immaturity of many technical protection systems, and the inevitable unforeseen consequences of governmental actions, there is time to lay a stable foundation for intellectual property rules in the digital world.
    Given CED's mandate, the Digital Connections Council has attempted to examine the current digital copyright issues within the context of concern for the overall economic health of this country. We believe this economic perspective -- and in particular an understanding of the sequential nature of innovation -- has not been adequately taken into account in the public debate. We also believe it is not too late for thoughtful discussion to find solutions that will prove broadly acceptable and encourage self-enforcement rather than an increase in litigation or regulation. It will be essential for thoughtful and inventive key stakeholders to sit down together to work through these problems. The Digital Connections Council looks forward to joining in such discussions and hopes this report will provide a helpful perspective.

Let's hope stakeholders includes the people formerly known as consumers.

Posted by Mary Hodder at 08:09 AM | Permalink | Comments (1)
February 27, 2004
Will This Case Add More Fuel to the Fire for Database Protection?

I wonder if this case, and the decision in favor of Berkshire Information Systems against competitor, Inquiry Management Systems, won't cause more support for HR 3261. That's the bill that would make up a whole new sort of intellectual property protection for databases, and is...

    backed by big database companies like Reed Elsevier and Thomson but opposed by Amazon.com, AT&T, Comcast, Google, Yahoo and the U.S. Chamber of Commerce....
    If IMS had won on its DMCA arguments and if the decision had been upheld on appeal, the case would have significantly expanded the scope of legal protection that database owners enjoy.

Let's not allow the bill to pass that would significantly expand the scope of legal protection that database owners enjoy.

Posted by Mary Hodder at 06:50 PM | Permalink | Comments (0)
February 12, 2004
BitTorrent: Phase III of File Sharing


12SHAREchart.jpg

Seth Schiesel/NYTimes says Bram Cohen's BitTorrent represents the next wave for file sharing. BitTorrent is an amazing way to distribute huge files, using P2P to spread out the bandwidth across users. I tried it last summer, in an experiment to see how it worked. The process was tricky, and I don't think impatient or inexperienced users would find it easy, and the fact that it took 36 hours to download one 2 gb file was not attractive. However, it will become more attractive in the future, as people get true broadband connections, and have equal speeds moving data up and down (most home users have midband connections, where there is often double the speed downloading, as opposed to uploading, which speaks to the ways BB providers view "consumers" which is as receptacles, who therefore need mostly down speeds, where up really only for email, right? I mean, you don't think you really need to send anything else out from your system do you? If so, you must be a business user and therefore, get on a different BB plan...).

BitTorrent works by having every downloader's system simultaneously work as an uploading system (you can stop uploading when you are finished downloading, but you can't not upload while your download is in process). Since this is the case, slow uploading speeds mean your whole transfer is slower than if you were just downloading. These files are called seeders. One example of BitTorrent use might be by a software company, with webbased distribution, that wanted to make available it's programs on either a trial or free basis. Another might be a digital library or academic institution that wanted to distribute large research files or databases of information and graphics.

At the Digital Media Summit in NY the other day, Charlie Nesson, Director of the Berkman Center at Harvard, presented a system where "Interdiction" might be used as a form of self-help by content makers to disrupt the transmission of copyrighted media files. His logo was a crow (or what looked like a crow) with a long black beak, holding a seed.

This system would work to the find a middle ground between a DRM/IP regime lockdown, and what Nesson referred to as a "disaster" for the content industry, though I would argue that movies/TV/Cable are different that other media, and each media needs to be considered on it's own, when thinking about these issues. In fact, I think that low quality video files are considered to be of just-okay quality for people wanting a quick glance at content, and so they may download something on one of these networks, but that people really want the big rich high quality screen experience, hence video's inability to kill the experience or desire by people to go out to see a big screen movie, and people aalso love watching DVD's on plasma, because of the rich experience... downloaded files on little screens are just not nice in that way. Imagine watching Lord of the Rings on a five inch screen. But as bandwidth grows, it will become more of an issue, but what if these little files are loss leaders to entice people into the theaters, to buy DVD's or high quality downloads with interesting value added stuff?

The Interdiction system is designed to be a speed bump for those who would pirate, and for those who have more money than time, and would otherwise pay for their files (the system is associated with Scenario Three of the Harvard/G2 Five Scenarios for Digital Media in a post Napster world paper) . It is a form of competition for online digital media that is freely shared, so that the Interdiction would come when something is offered, and instead of a denial of service attack (another form of self-help that ties up an entire system or network, discussed by the incumbent content companies that is an illegal means for stopping filesharing), Interdiction would send a message to a seeder to take down the file and it could tie up just the seeds (not a seeder's whole system) so that no one could download. Nesson talked about a "new release" window to keep the market pristine for selling the content.

I found BitTorrent to be a really interesting system, one that could be so powerful for exchanging information, distributing files without centralization (where the distributor has to pay all the bandwidth costs, verses distributing the distribution costs as well across users), but one that needs work before the general public (those beyond the geeks) can use it.

Posted by Mary Hodder at 04:42 PM | Permalink | Comments (4)
February 06, 2004
The Accountable Net: Using Peer Production for Governance

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.)

Posted by Mary Hodder at 02:48 PM | Permalink | Comments (0)
January 29, 2004
It's Mine Mine Mine, All Mine, Every Little Factoid in My Database! Mine!

Updated post:

Recommended: The Coming of the Anti-Feist, Part II (Donna Wentworth @ Copyfight).

Congress is talking about locking down data in databases. Feist was this case where the Supreme Court ruled that facts (like the temperature, the score of the local hockey team, the number of voters in a state) are not copyrightable, only special arrangements of those facts in databases, collectively are, and then it's the arrangement, not the facts themselves that are copyrighted.

Well, now Congress wants to change all that, allowing the first to arrange something to get control of it completely, including all factiods. Think scientific data, publicly funded research, etc. Bad policy idea all around. Do you really want scientific data tied up like that? Facts that should enter the public domain to be built on for further research? Not to mention the scores of the hockey team? There is no reason for this, and in fact many major companies oppose it, but the copyright cartel is strong, and their interests very short term (lock every thing down, make money now, screw innovation and future development, cause we're makin' quick bucks!)

Check it out. And make your thoughts heard with your legislators. We can't afford this legislation.

MORE...
Posted by Mary Hodder at 08:16 AM | Permalink | Comments (8)
January 20, 2004
Fractals, Digital Divides and Policy

Parker Thompson just attended the Technology, Values and Justice conference this past weekend at U of Washington Law School. Interesting folks like Vint Cerf [one well dressed dude (his bad-ass factor as on par with Sean Connery)], Judge Donald Horowitz and Ed Lazowska, who talked about how the digital divide can be seen like a fractal, where a percentage within a percentage within a total has access and the rest are left out, like this issue left the radar the second Bush stopped keeping stats (note the reports on the site date to 1998 and 95.

    Morton Horwitz Professor and Legal Historian at Harvard spoke next and gave perhaps the best talk of the conference. In a brilliant talk Horwitz discussed access to technology as a right the way we consider access to language education (for example, to non-native speakers) a right. If, he argued, technology is a window to participation in our justice system then denying access to these technologies would constitute denying some citizens access to the justice system. I have heard the argument made that Internet access should be treated as a utility, like electricity or water, but never that it could be considered a requisite to participation in civil society provided for by the Constitution.
    An interesting example he used was a mechanic. Apparently bankruptcy law prohibits creditors from taking a mechanic's tools to cover debts owed, the rationale being that this would deny the mechanic his ability to earn a wage (I may be missing the finer point here). Horwitz posited that this might be analogous to someone in an information profession (say lawyers) having a right to his or her professional books. He goes on to suggest this principle could be extended to protect an individual's right to information (e.g. legal information).

Interesting ideas. Check it out. Parker told me he and the two other students there were perhaps the only non-gray attendees. But he said they were fascinated and it rocked.

Posted by Mary Hodder at 11:28 PM | Permalink | Comments (0)
January 01, 2004
Internet Metaphors and the Law

Frank Field points to a fantastic (as in interesting and thought provoking) article on metaphors used to understand legal and internet issues. Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary. From the abstract:

    While metaphors aid humans in comprehending abstract concepts and legal doctrines, they also may limit human understanding by selectively highlighting various aspects of an issue while suppressing and marginalizing others. Unreflective use of metaphors can lead lawyers to take for granted the "realities" that metaphors enable. A bad metaphor can also simply lead to bad decision making. For example, Cass Sunstein argues that the "marketplace of ideas" metaphor has turned the right to free expression into a degraded form of commerce.

Substitute "journalism" or "digital media" or "technological frameworks" for "legal doctrines" and you see the same is true as metaphors are applied in those instances. We use metaphors to see and convey understandings of complicated ideas, but we limit the understanding at the same time in those discussions. Journalists do it all the time, when they shorten the number of words it takes to tell the story. They sometimes continue applying the same metaphor to situations where that metaphor becomes out of touch over time. Same goes for many of our discussions with digital media, the internet and technology. Making metaphors apparent is something I am experimenting with in the information work I'm doing, and so I found this article helpful.

Posted by Mary Hodder at 11:16 AM | Permalink | Comments (0)
December 19, 2003
Verizon Wins! Subpoenas Not Authorized

Just a quick note, as I'm working on something else at the moment, but good news!

From Reuters: Court Says Net Music Subpoenas Not Authorized

The RIAA has been using DMCA subpoenas to get subscriber's identities in order to sue the ISP's customers for copyright infringement because of file sharing. However, the subpoena process is heavily flawed under the DMCA, where there is no court oversight required for the subpoena, like there would be in a regular action. The District Court in Washington, DC has agreed with Verizon (see the opinion) that existing copyright law doesn't give the RIAA the right to get ISP customer information in the manner they have been under the DMCA.

    "In sum, we agree with Verizon that (the law) does not by its terms authorize the subpoenas issued here," Chief Judge Douglas Ginsburg wrote.

And from Wendy Selzer: "Internet users are the winners...." See Derek Slater for more in-depth analysis of the case and what this means. Derek suggests there is likely to be an appeal, but for now, this may cause Congress to step in to reevaluate copyright issues.


Via Donna (doesn't this sound like a lovely drink, something citrusy and ice-cold, that you might enjoy on a warm roof top at sunset in Rome while watching the glow fade across the tops of the Vatican and monuments like Vittorio Emanuel? Donna is like that, only better: smart, lovely, refreshing, and you feel so fortunate to know her!)

Posted by Mary Hodder at 09:11 AM | Permalink | Comments (2)
December 18, 2003
Diebold Has Uncertified Code in Every System in CA

Freedom-to-Tinker has the scoop on the latest with Diebold, from Kim Alexander at California Voter Foundation: Diebold was found Tuesday to have installed uncertified software in all 17 counties in California where they have voting systems.

    ...Secretary of State Kevin Shelley came into the meeting to address the panel and spoke very firmly and passionately about the need for voters to have confidence in elections. He also suggested that it is possible Diebold could be decertified in California altogether.

Obviously, at this point we can all agree that open verifiable code and paper trails are critical for the veracity public voting software systems. It's nice to know these issues are squarely on the radar of the Secretary of State's office.

Posted by Mary Hodder at 10:02 AM | Permalink | Comments (0)
December 17, 2003
RIAA the New Big Brother?

Check out Clay Shirky's latest: The RIAA Succeeds Where the Cypherpunks Failed

    It may be time to dust off that old issue of Wired, because the RIAA is succeeding where 10 years of hectoring by the Cypherpunks failed. When shutting down Napster turned out to have all the containing effects of stomping on a tube of toothpaste, the RIAA switched to suing users directly. This strategy has worked much better than shutting down Napster did, convincing many users to stop using public file sharing systems, and to delete MP3s from their hard drives. However, to sue users, they had to serve a subpoena, and to do that, they had to get their identities from the user's internet service providers.
    Identifying those users has had a second effect, and that's to create a real-world version of the scenario that drove the invention of user-controlled encryption in the first place. Whitfield Diffie, inventor of public key encryption, the trategy that underlies most of today's cryptographic products, saw the problem as a version of "Who will guard the guardians?"
    In any system where a user's identity is in the hands of a third party, that third party cannot be trusted. No matter who the third party is, there will be at least hypothetical situations where the user does not want his or her identity revealed, but the third party chooses or is forced to disclose it anyway....

In other words, the third parties are our ISPs, and with the DMCA subpoena problem, our identity is vulnerable to the likes of the RIAA or anyone else who grunts "copyright infringement," no matter how stupid or not true.

    The RIAA's successful extraction of user identity from internet service providers makes it vividly clear that the veil of privacy enjoyed by the average internet user is diaphanous at best, and that the obstacles to piercing that veil are much much lower than for, say, allowing the police to search your home or read your (physical) mail. Diffie's hypothetical problem is today's reality. As a result, after years of apathy, his proposed solution is being adopted as well.

Which brings us to the Darknet, which we've written about quite a bit before. So now we all have Waste accounts and trade secretly, and the resulting loosely bundled groups of people, using encryption.

Frankly, I believe that sharing copyrighted materials amongst *real* friends (you know, like taping a TV show and lending it to a friend) is legal fair use, and so small networks of friends that know each other, and recommend stuff, share it, falls into this category for me. That is not to say that sharing copyrighted works with all 60 million of your best pals on KaZaa is right, as I think that IS copyright infringement.

Posted by Mary Hodder at 09:50 AM | Permalink | Comments (1)
December 15, 2003
Creative Commons 1 Year Celebration

Last night, Creative Commons marked their first year anniversary with a party where Larry Lessig, Glenn Otis Brown and Chris Lydon among others talked about the many, many accomplishments over the past year, and played a wonderful flash animation about CC or here, particularly emphasizing the export of CC worldwide. One thing they mentioned was that all content online from the radio show, Tech Nation, will now be under a CC license, and they have had more than a million uses of the licenses over the past year.

The party was a great time to meet up with Stanford and Berkeley folks, artists and geeks, and those who support having balance between copyright and the public domain. I got to meet Joi Ito, whose sister I met at a conference last spring, and since she spoke about him in such a sweet way, I have wanted to meet him ever since. So that was fun. Also, the videoblog goddess (and otherwise all around goddess), Lisa Rein was there, taping, and presumably will have the video up on her blog soon.

Also, considering donating to Creative Commons here.

Update 121903: Check out Christopher Lydon's interview with Larry Lessig done just after the event (you can hear the last of us in the background of the audio interview). I gave Chris a ride back to Berkeley and he said he said he would get it up quickly, though he's been traveling, and he did!

Posted by Mary Hodder at 10:45 PM | Permalink | Comments (0)
December 06, 2003
Compulsory Licensing Confab Notes

Update: Derek Slater posts his notes.

Eugene Volokh (brief).
Ed Felten (extensive).

    Ed: The afternoon discussion was about voluntary license schemes. And here an interesting thing happened. We talked for a while about how one might structure a system in which consumers can license a pool of copyrighted music contributed by artists, with the revenue being split up appropriately among the artists. Eventually it became clear that what we were really doing was setting up a record company! We were talking about how to recruit artists, what contract to sign with artists, which distribution channels to use, how to price the product, and what to do about P2P piracy of our works. Give us shiny suits, stubble, tiny earpiece phones, and obsequious personal assistants, and we could join the RIAA. This kind of voluntary scheme is not an alternative to the existing system, but just another entrant into it.

You sly dogs. When you, and the 39 other folks at that thing start wearin trucker hats, talkin' trash, groovin backstage with the likes of Moby or Madge, we say bravo. Walk a mile in the RIAA's shoes before you dis 'em. Fight em with hip. Or not.

    This is not to say that a few ISPs or universities can't get together and cut a voluntary deal with the existing record companies (and other copyright owners). Such a deal would still be interesting, and it would lack some of the disadvantages of the more ambitious mandatory license schemes. Of all of the blanket license schemes, this would be both the least risky and the easiest to arrange. But it hasn't happened yet. (Penn State's deal with Napster doesn't count, since it's just a bulk purchase of subscriptions to a service, and not a blanket license that allows unrestricted use of music on the campus.)

Smart folks. Seems to me they will keep working this over until they come up with something good.

As other's post their thoughts on the Harvard/Berkman conference yesterday, I'll update.

Posted by Mary Hodder at 09:20 AM | Permalink | Comments (0)
December 04, 2003
Piracy = Terrorism?

"Piracy is like terrorism today and it exists everywhere and it is a very dangerous phenomenon." - says the WIPO Director at the UN summit.

No, it's not. Nice try. Terrorism is about harming people physically, and causing terror, for a political agenda. People sharing media is about people sharing media with other people, for cultural, entertainment and personal reasons, whether or not you agree with it, or are willing to get off your duff to figure out a business model that works with P2P and digital media, instead of against it.

Posted by Mary Hodder at 07:00 PM | Permalink | Comments (0)
December 01, 2003
This Isn 't Your Father's FOAF

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.

As mentioned before, how do you do the IP when "It's the collective I.Q. of the Internet coming to your aid," [said James C. Spohrer, director for services research at Almaden].

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.

Dave Weinberger on FOAFs, the privacy aspects, and funny ways we use these online networks: putting the shill into social or Leveraging Mere Acquaintanceships for Business Success since 2003.

Posted by Mary Hodder at 08:15 AM | Permalink | Comments (1)
November 25, 2003
Diebold Folds

Diebold filing here (dated 11/17/03 - the date of the OPG v. Diebold hearing):

    ...having issued notifications in good faith compliance with the DMCA, has decided not to take the additional step of suing for copyright infringement for the materials at issue. Given the widespread availability of the stolen materials, Diebold has further decided to withdraw its existing DMCA notifications and not issue further ones for those materials.

Per Larry Lessig via Donna Wentworth.

Posted by Mary Hodder at 04:05 PM | Permalink | Comments (1)
November 20, 2003
When Diebold Sends a C&D to Dennis Kucinich and House.gov

...I want to be a fly on the wall. So says Doug Simpson (via Donna). Kuchinich has posted excerpts of the Diebold memos from his house.gov site:

    "Diebold has been using coercive legal claims to intimidate internet service providers and even universities to shut down websites with links to its memos and remove the memo content. Under copyright laws, however, universities are exempt, and posting links to the memos is not considered a violation of the law. By abusing the Digital Millennium Copyright Act, Diebold has intimidated numerous internet service providers to comply with its requests. The damage is two-fold: 1) limiting the public's information about the security of its voting machines, and 2) expanding corporate control over our most free medium of expression, the Internet.

Now there's a stand on keeping the internet free.

Posted by Mary Hodder at 07:39 AM | Permalink | Comments (1)
November 19, 2003
Derek Slater is Spot On Regarding Aimster

See his letter replying to this Politech post asking for support of John Deep's Petition for Writ of Certiorari.

    The Aimster case's facts form a bad foundation for a reevaluation of Sony in the P2P era. At best, Aimster is a somewhat centralized service, not wholly unlike Napster, and has thus far had trouble proving any non-infringing uses. At worst, Aimster actively encouraged infringement on its fully centralized P2P service. Its tutorial's screenshots showed how to download copyright holder's content specifically, and the centrally-controlled Club Aimster service helped automate acquisition of copyrighted works on Aimster. The record industry alleges that John Deep has boasted that Aimster is "Napster squared."
    [...] With that in mind, why give the Court a chance to write an overbroad opinion? We'd be better off with the Court evaluating Grokster and Morpheus, a much more similar situation to Sony. The Court doesn't like protecting shady characters and, if the Court adopts my "worst case" interpretation, it will be happy to rule against Deep and anyone who seems remotely like him. The Court will treat all P2P as a tool of infringement, rather than just a tool.
    [...]Let's not put Sony on the line here by bringing Aimster's case before the Supreme Court. To give Sony, P2P, and Internet innovation their best chance to survive, we should wait to bring the best possible defendant before the Court. If you must support this case, please do so only by focusing on the proper standard of review, as the EFF did its appeals amicus.

When I got the email this morning from Declan McCullah, I thought it was odd, but didn't have the time to look at this today, nor could I have done as good a job as Derek in reply.

Posted by Mary Hodder at 07:09 PM | Permalink | Comments (1)
November 18, 2003
Dave Winer on Media Companies, Control of the Internet and the Election

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).

In the comments, Seth Finkelstein says it's not realistic, and Jay Rosen responds that he's half right:

    Maybe his [Dave's] idea is, "Let Clark and Dean work it out. They're smart enough."
(See also Rosen's assessment of American Politics; it's excellent). And Thomas Kalil responds to Dave with this:
    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.

Posted by Mary Hodder at 07:26 PM | Permalink | Comments (1)
November 12, 2003
Diebold Latest: The Effects of Student Spread Memos on CA Secretary of State

The Daily Cal has a piece on Joe Hall and Notice and Takedown request (Sect 512 under the DMCA) on the Diebold memos he posted: Posting of Leaks Lands Student in Hot Water. Joe responds here:

    It's too bad that Andrea couldn't get some quotes from the other Berkeley students participating in this action as I'm sure they have valuable things to say: Parker Thompson, Ping Yee and Sean Savage. This action achieved it's goals of getting the documents out there and in to the hands of investigators solely because so many students weighed the issues (copyright v. freedom of speech, privacy, etc.) and were willing to take the risks involved with posting the documents.

Kim Zetter/Wired with E-Vote Firm's Bill Comes Due says that the CA Secretary of State's office is forcing Diebold to pay for an audit, because they installed uncertified software code into CA voting machines, in order to win certification for a new model. According to Zetter, this is due to student actions to get this information out, and the CA SoS offices reading some of these memos and taking action:

    Release notes for the 1.18.17 version that were posted on the Web recently with other internal Diebold correspondence, indicate that several critical fixes were made to the software in addition to installing several new features.

If this is true, students at Swarthmore, followed by students at many other institutions including those above at Berkeley, in spreading the Diebold memos around, have accomplished the goal of causing those with review power over Diebold systems to take another look at Diebold's work. Let's hope the review really scrutinizes this company's activities and that EFF and OPG's suit against Diebold brings about the conclusion that using the DMCA to suppress speech necessary to the functioning of the democracy is wrong. Even if the review doesn't cause the state to discontinue using Diebold systems or require severe changes (and I'm sure the pressure is enormous TO certify), the fact is the memos raise disturbing issues and the review is very necessary. If companies providing services of this sort feel that they can quash documents out on the Internet by using the DMCA, if Diebold succeeds on this point, we and our democracy will be the poorer for it.

Also note that Verified Voting.org has a petition in support of a bill introduced by Representative Rush Holt of New Jersey requiring a voter-verifiable paper trail. Consider looking over the bill and signing the petition. Also Parker Thompson notes that Greg Palast of the BBC spoke at Berkeley and in the Q&A, received over 200 note card questions, where 25% asked about black box voting issues.

Posted by Mary Hodder at 07:42 AM | Permalink | Comments (2)
November 10, 2003
Derek Slater, Harvard and Diebold

...in the Crimson. Derek posted the Diebold memos on his Harvard account website, wrote about it on his blog, and received a C&D on October 31, 2003. Harvard rules say he gets two chances for copyright violation, before he loses his account. Diebold served the C&D under the DMCA rules, maintaining that the memos are copyright protected, and Harvard responded by disabling the documents.

    Derek: "These documents are potentially important to our democracy and the integrity of our voting system," he said. "It's necessary to spur debate."
    The DMCA uses four criteria to decide whether copyrighted material can be made freely available, Palfrey said. These include the purpose of the infringement, the nature of the material, the amount of material used and the potential effect on the documents' market, he said.
    Palfrey said that Slater's case against claims of copyright infringement are bolstered because the documents were used in an academic and not a commercial manner and they were factual -- not creative -- works. He added that Slater did not damage their market value because Diebold never intended to sell the documents.
    "Derek has a very strong fair-use case," Palfrey said. "I think the University should be, and is, open to students asserting their rights under the law."

A hearing will decide the matter of whether the policy of copyright violations applies to this kind of speech.

UPDATE: Derek has noted in the comments that even though the article said there would be an upcoming hearing, in fact there isn't one scheduled. Also, the article erred in stating that Harvard sent the C&D to him. In fact it was Diebold. And above, in the quote about the four criteria and the DMCA, instead there are four factors (which were used before the DMCA was passed) for determining fair use of copyrighted works.

Posted by Mary Hodder at 08:21 AM | Permalink | Comments (5)
November 09, 2003
Diebold and Politics

Melanie Warner/NYTimes report on Machine Politics in the Digital Age, about Walden W. O'Dell, the chief executive of Diebold Inc., who:

    sat down at his computer to compose a letter inviting 100 wealthy and politically inclined friends to a Republican Party fund-raiser, to be held at his home in a suburb of Columbus, Ohio. "I am committed to helping Ohio deliver its electoral votes to the president next year," wrote Mr. O'Dell, whose company is based in Canton, Ohio.

It would make sense for outside contractor's providing voting systems and software to be held to the same standards as federal employees, who are restricted from involvement in political activities. It just seems as though those who program, control and maintain the systems should maintain an impartial stance.

Posted by Mary Hodder at 07:56 AM | Permalink | Comments (2)
November 05, 2003
Diebold Case Gets Accelerated by Judge

Read about it here. Eff is representing an ISP, the Online Policy Group (OPG), and two Swarthmore students, Nelson Pavlosky and Luke Smith in a suit against Diebold (response pdf), who has been challenging the right to post copyrighted internal memos that reveal Diebold touchscreen voting system problems. The Judge, Jeremy Fogel, of the federal district court in San Jose will hear the OPG v. Diebold (Case Number C-03-04913 JF) on November 17, 2003.

Oh, and speaking of free speech on campuses, John Leo/Town Hall have this on the Sheldon awards for university presidents who manage to quash speech (my fav: opposing intellectual diversity with the excuse that it would threaten academic freedom.) While Diebold is outside of the university system, they've certainly rivaled and exceeded the examples given in the article. Maybe they could make a special category of Sheldons, sort of a Best Foreign Film thing, for outsiders who really achieve über status in the field. It would be a Lifetime Achievement Award for Managing to Kill Speech Across Many Campuses, by an outside company, using copyright as your trump card. It could have a little one-eyed jack card, with a smile, teeth glinting with a dollar sign, golden copyright symbols floating around Jack's head, being held by the spineless Sheldon statue....

Update 110703: Wired has this: Suspect Code Used in State Votes

Posted by Mary Hodder at 07:37 AM | Permalink | Comments (14)
November 03, 2003
EFF Represents the Online Policy Group v. Diebold, Inc.

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.

John Schwartz/NYTimes front page today: File Sharing Pits Copyright Against Free Speech.
Steven Levy/MSNBC and Newsweek: Black Box Voting Blues.

/.ing, and Donna Wentworth has all the links.

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!

Posted by Mary Hodder at 04:02 PM | Permalink | Comments (2)
October 28, 2003
Cease and Desist Me, Babe

Why War? has a list of the additional university sites with the Diebold memos posted. UCBerkeley's own Parker Thompson and Joe Hall have joined with the other mirrors, and I'm linking to them. Under Swarthmore's policy, just linking is grounds for cutting off network access. Course, I'm not going as far as James Grimmelmann at Yale, who links to linkers linking to linkers linking to linkers. Or Derek Slater at Harvard, who's just linking everywhere, writing letters and mirroring.

How many more links do you need, before you get the picture, Diebold? Voting is too important to have you hide the goods. Cause frankly, we can link you under the table.

Is It Real?
Although Ernie Miller has noted that in the AP article, Diebold's CEO Jacobsen has said, "We're cautioning anyone from drawing wrong or incomplete conclusions about any of those documents or files purporting to be authentic." If they are not authentic, the DMCA doesn't apply in this case.

The Prof Speaks on Linking Policies at Swarthmore, and More
Timothy Burke of Swarthmore's History Department says:

    If Swarthmore could do one thing differently, it would be to move to a DMCA interpretation that assumes liability only over content hosted directly on the site. At the moment, the college's IT administrators are using an interpretation that encompasses direct links to copyright-violating content as well as directly hosted content. I think that's a mistaken (if common) interpretation of the requirements of the law, and so do a lot of other scholars and observers. But even then, I'd rather we make that change in policy in a considered way, with a full awareness of what we're doing.

This after he criticized Ernie Miller and Siva Vaidhyanathan for blindly repeating what they find at the Why War? site, when in fact, Siva pointed to Ernie, who has been doing direct reporting after calling Swarthmore's IT department and various people at the Why War? site. None-the-less, Burke makes a good point about the point: we're here to point out how ridiculous the DMCA interpretations are about linking, as well as why companies that provide anything to do with voting should be totally transparent. And so the protest needs to be directed, responsible and thoughtful.

C&D's For Everyone
Why War? also reports that Amherst and MIT have received cease-desist letters in addition to Swarthmore.

Notable
Steven Levy/MSNBC suggest that the politicians start listening to the geeks on this one. And Seth Finkelstein suggests the Administration listen to this. And Tom Tomorrow does Diebold.

Posted by Mary Hodder at 07:45 PM | Permalink | Comments (7)
BF: Derek Slater Makes a Good Point
    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.
Posted by Mary Hodder at 08:48 AM | Permalink | Comments (0)
October 24, 2003
EFF's RIAA Subpoena Database: Aggregate Data (Updated)

Wendy Seltzer sends the latest from EFF:

    There are now 1633 subpoenas in EFF's RIAA subpoena database, all from the D.C. District Court through October 1. The RIAA has filed at least 200 more through Oct. 21, for which the court has entered captions but not yet posted subpoena documents. We are also looking to begin searching other district courts, as we know there have been some subpoenas filed outside DC.

ISPs (and other entities served, with some alternate names collapsed):
539 Comcast Cable Communications, Inc.
299 SBC Internet Communications, Inc.
164 Time Warner Cable
250 Verizon Internet Services, Inc., GTE.Net LLC (d/b/a Verizon Internet Solutions), Verizon Avenue Corporation, Verizon Media Ventures, Inc.
99 Charter Communications, Inc.
68 Cox Communications, Inc.
67 Adelphia Communications Corporation
37 RCN Corporation
13 EarthLink, Inc.
9 CenturyTel Internet Services, LLC
8 Mediacom Communications Corporation
8 Grande Communications
8 BellSouth.net, Inc.
8 America Online, Inc.
7 Earthlink, Inc.
6 New York University
6 InterQuest Communications
4 Loyola Marymount University
4 Bentley College Academic Technology Center
3 Qwest Communications, Inc.
3 Insight Midwest, L.P.
3 Boston College
2 Suntech Systems, Inc.
2 Sprint
2 San Bruno Municipal Cable
2 Northeastern University
2 CSC Holdings, Inc.
1 WideOpenWest Holdings, LLC
1 University of Southern Californiay
1 Speakeasy, Inc.
1 Seren Innovations
1 Qwest Communications Corporation
1 Pacific Bell lnternet
1 Massachusetts Institute of Technology
1 Loyola University Chicago
1 Illinois Institute of Technology
1 Greenville Electric Utility System (GEUS)
1 DePaul University
1 Columbia University
1 Choice One Communications lnc
1 Boston University
1 BlueMarble Telecom, LLC
1 AT&T Worldnet Service
1 Armstrong Cable Services
1 America Online
1 Altrio Communications, Inc.

Filesharing Services
1492 KaZaA
43 iMesh
32 Gnutella (Bearshare)
26 Grokster
14 Gnutella (Limewire)
12 MP2P (Blubster & Piolet)
6 Gnutella
3 Gnutella (Shareaza)

University recipients
6 New York University
4 Loyola Marymount University
4 Bentley College Academic Technology Center
3 Boston College
2 Northeastern University
1 University of Southern California Doheny Memorial Library
1 Massachusetts Institute of Technology
1 Loyola University Chicago
1 Illinois Institute of Technology
1 DePaul University
1 Columbia University

This is an update from the last post on the subpoenas.

Posted by Mary Hodder at 06:44 AM | Permalink | Comments (0)
October 18, 2003
Free as In Freedom, Not Beer (or Music)

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.

Ernie also points to an open source audio media player/ripper. Good stuff.

Posted by Mary Hodder at 08:04 AM | Permalink | Comments (2)
October 16, 2003
Broadcast Flag Up Before the FCC by the End of the Month

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.

Posted by Mary Hodder at 11:58 PM | Permalink | Comments (0)
October 14, 2003
Berkeley Library Planning RFID Tags For All Books

says Mathew Artz/Berkeley Daily Planet.

Berkeley librarians insist that embedding their books with a state-of-the-art monitoring device despised by privacy advocates will not grant Big Brother a glimpse at patron's reading material.

"We're not going to fight the Patriot Act this hard and then just give away information," said Berkeley Director of Library Services Jackie Griffin, who added that, after careful study, she planned to purchase Radio Frequency Identification Devices (RFID) before next June.

But, UC Berkeley database researchers were skeptical, because they pointed out that it is the collective use of RFID that can be problematic. The more use, the more incentive for many to get readers to observe personal information. Of course, the Berkeley Public Library may be very responsible in their implementation, but if the RFID information is not encrypted, even if it's just a book title and author, if others read the tags as people walk by with the books, and then aggregate the information with other 3rd party personal information known about the person, there could be serious privacy concerns. In many ways, Berkeley is really a small town and the same folks walk by every day. As RFID is more widely adopted, readers might pick up several tags to collect a variety of information about one person. Imagine if a tag in your eye glasses, a tag in your book and a tag in your shoes gave aggregated information that meant it was pretty certainly you, pin pointing you at a particular place and time, that could then be aggregated with other address and birthday information about you that is publicly available.

It would change all our thoughts about being able to be anonymous on the street, read a book in private without the scrutiny of everyone around, and our possessions and consumer purchases too might be rated to tell whether we are a good target for advertising or some other message or information. Why is that a concern? Further segmenting people means that while some may only get targeted ads and information, and this might be good for getting information you want and spam/ads you don't, there may be others excluded from information that society uses to understand itself and make decisions. Differentiation in marketing, if it goes too far, might eventually lead to the exclusion of whole classes and types of people from information society uses to participate in certain kinds of interactions. It remains to be seen how this kind of exclusion could lead to the further amplification of classes in our society and culture.

Currently, the Berkeley Library uses UPC tags for each book, and offers self-checkout.

Posted by Mary Hodder at 06:43 AM | Permalink | Comments (1)
October 12, 2003
Copyright Issues for Bloggers

... by Eugene Volokh as quoted by EdCone.com.

Q: Does the First Amendment cover weblogs?

Eugene Volokh: Absolutely, just like it covers newspapers, magazines, and the like.

Q. What protections afforded to print and TV journalists might not apply to bloggers?

Volokh: Hard to tell for sure. There are some statutes and state constitutional provisions that provide journalists *more* protection than is required by the First Amendment, and some of these statutes are by their terms limited to certain media. The hard question is whether these terms should be read as covering blogging and the Web generally, which didn't exist when many of the provisions were written. A lot depends on the particular terms of the statutes, and, when the statutes are vague, on the views of the judges. I discuss some examples -- especially retraction statutes that can decrease the liability for libel, reporter's privilege statutes, and press credentials -- here: http://techcentralstation.com/120502B.html.

Q: What other implications under press and copyright laws do weblogs raise?

Volokh: By and large, the same ones that other media -- books, newspapers, magazines, and so on -- raise. Generally speaking, the issue under most such laws is the message, not the medium. If you can say something in a newspaper, you can say it in a blog. If it violates the law in a newspaper (for instance, if it's libelous, a copyright infringement, false advertising, a threat, and so on), then it violates the law in a blog, too. There are some exceptions, but this is the general rule.

Posted by Mary Hodder at 11:42 AM | Permalink | Comments (1)
October 11, 2003
Lawmeme Post Title Altered in Ironic Situation

Ernie Miller of Lawmeme writes that he did a post there on the FCC decision about Bono's use of the word "fucking" on TV. The title contained "fucking" in it, and seems as though it was intended to push the boundaries of media expression (in an ironic and humorous way) because the FCC has with its decision. So it is with further irony that Lawmeme, which is a blog about the first amendment and free expression, technology, IP and the internet, and utilizes a medium that is less formal, quicker, irreverent and more blunt than say, law reviews that are more formal and less confrontational, would have some members of the group blog objecting to the ironic use of the word "fucking" in the title.

Ernie writes: I recently did a short little story on the FCC decision that Bono's use of the word "fucking" on TV was not indecent (via BuzzMachine). The title of my post was "A Fucking Interesting Decision from the FCC". Ironically, my use of the term "Fucking" in the title of the post was deemed unprofessional. The EIC of LawMeme demanded that I either change the title to "FCC Rules on Use of 'Fucking'" or delete the post. Without noting any of the irony, another editor of LawMeme instead changed the title to: Bono Says "Fucking" on TV; FCC says "Ok".

I can understand some people being offended by the post, but that is the point. The FCC doesn't think this use of "fucking" fits their definition of indecent, because the word was not used by Bono in a sexual context, and the same goes for Ernie's title. The idea for Ernie was to make this clear using that title, and with all due respect, it seems that some of the folks at Lawmeme missed that point.

MORE...
Posted by Mary Hodder at 03:55 PM | Permalink | Comments (1)
October 09, 2003
Shift Key Again

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.

/. discusses. And Alex gets interviewed.

Posted by Mary Hodder at 02:28 PM | Permalink | Comments (1)
Oak Park School District Sued Over WiFi

ChicagoBusiness.com and the Register are reporting that parents at the Oak Park School District in Chicago are suing to stop the use of WiFi in the schools because they fear the health risks of the Fi. WiFi Networking News cites the suit (pdf) which "alleges that Oak Park Elementary School District 97 has "ignored the substantial body of evidence that high frequency electro-magnetic radiation poses substantial and serious health risks, particularly to growing children". WiFi Networking News says the suit, "cites 30 studies (citations not included in this document, unfortunately) that connect EMR at high frequencies and signal strengths comparable to WLANs to health problems."

This is something I've just been researching for another project (WiFi distance, not the radiation risks) and since anything can block the signals easily, and the signals don't go far, and they are not broadcast right next to your body as cell phones are, I wonder how reasonable this is in terms of health risks. Certainly, there must be more danger from cell phone use considering the promixity of use to our bodies. Cell phones work at 1.8ghz, cordless phones are most often at about the same frequency at 2.8ghz, and microwaves at 2ghz are very close to the WiFi frequency. In any event, it will be interesting to see what happens with the case, and what those 30 citations are, to see whether this is a problem. However, if it is, you can extrapolate that since everything electronic we use emits some wave, it may be that one thing isn't a problem, alone, but that all electronica aggregated together used day-after-day, and running around us all day, might create a health problem.

Posted by Mary Hodder at 02:24 PM | Permalink | Comments (1)
October 07, 2003
Voting

Just a short note, as I have a midterm shortly. So I voted yesterday at the Registrar's office. People were piling in. They were using the Diebold system, which is I think a first for Alameda county. The Registrar swore they weren't networked, nor is the server that aggregates the votes. However, if a vote process gets messed up, they don't print out people's choices, either at the moment you submit the vote onscreen, or later, when tallying up everything. Considering the issues with Diebold, and other voting systems, I think this is a problem. Also, Diebold has not been open about their system code and architecture, and this needs to be a requirement for any system we approve for computerized voting. See Frank's round-up of links on these issues.

1. Go vote today at the polls if you haven't voted over the last month at the Registrar or absentee. Look up your polling place here.

2. Write/call the state elections commission to express your concerns, if you have them, over the computerized voting procedures and Diebold. Ask them to require open code review, and the printing of a copy of all votes taken.

Also, check out this market analysis of the election. (thanks, Gawker.)
Brown: Governor Gray Davis out (as of Oct 6: top line)
Blue: Yes on recall (second from top)
Black: No on recall (third from top)
Purple: Governor Gray Davis in (fourth from top)
Red: Recall cancelled (bottom)

CAElection.gif

Also, see this on predicting the election.

Posted by Mary Hodder at 06:54 AM | Permalink | Comments (2)
October 02, 2003
Privacy Rights Depend on the Kind of Information Requested

Seth Schiesel/NYTimes covers your privacy with respect to your entertainment choices in Your Own Affair, More (VCR) or Less (MP3). Basically, if the RIAA wants your personal info from an ISP because of suspected filesharing, it only need write a subpoena and send it to your ISP. No judge, no opportunity to protest by the user. No privacy law in place to protect any user from having their information requested and delivered by the ISP. On the other hand, if say, the IRS wants your cable records, they must show a judge good reason, and the user has the ability to respond, before the information is turned over to the requesting party. However, there is no statute that covers user privacy for satellite cable.

"Consumers are almost totally unaware that different modes of communication carry with them different expectations of privacy and have different rules," said Paul Glist, a communications lawyer with Cole, Raywid & Braverman in Washington who has represented major cable-television companies. "Every line of business has a different set of regulations, and it really is a maze. There are many times when a company comes to me and they just want to do the right thing and they can't figure it out. You might have one law saying you have to disclose certain information to law enforcement and another law saying you can't disclose the information unless other conditions are met."

For instance, federal law says law enforcement agencies may monitor the phone numbers a citizen is dialing, as they are being dialed, after certifying only that the information is "relevant to an ongoing criminal investigation." Under that provision, the person under surveillance need not even be the person suspected of breaking the law. Generally the subject of that surveillance is not notified of the government's action.

By contrast, a separate law says that even when law enforcement agencies obtain a court order to gain access to a consumer's video rental records, the consumer must be notified before those records are turned over.

Very confusing, but the article does make the point that distinguishing between different types of technologies that in the digital world are really pretty similar is silly, and therefore, the crazy patchwork quilt of privacy protects that differ from one technology to the next should be streamlined. And as the quote above notes, keeping track of the differences is hard on companies, too.

Posted by Mary Hodder at 01:31 PM | Permalink | Comments (0)
Hackers, Twinkies, Somebody Did It But It Wasn't Me

Entrapment -- Incriminating Peer to Peer Network Users (pdf) by Anonymous (or "have2Banonymous") is a seemingly academic paper that suggests some "twinkie" defenses for those subpoenaed or sued by the RIAA for file sharing. Basically, the idea is that if accused, rather than settling, the accused could say that malicious attackers or hackers tricked the accused into downloading and unknowingly sharing the files, or, the attackers planted say, 1000 files (around 2 gbs?? How do you slip that past someone?).

New Scientist has an article on the paper, Innocent file-sharers could appear guilty, that suggests the paper's assertions are reasonable. While security experts quoted in their article do say attacks could happen, and technically, it does appear to be possible on some networks under certain circumstances, why would anyone do it? And by manipulating file requests on those networks, how would they get enough files planted on any one user's harddrive to cause problems? I mean, a user would have to be on filesharing networks often, for long periods, and send many file requests, and the hacker would then have to alter each request, and then the user would have to select the files the hacker intended the user to select, for download. Yes, it's possible, but it seems extremely unlikely, and as a defense? What judge would take this seriously?

There was the recent case where a guy who says he didn't download child porn, used this kind of defense to say that he didn't know he had it and thought it was placed on his system by some spyware Trojan horse he probably surfed/clicked past. That seems more plausible, because porn purveyors have an incentive to get people to come to their sites and to install spyware to watch where users go and what they do there, to try to get more business.

Why would a hacker/spyware/other program put files on your computer? I can see putting a couple of child porn pictures (small k download so it's quick and relatively unnoticeable, and the idea is to entice you to their site to spend money), but 3mg mp3 files would be bigger, inconvenient to hide, and what is the incentive to place them on your system? I can't see a judge buying it other than accepting a general computer ignorance by the user. But if the user's machine has something like KaZaa installed, and had a 1000 unauthorized files on their system, and the RIAA downloaded 10 or 20 of those files to verify them as unauthorized files, the accused would have a hard time claiming that they were tricked by attackers into downloading files some of the files, or tricked by KaZaa into sharing them. It may be true, but they installed a file sharing program, had some files intentionally, and were still sharing unauthorized files.

This paper has an anonymous author, and though it's written in an academic style, with some code that looks real, it's strange. Why would the author not want anyone to know who they were if they were advancing something reasonable? They might not want the information connected to them, but at that point, it's much harder to take this seriously. For example, at the very end of the paper, the author suggests that someone accused of filesharing copyrighted works could show "the authorities" the paper to claim the files were placed there, and "they probably were." Why would any judge believe a paper with no author that advances a questionable defense? First of all, if you get sued, you don't go "directly to the authorities", because these suits are a civil matter. You get a lawyer or defend yourself, and the only authority in the case if it goes to trial is a judge, not the police. And how does the author know a user's files were placed on the user's system by someone else, as he suggests?

This paper reminds me of those old hoax email that prey on people's ignorance, in this case about computers, and what is reasonable. I just don't see the motivation for planting mp3s on people's systems, except in rare cases of personal vendetta. Which also seems ridiculous, because I can think of much easier ways to get to someone if you wanted to do it. It just seems farfetched.

Frank also mentions this, and /. discusses.

Update: Fred Von Lohmann, Meditations on Trusted Computing. He talks about being in control of and trusting your own system, as well as having others trust your system. An interesting contrast to the paper mentioned above. And Seth Schoen posts his paper: Trusted Computing: Promise and Risk which, according to Cory, is a "...long-awaited, brilliant white-paper on Trusted Computing. Seth has been briefed as an outside technical analyst by all the companies working of Trusted Computing architecture, and has had his paper vetted by some of the leading security experts in the field. This is the most exhaustive, well-reasoned, balanced analysis of Trusted Computing you can read today. Don't miss it." /. discusses.

Posted by Mary Hodder at 07:48 AM | Permalink | Comments (0)
October 01, 2003
Music Rolls On

I listened to the first hour of the Senate Committee on Governmental Affairs hearing yesterday. From this panel: Mitch Bainwol, head of the RIAA, Jack Valenti head of the MPA, LL Cool J and Mike Negra, President of Mikes Video, Inc., State College, Pennsylvania, one noteworthy impression: they seemed to lack understanding of the difference between client-server systems (Napster) and P2P models (KaZaa, Grokster). Considering that Napster was ruled to be illegal, because it used a centralized server to make connections which the company could control, and the other P2P models are still here because they are dispersed without centralized control, I would think they would want to understand the distinction. Because of this lack of distinction, they appeared yesterday to want to deploy solutions that are tailored more to a centralized model, like popup messages warning users (who are not connected to a centralized server) about unauthorized file sharing. Here is the Katie Dean/Wired article on this, although it focuses mostly on the different artists' perspectives from Chuck D and LL Cool J.

In other news, Madonna is being sued for copyright infringement by the son of Guy Bourdin over her videos for "Hollywood." Apparently, the videos copy many of the images he made for Vogue in the 50's. Do a compare and contrast for yourself. Note that Madonna was the one who planted files on P2P networks a few months ago with recordings of her voice where she asked "what the f*ck do you think you're doing," which then led to a series of remix contests of the files.

Posted by Mary Hodder at 07:33 AM | Permalink | Comments (0)
September 28, 2003
Confessions of a Spam King

Here. Folks like this will extrapolate spamming genius to game compulsory license systems. I think paying close attention to spammers' methods is important in trying to figure out how to make a system that will prevent others from scamming a CL system. Via Lawmeme.

Posted by Mary Hodder at 11:35 AM | Permalink | Comments (0)
September 25, 2003
Thank Goodness for People Like Brewster Kahle

Yesterday he gave a talk at the Tech Policy class, mentioned here before, on wifi, the Internet Archive and the policy issues they face as they work on their projects. Those projects include making wifi access from 17 rooftop nodes around SF (I'm hoping Berkeley is next!!), scanning a million books, sending out roving bookmobiles where public domain books can be downloaded and printed on the spot in places like India, Egypt and Uganda, and archives of books, audio, moving images, broadcast, software, and the web. His goals for the archive are preservation and access. They've also given a copy of everything they are archiving to the Library in Alexandria, which to date is 100 terabytes. He also said he believes we have a "right to remember" and quoted Michael Lesk who has said that he is worried we will lose the 20th Century. (The 19th is small, and out of copyright, the 21st is digital so we can wait out the 170 years of copyright protection, but the 20th is both under copyright and analog.)

Some important societal questions he asked, for digital libraries:
• Should libraries take over running digital projects, after the researchers have finished and want to move on to their next research project (example: Cite Seer, which is a science citation index, doing things like making footnotes linkable in scientific papers and allowing reverse lookups to see where all the cites are that link to a particular paper, and was developed through NEC, and then UPenn continued it), and it needs to be maintained?

• Storage, for now isn't a problem but bandwidth may be the thing that holds us back from progressing on the internet. How do we manage to get more bandwidth and good transfer methods for people working with large files?

Policy issues the archive faces:
• Copyright regime that prevents them from saving some materials, or makes it very difficult. Example, with software, they might have to reverse engineer old code, just to save it (on 5.5" floppies, no less) and yet, this is prohibited under the DMCA. He is waiting to hear about an exemption request (speech) made to the Library of Congress at their hearings this past spring. (These requests are made every three years for things like research...).
• Get better spectrum for wifi - 2.4ghz sucks. It's a piece of the radio spectrum; above FM, and is used for home handsets and garage door openers. All the rest of the spectrum is privately owned or military.
• Would like to see a "copyright free zone" where, maybe in Hawaii, or the Presidio, for example, people could experiment with copyrighted artifacts, to learn, make art, and to do social experiments.
• Would like to see libraries be able to assert "pre-emptive archiving" so that if a company is going down, the data isn't lost. Example, when Disney shut down Infoseek.
• Would like to see a "safe harbor" for research data, so that companies and institutions don't have to destroy information to keep it out of lawyers hands for fear of a lawsuit. Example, companies that destroy email or access logs, that might be used for research, but are also subject to subpoena.
• IP address and access logs retention vs. privacy. In order to protect privacy, he would like to see logs purged after 30 days.

I find this last point frustrating. I know he is right, and yet, it also seems like some researcher, playing around with those logs, might discover a way to make the bandwidth or the relaying of information more efficient, or we might in future understand more about people in a sociological way. And yet, because the data is used now for destructive purposes, we have no choice but to destroy it to maintain people's privacy.

Posted by Mary Hodder at 07:08 AM | Permalink | Comments (1)
September 20, 2003
Berkman Center/G2 on Digital Media in Cyberspace: The Legislation and Business Effects

This event held Thursday on digital media issues is a result of their collaboration on piracy and copyright and "Five Scenarios for Digital Media in a Post-Napster World." There have been several posts on this topic, from Derek, Matt and John Palfrey, who all attended, as well as Theo Emery/AP, Business Week, The Boston Globe and Martin LaMonica/cNet.

The conference presented five scenarios for moving forward. While reading the descriptions, I had the sense that although they spoke of five interested parties, creators, publishers, technology companies, ISPs, and the public, the proposal was written to favor the publishers, tech companies, and ISPs. Part of that is the language used. The proposal refers to the public as consumers, which I think minimizes the role of the public in these discussions. The public isn't just the people who will purchase the products of the creative industry (regularly referred to as "content," another word I have issues with). Theoretically, copyright serves the public. This idea is contained in both the Constitution and the Copyright Act. Copyright is a tool to increase creative productivity, because more creation is in the public's interest. I also think it's important to remember that the line between the public and the creators is a thin one. While they have different interests, people move fluidly between the two categories, which implies to me that the distinction isn't as great as it might appear.

...The five models are no change, property rights, tech defense, public utilities, and compulsory licenses, which were regularly referred to as "alternative compensation." I'm not sure why the other name was used. Perhaps alternative compensation sounds less scary than compulsory licensing.

Cary Sherman, President of the RIAA, and Fritz Attaway, VP of Government Relations and General Council for the MPAA didn't show, as they apparently feared travel issues because of the hurricane. This brings up a minor point. The Business Week/cNet piece has this:

In an interview with CNET News.com, RIAA President Cary Sherman said that the suits were intended to raise the awareness of the legal dangers in sharing music online and to change the prevailing culture of file swappers.

In the context of the article, describing the various discussions at the Berkman event, quoting others and then having this paragraph in the middle, it sounded to me like Sherman was there. Only from Derek's and Matt's posts was it explicit that he did not participate. I'm sure LaMonica meant to convey that Sherman wasn't there and the interview was separate from the conference, but if you didn't know he wasn't there, the article leads to the conclusion that he participated and did a special interview to the side with LaMonica.

Posted by Mary Hodder at 06:02 PM | Permalink | Comments (0)
September 19, 2003
File-Sharing 411, this Tuesday!

Boalt.org just sent this notice out:

Join us for File-Sharing 411 this coming Tuesday! Please forward this
message to people, groups, or departments who might find it of
interest.

... ... ... . .

Boalt.org, the Creative Law Society, and the present:

FILE-SHARING 411
A day of information and discussion about P2P, the record industry's lawsuits, and the future of digital music

Tuesday, September 23, 2003 at UC-Berkeley

Featuring Fred von Lohmann, Senior Intellectual Property Attorney, the Electronic Frontier Foundation

12:30 - 1:30 pm
File-Sharing 411
166 Barrows Hall
With nearly 300 lawsuits filed by the RIAA and one UC-Berkeley student already served, what does the current controversy over music file-sharing mean to Internet users and the campus community? Join us for a talk by EFF's Fred von Lohmann, Q&A, and pizza.

4:45 - 5:45 pm
File-Sharing: Legal Issues and Alternatives
115 Boalt Hall
The future of digital music distribution is hotly contested, with file-sharing technology putting new pressures on copyright law. Here Mr. von Lohmann, counsel to StreamCast Networks in the MGM v. Grokster case currently on appeal, will discuss the P2P court battles, the debate over alternative legal models, and policy concerns.

* Boalt.org is the student group at Boalt Hall School of Law devoted to promoting the public interest in law and technology.
* The Creative Law Society aims to integrate innovative thinking into legal education at Boalt and develop lawyers who serve creative interests.
* The Electronic Frontier Foundation is a digital rights law firm and advocacy group leading the charge to inform the public about digital music issues and explore legal alternatives for music distribution.

Posted by Mary Hodder at 04:09 PM | Permalink | Comments (0)
September 18, 2003
Senate Hearings Yesterday on DRM and Digital TV Equipment

Ed Felten has posted his testimony (pdf) and has some thoughts about the process of informing senators about technology in a committee hearing:

If you haven't been to such a hearing, you might be surprised at some of what happens. For one thing, unlike the hearings you see on TV, some of the Senators are absent, and some come and go during the hearing. (A Senator is on multiple committees, and various hearings are going on simultaneously, along with other business.)

You would probably be disappointed as well at the quality of the debate. It's not that debate doesn't occur; and it's not that the issues at hand aren't important. But much time is wasted on posturing that is irrelevant to the nominal topic of the hearing and seems designed only to show that one side is purer of heart than the other. An example was the repeated references to porn on P2P networks. This had no connection to the hearing's topic, and nobody even bothered to connect it to the topic. And none of the witnesses had any connection with P2P technology.

And he was seated next to Jack Valenti, "eternal head of the MPAA." Read the whole thing; it's a terrific window into the process that few people get to see.

Posted by Mary Hodder at 07:08 AM | Permalink | Comments (0)
September 17, 2003
And in Other News, The Senate Gets Crunchy Over the FCC

With their politics, that is. They voted to stop the new FCC rules from taking effect....from Stephen Labaton/NYTimes.

Speaking of Mr. Powell, Senator Byron L. Dorgan, the North Dakota Democrat and chief sponsor of the resolution, said: "I think he has made a horrible mistake. His leadership at the commission has led the commission to cave in to the special interests as quickly and as thoroughly as I've ever seen."

Mr. Dorgan and a large group of other senators, ranging from Tom Daschle of South Dakota, the minority leader, to Trent Lott of Mississippi, the former Republican leader, vowed to continue to take steps to repeal the media rules by attaching amendments to other measures headed for floor action.

Even the NYTimes, as a company, has lobbied to stop the new rules.

Keeping multi-content distribution channels flowing, the Senate is responding to the people, who don't want the aggregation of media markets to go beyond the current 35%, to 45%, which the new rules allow. Although, cynically, I suppose, I think 35% doesn't exactly lead to a big flow of different voices, but it's better than 45%.

Course, Bill Safire says the House bill will fail.

And speaking of mergers, Time Warner is planning to drop AOL from it's name (David A. Vise/WDCPost). Oh well.

Posted by Mary Hodder at 07:15 AM | Permalink | Comments (0)
September 16, 2003
Verizon Appeal Will be Heard Today

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....

Posted by Mary Hodder at 07:38 AM | Permalink | Comments (1)
September 14, 2003
Copying, Cutting and Pasting, and Synthesizing

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.

Posted by Mary Hodder at 09:22 AM | Permalink | Comments (0)
In a Cut and Paste World, Copying Means Different Things Than in the Past

The NYTimes has four articles today on filesharing, music and the state of the internet:

John Leland on Beyond File-Sharing, a Nation of Copiers.

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..."

This sort of reminds me of when Orrin Hatch's office was using unlicensed software on their website. It's a cut and paste world, for sure.

/. on the Leland article.

Adam Liptak with The Music Industry Reveals Its Carrots and Sticks:

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.

Steve Lohr on Whatever Will Be Will Be Free on the Internet:

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.

Posted by Mary Hodder at 08:51 AM | Permalink | Comments (0)
September 12, 2003
Lisa Rein on Subpoenas

Rein has this Commentary: What's Real and Make-Believe with the RIAA Subpoenas? She tells why sending subpoenas before a lawsuit starts departs from the norm, invades people's privacy by allowing personal information to get out, outside the context of judicial review, without the person being investigated having any chance to oppose the subpoena asking for personal information. This is a real problem and recently a litigant lost a case because they abused this subpoena power of the DMCA. But every person whose private information is inappropriately or abusively subpoenaed doesn't have the resources to sue. It's not a fair burden to place on people. The DMCA really needs to be corrected so that subpoenas come after a lawsuit is in place, and a judge can review the reasonableness of a subpoena. Just read it!

Check out her excellent video blog, too. I don't think anybody does what she does, and it's invaluable!

Posted by Mary Hodder at 07:08 AM | Permalink | Comments (1)
September 11, 2003
Sue KaZaa, Not the Customers?

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.

From Frank, a pointer to this Michelle Delio/Wired piece, Rude Awakening for File Sharers:

"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.

Update 9/11/03 1pm: Lawrence Solum at Legal Theory Blog has more to say on this topic, including the posting of Lichtman's response to this discussion (he's put this in the comments, too).

Posted by Mary Hodder at 07:26 AM | Permalink | Comments (1)
September 10, 2003
And In Other News... BizWeek Explains Why the FCC Needs a New Chief

Thane Peterson/Business Week explains how Michael Powell's ill-advised efforts to help Big Media united left and right alike. After such a fiasco, resignation is the honorable option for the following reasons:

· Powell's no. 1 policy initiative has been repeatedly rebuked.
· He refused to make the 250-page public policy document about the rules change public.
· He only held one meeting about the rules change.
· He skewered the data he did make available.

In the meantime, Frank James/Chicago Tribune says in FCC Chief Warns Of Future Shock:

"I think free, over-the-air TV is dying," says FCC Chairman Michael Powell. "I don't care how much money they made this year, they're dying." Part of the reason, he says, is that cable networks have both subscriber and advertising revenue, unlike network television. Powell also cites cable's freedom from the federal indecency rules that broadcast stations must follow. "In 10 years, free TV is going to be gone -- absent any policy decisions trying to help," he claims. Opponents remain unconvinced. "Here we have the chairman of the FCC trying to somehow protect four of the six largest and most profitable media companies that dominate the news, information and entertainment market in America today," said Gene Kimmelman, of the Consumers Union. "His entire philosophy reeks of corporate welfare for the wealthiest, most profitable companies at the expense of competition." Powell also fears that the nation's public telephone network will start to fail because rather than building facilities, companies such as MCI and AT&T are piggybacking on the equipment of regional phone companies "like sucker fish on whales." However, he was unsuccessful in his bid to revise FCC policy regarding the telephone industry.

While I don't think Powell will actually resign, I do think it's interesting that a major business publication is advocating this. Powell has tried to change media concentration of companies that control the flow of content both through traditional media outlets as well as the Internet, and people are rejecting that change. His argument is often that the Internet will save us from media concentration, because it provides wide ranging choices from many traditional and non-traditional media. The part he forgets to mention is that those same companies that are so concentrated also control the pipes to the Internet, giving them tremendous power over our supposed savior, and they are the same companies that are trying through various legislative and tort methods to close some of that access. I hope that this is part of the reason people are rejecting the further concentration of companies, beyond the general fear that traditional media is too concentrated already.

OJR has this interview with Powell, who responds to the concentration of media question:

...the problem in a society is not concentration and scarcity but actually abundance, fragmentation and hyper competition. There's so much of it the audience is getting fragmented across so many different media that they're very hard to reach and hold onto.

But if the overwhelming majority of the voices are all coming from the same few media companies, fragmented yes, but still from the same kinds of sources, then how do you have variety of information. Maybe you have a million slightly different shelter or food porn channels, but will you have true variety of viewpoints, critical news, sources and opinions to counter the concentration of media companies? Just because the audience is fragmented doesn't mean that reflects a diverse media.

Regarding the death of over-the-air TV, I would urge you to reread the last bit of this transcript of a debate over the broadcast flag, held at the DRM conference last spring. Advocates for the broadcast flag, a DRM technology that can be embedded in digital TV transmission but will only work if the transmissions are controlled through cable or similar distribution systems (to keep this TV from P2P networks), want to end over-the-air TV because they can't use broadcast flag DRM with it. But as the end of the transcript shows, those who wish to end over-the-air TV are contemptuous of those who still get TV through that method, maybe because they are poor, not with-it, or uninformed about Sex-and-the-City? I suspect those that want to end air broadcast think that they can both control the content with the DRM, as well as force the last 20% of the populace (including Mozelle Thompson, FTC commissioner) to buy cable. And you know increasing the bottom line by up to 20% for the cable companies, who are part of those big concentrated media companies, would be fabulous for this or any year's profit statements, CEO/analyst conference calls, etc.

Broadcast flags and more media concentration would be big wins for these media companies. The losers would be the public, who would further lose choice of distribution mechanism, as well as voice and control, in their content.

Posted by Mary Hodder at 07:19 AM | Permalink | Comments (0)
September 04, 2003
Ernie Miller Looks at Chamberlain, the DMCA and More

On Lawmeme about the latest in the Chamberlain v. Skylink case (pdf): Judge Asserts Pseudo Distinction to Preserve DMCA. 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 anticircumvention provisions.

The problem for the judge was distinguishing the Reimerdes DMCA case from the present facts. In Reimerdes, the decision essentially outlawed all unauthorized devices which decrypted CSS. Under Reimerdes, consumers have no right to access a DVD they purchased unless they use a licensed player. With regard to GDOs, however, the court found a couple of major distinctions. For example, in Reimerdes, the court here claims, the creators of the DVD licensed the decryption software to the manufacturers of players. Thus there were authorized circumventions and non-authorized circumventions. First, the court has the facts wrong. The MPAA and its constituent studios have no authority to license CSS, that authority belongs to the DVDCCA. The licensing involved in CSS is quite complex, and needs to be dealt with more carefully with regard to the legal reasoning. Indeed, if the copyright holders were in fact the sole licensees of CSS, that would raise interesting antitrust concerns. Luckily for the studios, they do not license CSS. Second, if a use is licensed, it is not circumvention. Circumvention implies that the use is unauthorized. Thus, the distinction fails. However, even if the distinction were valid, the problem for Chamberlain becomes that they did not license the technology to another company. If Chamberlain had licensed the technology to one other company, then the argument could be made that there are "authorized" and "unauthorized" circumventions. How the DMCA can be interpreted in this way, I don't understand.

Read the rest of his assessment of the case and the DMCA. It's well done.

Greplaw also interviewed him yesterday: Ernest Miller on DRM, Privacy and Hemingway and it was slashdotted. Check out Game Jockeys too; it's Ernie's latest venture. Great interview, too!

(Related: Ed Felten looks at Chamberlain, as does Derek Slater.)

Posted by Mary Hodder at 06:38 AM | Permalink | Comments (0)
September 03, 2003
Accomplishments and Two Regrets: Tom Kalil

Tom Kalil, Special Assistant to the Chancellor for Science and Technology, gave a talk today in Technology and Policy where he discussed information technology policy he was apart of during the Clinton and Gore era. He reviewed the accomplishments of their administration, where he served as Special Assistant to the President for Economic Policy, including things like encouraging R&D, making NetDay, addressing Digital Divide issues, maximizing technology policy in the national interest, protecting children's Internet interests and preserving privacy.

Regarding NetDay, he told a story which he said has not been widely reported. Apparently, in 1995 Kalil ran into John Gage of Sun and they discussed the idea of NetDay, after which Gage sent Kalil a mock webpage promoting a day that was yet to be organized, with not-yet-enlisted sponsors such as Apple, Sun, etc. Kalil showed it to Gore, who misunderstood its purpose, and took it to Clinton and said, hey, we're in California next week, and this is going on and you should announce it there. Done! So Kalil called Gage and in one week, they pulled together support from the companies on the mock webpage, got 10,000+ volunteers and held the first event in March of 1996.

He also talked about how technology policy is different than other kinds of policy, where the challenge comes with the rapid pace of change, the few people (though growing) in government who have a background in the relevant issues and with how this area of policy can be broad and ill defined, and affect many different areas.

As for the regrets, in answer to an audience question, he said "...if I had it to do all over again, I'd take back the Sonny Bono Copyright Term Extension Act." This is because he feels that intellectual property policy is tilted too far towards the copyright industry now, and in light of Public Choice Theory, where there are concentrated benefits (for say, Disney) and diffuse costs (for say, the public domain and the public), the public loses.

The other regret was over encryption policy, where the FBI/NSA believed that even though encryption technologies were available over the web, verses say being included in a Windows OS, that having restrictive policies in place were better. He said the NSA believes that everyday you can delay those technologies from being standard in systems is a good day. So the administration would have people laughing at their encryption policy but NSA types happy with it.

Interesting talk by the guy whose current job is to think strategically about organizing technology and science developed at UC. The class is full of CS, Mech Eng, law, SIMS, Biz, Public Policy and Journalism grad students who can look forward to an outstanding line up of technology and policy speakers.

Links here to papers by Kalil on Leveraging Cyberspace, The Case for Putting Internet Applications on the Policy Agenda and A Broader Vision for Government Research.

Posted by Mary Hodder at 11:01 PM | Permalink | Comments (1)
New FCC Media Ownership Rules Get an Emergency Stay

... pending judicial review. David Caruso/AP report that the rules that would allow a single company to own newspapers and broadcast outlets in the same city will have to wait. The House voted in July to overturn the rules, and the Senate is supposed to take this up next week.

The rules were challenged in court by the Prometheus Radio Project, a Philadelphia-based coalition of media access groups that campaigns for greater radio access and helps groups seeking to establish low-power radio stations.

"Given the magnitude of this matter and the public's interest in reaching the proper resolution, a stay is warranted pending thorough and efficient judicial review," a three-judge panel of the appeals court wrote in its brief opinion. The judges did not comment on the merits of the complaint.

One way or another, the concentration of distribution channels of media and IP have to be looked at by the public and their representatives, because the media business on it's own will just keep merging. Another day, another merger/acquisition.

Posted by Mary Hodder at 05:58 PM | Permalink | Comments (0)
September 02, 2003
James Tells A Good One About Abusive Subpoenas

Grimmelmaniacs will delight in his latest: Abusive E-Mail Subpoenas Are Actionable Under Federal Law. There's legal hardball, and then there's legal lunacy, and Alvin Farey-Jones just got an expensive lesson in the difference. In the course of a lawsuit against a company named ICA, he sent a subpoena to ICA's ISP, asking for all of ICA's email. The ISP complied. (ruling here, in pdf) The Ninth Circuit has just ruled that Farey-Jones's actions could constitute a violation of both the Computer Fraud and Abuse Act, which prohibitions "unauthorized access" to computer systems, and the Stored Communications Act, which does the same for electronic communications.

So asking for documents you are not entitled to get, via a subpoena generated without judicial review, can get you a $9,000 judgment and an earful from the judge. It was no defense that the ISP subpoenaed fulfilled the request even though they didn't know it was not a lawful request.

Check out the write up yourself.... Also, Security Focus has the story.

Posted by Mary Hodder at 02:02 PM | Permalink | Comments (1)
EU Delays Vote on Directive to Patent Software

Matthew Broersma/CNET says in Protests delay software patents vote:

The European Parliament has delayed voting on a controversial software-patents directive, after protests and criticism by computer scientists and economists.

Software patents have been likened to allowing a monopoly on the ideas behind stories, and opponents of the proposed Directive on the Patentability of Computer-Implemented Inventions claim it would effectively allow unlimited software patents. In the United States, large companies acquire arsenals of patents that they use to protect themselves from upstart competition.

Currently, software is protected under copyright law in the EU.

Peter Williams/Computing suggests that "...suspicion exists that the European Parliament is simply buying time in the face of fierce lobbying against the measure." The opposition, includes the companies mentioned here before, as well as:

EuroLinux has collected nearly 200,000 signatures for a petition against the directive.

In addition, 12 leading European economists sent an open letter (pdf) to the European Parliament urging it to reject the proposals.

The letter warned of the appearance of "extensive portfolios of software patents" which would have "serious detrimental effects on European innovation, growth and competitiveness".

Posted by Mary Hodder at 07:55 AM | Permalink | Comments (0)
August 29, 2003
Software Companies Shut Down Sites In Protest of Patent Law

Tutos, Knopper and WineHQ are among 2500 software websites that shut down August 27th, and remain that way as of this writing, protesting the pending European Legislation on patents. They did this to make the point that patents can stop innovation. In fact, these sites will have to forcibly shut down if the proposed law (to override the current patent law) is adopted in the EU. (See slashdot for more discussion.)

Why all this fury about software patents?

Unlike copyright, patents can block independent creations. Software patents can render software copyright useless. One copyrighted work can be covered by hundreds of patents of which the author doesn't even know but for whose infringement he and his users can be sued. Some of these patents may be impossible to work around, because they are broad or because they are part of communication standards.

Evidence from economic studies shows that software patents have lead to a decrease in R&D spending.

Thanks to Frank Field for the pointer.

Posted by Mary Hodder at 08:02 AM | Permalink | Comments (0)
August 25, 2003
DVD Copy Control Assoc v. Bunner Decision is Out

Here:

Today we resolve an apparent conflict between California's trade secret law(Civ. Code, § 3426 et seq.)1 and the free speech clauses of the United States and California Constitutions. In this case, a Web site operator posted trade secrets owned by another on his Internet Web site despite knowing or having reason to know that the secrets were acquired by improper means. The trial court found that the operator misappropriated these trade secrets in violation of section 3426.1 and issued a preliminary injunction pursuant to section 3426.2, subdivision (a), prohibiting the operator from disclosing these secrets. Accepting as true the trial court's findings, we now consider whether this preliminary injunction violates the First Amendment of the United States Constitution and article I, section 2, subdivision (a) of the California Constitution. We conclude it does not.

Bunner just reposted code that was already out on the internet, seemingly no longer a trade secret, because the code was everywhere. The CA SupCT said the lower court must consider whether the it violates the First Amendment rights of the reposter to require the code be removed due to its status as a trade secret. So the case goes back to the lower court.

Posted by Mary Hodder at 01:52 PM | Permalink | Comments (0)
Customer as Enemy?

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...
Posted by Mary Hodder at 08:16 AM | Permalink | Comments (4)
Patenting Everything Soy, Because You Can

Seth Shulman/MIT Tech Review writes in Full of (Soy) Beans (sub req) about Monsanto's patent on *any* genetically engineered soybean, included those they did not invent, or that do not use their patented gene injection process (they call it the "gene gun"). For years, Monsanto lobbied against the granting of a similarly broad patent to Agracetus for all genetically engineered cotton, whether or not another process was used. But after acquiring Agracetus, Monsanto now supports these overly-broad "monopolies on whole areas of research" because instead of stifling their business, it is their business.

The kinds of excesses we've been seeing lately need not be foregone conclusions. The trick is for those at the high-tech frontier to help our legislators be farsighted in thinking about the public's stake in intellectual property, building a system that equitably rewards new developments while at the same time providing a healthy environment for innovation. The good news is that many groups have begun to meet this challenge; among them, Creative Commons, the Public Library of Science, and Washington, DC-based Public Knowledge (I'm on their advisory board) are trying to map out a role for the public, just as the vibrant open-source-software community is doing much to stem the tide of proprietary control over software code.

Once we get beyond inane debates about whether intellectual property is "good or bad," the task of setting reasonable limits on proprietary rights is not as hard as it may sound. But there's a clear first step: quit handing out absurdly broad patents that allow corporate bullies to grab intellectual-property monopolies on our collective future.

See More below for the whole article.

MORE...
Posted by Mary Hodder at 08:04 AM | Permalink | Comments (0)
August 05, 2003
Porn Used in File Sharing Arguments

Jon Healey/LATimes writes that Both Sides Add Porn to Debate Over File Sharing (htm):

The music and movie companies warn that file-sharing sites are rife with graphic pornography that insinuates itself into users' computers. Civil libertarians and Internet service providers argue that music companies' anti-piracy tactics open the door for pornographers and others in the seamy online underbelly to invade Internet users' privacy.

Internet service providers and civil liberties groups have argued that a record industry strategy -- using subpoenas to force ISPs to identify customers accused of file-sharing piracy -- could enable pornographers, stalkers and other shady characters to obtain the names and addresses of Internet users.

Last week, one adult-entertainment company may have given the RIAA's opponents ammunition in their fight against the subpoenas. San Francisco-based IO Group Inc., which sells gay male adult videos under the name Titan Media, sent Pacific Bell Internet Services a pair of subpoenas seeking the names, addresses, phone numbers and e-mail addresses of at least 59 customers accused of infringing its copyrights on file-sharing networks.

When Pac Bell objected to the requests, Titan withdrew the subpoenas. Nevertheless, Pac Bell sued Titan in federal court July 30, asking for an order declaring that such subpoenas were improper.

Porn and file sharing have been discussed before, for example in Wired where the contention was that file sharing was good for porn sellers, in one way or another, where they were using file sharing to gain exposure and customers. Apparently, Titan has decided that file sharing was not helping their business and acted accordingly. However, Judges may be able to evaluate more critically the subpoena process (with subpoena-bots) if they are thinking about its use with porn verses content the RIAA wants to protect. SBC's action against Titan may shift the file sharing/subpoena debate, if SBC is successful in forcing a change in the subpoena process allowed under the DMCA.

Posted by Mary Hodder at 08:35 AM | Permalink | Comments (3)
RIAA Subpoenas...

Ed Felten has an excellent post on RIAA subpoenas, which Seth Schoen has figured out are script-generated by subpoena-bots.

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.

Posted by Mary Hodder at 08:04 AM | Permalink | Comments (0)
June 18, 2003
For Solving the Problem of Theft of Copyrighted Works, Orrin Hatch Suggests...

"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.

Donna blogs the Internet Law 2003 conference and links to some of these issues as well as P2P and technical self-help discussions at the conference. The Register weighs in too.

Update 061803: Senator Hatch can be emailed here: senator_hatch@hatch.senate.gov

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!

Posted by Mary Hodder at 08:01 AM | Permalink | Comments (0)
June 16, 2003
Dastar and Trademark

Dastar won their case against Twentieth Century Fox Film Corp two weeks ago, and this is important for a number of reasons:

1. the court ruled that once a work passes into the public domain, and the work is reused or repackaged under another's name (in this case a producer), the original copyright holder cannot use trademark law to extend copyright.

Scalia said that if creative producers were required under the trademark law to attribute the origin of any uncopyrighted materials they used, it would be difficult. "We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries," he wrote. (Salon)

2. the court reaffirmed the distinction between copyright law, which protects the originality of expression, and trademark law, which protects the public from confusion amongst brands, etc.

"Justice Antonin Scalia said that the trademark law, which is intended to protect consumers from confusion, does not allow creators to claim plagiarism when their uncopyrighted works and inventions are used." (Salon)

3. the court stressed that the public domain is essential for creativity. Fox used public domain footage to make their video, and in turn, when Fox's video fell into the public domain because they failed to renew copyright (their work was part of a category of works that still have to renew verses newer works that are automatically renewed), Dastar then used the video to make its own video, albeit not very different, but also not marketed as being different.

"The consumer who buys a branded product does not automatically assume that the brand-name company is the same entity that came up with the idea for the product -- and typically does not care whether it is," Scalia wrote in the opinion. (Salon)

In particular, this case makes doubtful the claim that IP lawyers sometimes tell their clients, which is not to worry so much about copyright law, because if it fails to protect or the work goes into the public domain, trademark law will protect them. Dastar v. Fox clearly shows this kind of reasoning isn't going to work in the future, and that trademark law cannot be used to support copyright reasoning.

Another take on these issues, Lessig quotes Duke Law Professor James Boyle: So we now know that while the word "origin" in an IP statute must be carefully defined in order to prevent rights-creep that would undermine the careful limitations struck in a statutory scheme, the words "promote," "progress," "limited" and even "author" can be defined any way Congress wanted to even if that upsets the careful balance struck in a constitutional clause, because they are only words in the Constitution, and thus much less fundamental.

Posted by Mary Hodder at 11:25 PM | Permalink | Comments (0)
June 11, 2003
DRM Conference Video Available

Lisa Rein has posted her video of Ed Felten's and Larry Lessig's talks at the Berkeley DRM Conference (2/28-3/1/03). Ed's talk is on how black boxes interfere with effective public policy and Larry's is about the Commons. Hopefully Lisa will add more video of the conference. Transcripts are also up on the conference website.

Posted by Mary Hodder at 01:37 PM | Permalink | Comments (0)
Pam Samuelson, Larry Lessig on The Aurora Forum Tonight 8pm

On KQED (Bay Area, 88.5 fm) tonight, 8pm:

The Aurora Forum from Stanford University: "Public Life in a Wired World," a program moderated by linguist Geoffrey Nunberg with Laurence Lessig, Center for Internet and Society at Stanford Law School, and Pamela Samuelson, MacArthur Fellow and founder of the Samuelson Law, Technology and Public Policy Clinic at UC Berkeley.

Or listen to the audio archive if you live elsewhere.

Posted by Mary Hodder at 09:11 AM | Permalink | Comments (0)
June 10, 2003
Lampooning the FCC and Clear Channel

JD Lasica on Clear Channel acquiring the FCC.... It's hilarious. (I'm assuming you already know about last Monday's vote outcome.) But he also points to the Macomb Daily story on the FCC (which bIPlog also reported):

Big Media Got FCC Rule Change Old-Fashioned Way. For a government agency that ensures Americans have an array of media voices from which to choose, the Federal Communications Commission sure has spent a lot of time listening to a small circle of pals, says columnist Chad Selweski.

Media giants spent $2.8 million wining and dining the FCC over the past eight years, paying for travel and luxury accommodations, and even chauffeurs.

Maybe it's cynical, but the rules changes approved last week don't seem that different from the previous set when you consider how poor US distribution channels for independent thought and expression already were. Lessig's thought that the "Internet as Savior" is a dying concept is right, especially when you consider Barry Dillers' thoughts (from D as summarized by Denise Howell) about it:

Audience Questions
Audience member, to Diller: You've been outspoken about media concentration. [More.] What's the impact going to be if control gets tighter?
Diller: You're referring to the FCC's June 2 rulemaking, and loosening restrictions on cross-ownership. The issue is not about consolidation, it's this: there are 5 entities that control 90% of what you see and here. What we need is sensible, wise regulation that will make it so you can still hear independent voices. It's not about size, but when you have size you have to have careful oversight and regulation or you get in trouble. If these entities control the broadband types as well, they'll sit on the tollbridge. The size issue can't be met by just tossing everything out.

In other words, the distribution channel is the key. Unfortunately, this view of the Internet as Savior seems more prevalent outside the blogosphere, amongst the general public and in the big media, which still uses this metaphor a lot even though the situations they describe are often much more complicated.

Posted by Mary Hodder at 10:23 AM | Permalink | Comments (0)
May 28, 2003
DMCA Exemption Hearings

Transcripts for all of the exemption hearings held this spring are now available....

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.

Posted by Mary Hodder at 08:43 AM | Permalink | Comments (1)
May 27, 2003
More on the FCC June 2 Meeting

Frank Field points to a couple of articles: Big Macs And Big Media: The Decision To Supersize, the text of a speech by FCC Commissioner Jonathan S. Adelstein before the Media Institute on the upcoming FCC vote:

I often hear from industry sources, "we're just giving people what they want. After all, that's our business. And as we get bigger, we just have more resources and ability to deliver a better quality product."

...You might call it the "McDonaldization" of the American media. McDonald's spends a lot trying to give people what they want. They only put products out after expensive field testing. Every product is analyzed to satisfy the greatest number of people, even if the local community may have its own unique tastes. Don't get me wrong, I like McDonald's, and eat there sometimes. But I don't eat there every day. And even if I did, I know it wouldn't be very healthy.

The same goes for the media. People also need a balanced media diet -- a diverse menu, if you will. But it's a lot harder to set up a broadcast station than a new restaurant. ...Neither cable nor the Internet has changed the huge market power granted by federal license to use scarce broadcast spectrum, particularly when that license comes with the requirement to be carried on cable. If these scarce licenses weren't valuable, their price wouldn't continue to skyrocket as they have in recent years.

Also, Frank Rich has an interesting piece from Sunday's Times (or htm) comparing the Matrix to our current media world: ...The power of the five companies that foster this sequential amnesia is increasing, not declining. In a vote set for June 2, the Federal Communications Commission is expected to relax some of the few ownership restrictions meant to rein them in. Companies like Viacom (which already owns CBS and Paramount) and Rupert Murdoch's News Corporation (which owns Fox and is on its way to controlling the satellite giant DirecTV) are likely to go on shopping sprees for more TV outlets. But who knows or cares? Though liberal and conservative organizations alike, from Common Cause to the National Rifle Association, are protesting this further consolidation of media power, most of the country is oblivious to it. That's partly because the companies that program America's matrix have shut out all but bare-bones coverage of the imminent F.C.C. action, much as the ruling machines in "The Matrix" do not feed their captive humans any truths that might set them free.

...But neither Mr. Diller nor anyone else is likely to stop this consolidation of cultural power unless the public knows or cares enough to protest. That hardly seems to be in the cards. We reward mediocre movies with record grosses. We reward tabloid news epics with high ratings. We reward dissembling politicians with high poll ratings. We expect our journalistic media to fictionalize the truth. As others have noted, the most dispiriting aspect of the Jayson Blair scandal may be that even the subjects of his stories usually didn't bother to complain about the lies The New York Times published about them; they just assumed it was standard practice. One way or the other, we all inhabit the Matrix now.

But yesterday's Times has another perspective on media consolidation (or htm), where some speculate that in the short term, relaxing the rules will not lead to more consolidation. However, some media owners in the article do admit that in some markets, they would immediately go shopping.

Posted by Mary Hodder at 09:57 AM | Permalink | Comments (1)
May 22, 2003
Why You Should Care About Media Concentration and the FCC:

Because the FCC intends to lift the restrictions on media concentration at their June 2 meeting. So instead of 4 or 5 megamedia outlets, we can have 3, or 2 or eek! 1 (check out this media map, or this one from the Nation, or this one from Media Channel). Breadth of media outlets is a critical check and balance on our democratic system, one that determines other voices, formats and viewpoints for our freedom of expression. Tipping what concentrated media balance we have today in favor of less competition, for getting information news and entertainment, will be bad all the way around. Check out this short video from the Center for Digital Democracy.

There has been a lengthy conversation going around the past couple of weeks or so about the FCC hearings scheduled for June 2, 2003 (watch the hearing via webcast at 9:30am EST, as the request for delaying the hearing was denied.) This hearing is the biennial review of rules governing media concentration. Every category from radio to newspaper to broadcast to cross-ownership rules is up for change. (Look here for the FCC hearing video from May 15.)

Among the topics discussed recently: the FCC's desire to break the Clear Channel hold over radio (htm) (see this bIPlog post on Clear Channel and the public emergency they weren't "in" to broadcast), the idea that Michael Powell believes that the Internet can adequately balance increased media concentration despite the restrictions ISPs and other access providers want to place on what you can attach to the Internet (see Larry Lessig's response to this kind of argument -- where he did not say the Internet is Dying, but instead that the Internet as Savior is a dying concept), and today's Salon piece on the The Big Blackout: "And perhaps unsurprisingly, the two television news operations most reluctant to cover the FCC debate -- CBS and Fox -- are owned by the two media conglomerates with the most to gain from a lenient FCC ruling: Viacom and the News Corp."

Tom Barger documents the change in concentration over the past six years: "I have heretofore been loath to subscribe to a conspiracy theory of the Military/Entertainment Complex. Rather, I have written on the herd mentality of journalists, and their fear of losing jobs or that coveted seat on Air force One; a relentless "dumbing down" of American culture and the obsession with celebrities, non-scripted reality programming, car wrecks, adultery, child abductions, and murders-all at the expense of critical examination of public policy. I have changed my mind."

"Commissioner Adelstein and Copps have informed us that the fix is in. On a split decision (3 Republicans to 2 Democrats), in June, all regulations on media ownership will be thrown out.... Adelstein's comment is perhaps more prescient, "The toothpaste is out of the tube.'"

Then there is the Nation's FCC: Public Be Damned: "...an examination of roughly half the 18,000 public statements filed electronically with the FCC show that 97 percent of them oppose permitting more media concentration. Even media moguls Barry Diller and Ted Turner have raised objections, with Turner complaining, 'There's really five companies that control 90 percent of what we read, see and hear. It's not healthy.'"

William Safire also opposes the proposed media consolidation (or htm): "We've already seen what happened when the F.C.C. allowed the monopolization of local radio: today three companies own half the stations in America, delivering a homogenized product that neglects local news coverage and dictates music sales. ... Ah, but aren't viewers and readers now blessed with a whole new world of hot competition through cable and the Internet? That's the shucks-we're-no-monopolists line that Rupert Murdoch will take today in testimony before the pussycats of John McCain's Senate Commerce Committee.

"The answer is no. Many artists, consumers, musicians and journalists know that such protestations of cable and Internet competition by the huge dominators of content and communication are malarkey. The overwhelming amount of news and entertainment comes via broadcast and print. Putting those outlets in fewer and bigger hands profits the few at the cost of the many."

Check out how the Regulators travel on the Regulated's Nickel as reported by the Center for Public Integrity: 2,500 trips costing $2.8 million over 8 years, paid for mostly by broadcast and telecommunication companies, separate from tax payer funded travel. Also, the same report mentions the FCC's heavy reliance on industry data.

Take 5 Minutes To Do Something About It:
The Future of Music Coalition suggests writing a letter (or email the letter: mpowell@fcc.gov; or call: 1-888-CALL-FCC (1-888-225-5322)!).

Moveon.org also has an easy way to participate.

Or Mediareform.net.

Considering how many ways giga-organizations can shape our tastes (or htm) and control our access to media, we have to keep what few protections we have in place.

Update (5/23/03): Salon has an article: Last Stop Before the Media Monopoly (Thanks Frank!)

Posted by Mary Hodder at 08:31 AM | Permalink | Comments (1)
May 19, 2003
Disability and the DMCA

The Library of Congress DMCA exemption hearings over the past few weeks included an exemption request for encrypted literary works not currently available on eBooks to persons with disabilities. Paul Schroeder, head of government affairs at the American Foundation for the Blind (who is blind) and Jonathan Band, American Association of Law Libraries, ALA, ARL, MLA, and the SLA were at the hearings to testify on their request.

PC World reports that copyright may have met it's match, as far as the way the DMCA restricts the 10 million blind people in the US from accessing between 60 and 90% of eBooks. Many of those are recent best sellers, but many are also works that have been in the public domain for hundreds of years, and yet their electronic versions are encrypted and therefore not available to software reading programs.

"'Easy access to e-books would be 'like water in the desert' for the blind community, says Paul Schroeder. 'We want the opportunity to do what you take for granted.'"

"'Ultimately, publishers decide whether to lock e-books', says Shafath Syed, product manager for electronic publishing at Adobe Systems. Adobe Acrobat and Microsoft Reader are the two most popular programs with the text-to-speech feature. 'We provide the technology but we don't control how it's used,' Syed says. Some publishers 'think if they turn on the read aloud feature that somehow that turns it into an audiobook. It's kind of a stretch.'"

Posted by Mary Hodder at 08:20 PM | Permalink | Comments (0)
May 15, 2003
DHS Used to Track Down Texas Legislators

Texas is getting to be as interesting as Florida and Modesto.

Balkinization talks about the Texas legislators that flew the coop to prevent a vote on redistricting. However, one aspect of the story not mentioned is how the Speaker of the House there, Tom Craddick of Austin (who also left the state 30 years ago to prevent a vote, btw), in his quest to find them, had underlings asking the Department of Homeland Security to track them down (Star-Telegram). They did this by finding former Speaker Pete Laney's plane through the DHS's Interdiction and Coordination center.

The civil liberties issues should be clear. Using terrorism detection methods for purposes other than detecting terrorism is not right, but for gaining political advantage, it smacks of Watergate.

Posted by Mary Hodder at 08:55 AM | Permalink | Comments (2)
May 08, 2003
School Days

Every time I think I will have a break to spend time blogging, an additional assignment or group requirement pops up, and I can't do the blogging. So I send you to Matt, Donna, Derek, Ed, Frank, Denise, JD, Dan, and those LawMeme guys, because they all do it so well, contributing in such different ways, and with such distinct voices.

Can't wait to get back to it. Just a few more days left of this difficult semester.
Thanks!

Posted by Mary Hodder at 06:37 AM | Permalink | Comments (0)
April 28, 2003
Apple Throws Down the Gauntlet

Apple has created an iTunes store with 200,000 songs for downloading. Using the site includes 30 free previews and cd cover art which quotes Steve Jobs as saying, "AND it's not stealing -- it's good karma." So 5% of the market is covered, but what about the rest? I wonder if it will put a dent in Kazaa users sharing 1 billion files. But something viable for the PC needs to be offered, too, so this might be the Pepsi challenge for the RIAA....

Other IP thoughts: Matt Morse pointing out that Saturday was World Intellectual Property Day. They even have a cartoon explaining their ideas about IP (pdf) which he cannot quite believe. Among other things, they point out that animals cannot make intellectual property. Check it out.

Meanwhile Harry Shearer has been talking about overall music industry strategy: Sue Your Customers! (htm). He suggests instead that the industry target older customers for sales because they have more money than time, are less likely to pirate music and more likely to purchase....

Posted by Mary Hodder at 08:04 AM | Permalink | Comments (7)
April 25, 2003
An Unexpected Victory for File-swapping Tools

File-swapping services Streamcast Networks , parent of Morpheus, and Grokster were handed an unexpected victory when Federal Judge Stephen Wilson dismissed much of the case brought against them by the music industry and movie studios.

In an unprecedented decision that reverses many of the previous victories for the record labels and Hollywood studios the court in Los Angeles found that the two companies cannot be held liable for the way the users of their softwares decide to employ the technology.

Wilson, in the opinion released Friday, wrote: "Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights."

John Borland on News.com writes: "The judge's surprise ruling marked the first validation of an argument that file-swapping supporters have been making since Napster's first controversial arrival. Peer-to-peer file-trading is a technology that can be used for activities well beyond copyright infringement, and the technology should not be blocked altogether to stop solely its illegal uses, these backers have said."

But the recording industry and the movie studios are not happy with the decision. A disappointed MPAA spokeswoman said "We feel strongly that those who encourage, facilitate and profit from piracy should be held accountable for actions."

It is well clear that they will appeal to the 9th Circuit Court of Appeals. Will the case make it to the Supreme Court?

Posted by Valentina Pasquali at 04:31 PM | Permalink | Comments (0)
April 23, 2003
Wheat and Chaff: Pam Samuelson Talks About Making Sense of P2P Piracy

Pam Samuelson is interviewed in the (May) MIT Technology Review about the Berman bill (which he admitted in February may not be reintroduced in the 108th Congress), "self-help" and the planting of "chaff" or phony mp3s into free P2P networks, and copyright.

"... A real unfortunate thing, and the Berman Bill isn't going to solve this, is that by being so aggressive against the peer-to-peer file-sharing technologies and bringing so many lawsuits and trying to shut the stuff down, the industry hasn't won the hearts and minds of the individual users of these networks, and they haven't won the hearts and minds of the technology community that wants to use peer-to-peer technologies."

On Self-Help for Copyright Holders:
"My sense is that this bill would not just immunize this kind of interference with downloading; it also would immunize more aggressive acts, including those that would otherwise violate the Computer Fraud and Abuse Act [CFAA] and the Digital Millennium Copyright Act's anticircumvention provisions. The CFAA has quite a lot of open-ended provisions. For example, if a rights holder accessed a user's computer and disabled use of files on that computer, that would violate CFAA. As the recording industry was contemplating how to fight back against peer-to-peer file sharing using technology, they correctly reasoned that they might, in fact, be subject to liability under the broad provisions of the CFAA or other federal or state laws that forbid, for example, trespassing on somebody else's computer system. "

Overall:
"If the goal is compensation to artists, then it may be time, especially in view of how widespread file sharing is, to start thinking seriously about some sort of licensing scheme so that noncommercial file sharing, for example, could be made profitable for copyright owners. But it would be necessary to impose some sort of tax. This would get copyright holders some money and would stop the punitive war that has been going on, which is going to be really tough for the industry to win. "

"I don't think that there's one silver bullet that solves the whole problem. But it's important to find some solution that is the least socially disruptive -- one that also then gets a wide array of wonderful creative works into the hands of lots of different people. Because that's what ultimately the copyright system is supposed to achieve."

Posted by Mary Hodder at 07:49 AM | Permalink | Comments (0)
April 19, 2003
Comp Lic II

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.

Posted by Mary Hodder at 09:35 AM | Permalink | Comments (0)
April 15, 2003
ISP Flat Fee for File Sharing Proposal

Fred Von Lohmann of EFF has a column in the Daily Princetonian about compulsory licensing. The idea is your ISP could charge a flat monthly fee so that both record companies, as well as artists, would be paid directly. Fees would be divided based on samplings of traffic and sharing similar to Nielsen ratings.

"The reality is that file-sharing is almost certainly going to remain a fact of campus life. The debate should be about getting artists and copyright owners fairly compensated, not about how many students should be expelled or how to install surveillance equipment on campus networks."

Posted by Mary Hodder at 01:40 AM | Permalink | Comments (0)
April 14, 2003
More on No Rights Reserved: the Whatever License

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.

Posted by Mary Hodder at 11:49 PM | Permalink | Comments (0)
April 13, 2003
Corrected: DMCA Exemption Hearings

Following up on this previous bIPlog post about the DMCA and N2H2, J.T. Stanton attended the April 11th hearings on the DMCA exemptions under Sect. 1201, held at the Library of Congress. Seth Finkelstein with Jonathan Band (representing library associations) supported the exemptions, while David Burt of N2H2 opposed.

Notably: Finkelstein made the distinction that "...filtering is when you block something you don't want to see. Censorship is when someone blocks something they don't want you to see." This set the stage for a hearing where Burt admitted he didn't know much about copyright law, and so he couldn't address the copyright issues, but he did suggest that the database could be checked one URL at a time, and this was enough to know what was blocked and what wasn't, verses making the entire database available to researchers. However, it was pointed out that it's hard to check for something if you don't know what's there.

Next up were proponents Thomas Leavens of Full Audio Corporation and Seth Greenstein of the Digital Media Association verses Steve Englund, the RIAA representative who opposed an exemption for webcasters to be able to read CD's on computers in order to webcast out the music. Apparently, the LOC doesn't generally allow specific exemptions like this, but the webcasters are paying 8.8% royalties to the RIAA so the LOC is at least considering it.

Updated 5/5/03, 10:00 am: This posting has been corrected because the original stated that David Burt in his testimony admitted he didn't know much and couldn't talk in detail about the N2H2 filtering technology, when he actually was referring to his knowledge of copyright law (see transcript).

Update 5/1/03: Transcripts for the hearing have become available here.

Updated 4/15/03: Name of author of blog notes corrrected.

MORE...
Posted by Mary Hodder at 10:28 PM | Permalink | Comments (0)
April 07, 2003
Alan Greenspan on IP

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?"

Posted by Mary Hodder at 08:46 AM | Permalink | Comments (0)
NY Times Archive Available Again?

Frank Field says the NY Times has pulled back from its position last week of redirecting old links to a page that charges fees. Our links should work again. Thanks Frank!

Posted by Mary Hodder at 07:45 AM | Permalink | Comments (0)
April 05, 2003
RFID and DeScramblers

Yesterday at the Computers, Freedom and Privacy conference, they talked about talked about RFID tags (discussed here before) and solutions to consumer tracking of goods, once the goods leave the store at Plenary Session #12 on Auto ID: Tracking Everywhere: with Katherine Albrecht (CASPIAN), Mark Roberti, Richard M. Smith and J.D. Abolins (moderator). One solution put forth by Roberti was to get a $200 scrambler for your house, so that everything you own, which in future might contain a tag not turned off (or killed) at the store, or that you were told by the store/seller was turned off, but actually wasn't, would be rendered unable to transmit. However, what happens when you, wearing tagged clothes, tagged personal effects like sunglasses, keys, wallet, cell phone, drive your car with tagged Michelin tires, etc., to a store. Everything is then not scrambled, the chips are turned on and being scanned from the parking lot and all points around the store, and they are linking past purchases including dates and costs, to your current purchases, to where you go in the store, to what entertainment you buy, and to what you drive, causing them to market items to you in the store based on this information, and even then selling this information later. What happens if you don't have $200 for the home descrambler? Does this mean people with money who are informed can protect their privacy, at least at home, but the rest can't?

One more question, would a scrambler device constitute circumvention of the RFID tag system, and would it then be subject to DMCA anti-circumvention claims, if you scrambled RF signals at home? (This is a crazy question, yes, but in light of printers and garage door openers and the DMCA, what's next?)

Update 03/07/03: Benetton has announced they aren't using RFID tags in their clothing. Instead, they are just studying it.

Posted by Mary Hodder at 08:05 AM | Permalink | Comments (0)
April 03, 2003
Super State-Level DMCAs Continued

The Massachusetts Committee on Criminal Justice held hearings yesterday on House Bill No. 2743 (pdf), "legislation to establish a crime of illegal internet and broadband access and establishing penalties therefor". Derek Slater has notes. John Palfrey of the Berkman Center at Harvard testified at the hearing about how there are already plenty of laws criminalizing theft, but this new bill will cause many problems with all kinds of technologies. Matthew Morse also attended and testified (more info from him here) about the harms this bill would cause. Amy Isabelle of the MPAA also testified, saying this bill was about theft, not copyright but agreed that it might need revising to fix problems. Derek was there before Matt and they missed each other, so check both sets of notes for information about what happened at the hearing. All of these notes and presentations are well worth reading. These state level DMCA's are far more draconian than the DMCA, and very little attention is being give to the bills, or was given to the seven (yes, seven!) laws already enacted.

Check out Ed Felten's latest on the Super (Mini) DMCAs. He reviews the language of the bills and what a mess this will cause for the Internet and many of the technologies we use to communicate as well as research into encryption and security.

Update 04/03/03: Derek Slater has an update on the revised version of the bill from the MPAA, and has a quick analysis.

Update 04/04/03: Corrected Author Matthew Morse's name.

Posted by Mary Hodder at 07:20 AM | Permalink | Comments (0)
Digital TV and P2P

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.)"

Posted by Mary Hodder at 06:55 AM | Permalink | Comments (0)
April 02, 2003
Piracy, Copyright Laws and the Economy

Some countries, like the United States, have a very large IT sector while others, like China and Russia do not. Nothing new about this. Now, however, the Business Software Association, an antipiracy organization with members including Microsoft, Adobe Systems, and Cisco Systems, offers a new explanation for this.

As a part of the larger effort to drum up support from lawmakers and law enforcement over antipiracy legislations, the BSA recently commissioned a study (pdf) that will show that nations with low piracy rates had large IT sectors, whereas countries with high piracy rates, such as China, had the smallest IT sectors. As News.Com reports, the conclusion for the BSA is that cracking down on piracy would help the growth of the IT sectors, create new jobs and thus bolster weak economies.

However there seems to be a much simpler explanation to the data collected by the study. Maybe there is a possibility that China and Russia have lesser developed IT sectors just because they have lesser developed economies overall and that piracy does not have that much to do with it.

Posted by Valentina Pasquali at 02:02 PM | Permalink | Comments (0)
March 31, 2003
Fear and Trust in the Networked Society

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."

Posted by Mary Hodder at 08:07 AM | Permalink | Comments (0)
Fear and Trust in the Networked Society

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."

Posted by Mary Hodder at 08:07 AM | Permalink | Comments (0)
March 29, 2003
Super-Mini-DMCAs, Blogs and Media

Ed Felten has been covering the Super-DMCA issue in FTT including several posts as well as linking to various state bills as passed or proposed, and even posting the Massachusetts bill.

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).

Posted by Mary Hodder at 05:00 PM | Permalink | Comments (0)
Notice: COPYRIGHT CLEARANCE INITIATIVE WORKING GROUP MEETING

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.

MORE...
Posted by Mary Hodder at 03:04 PM | Permalink | Comments (0)
March 26, 2003
Wifi, Spectrum and Pringle Can Antennas

Cory Doctrow (of EFF, of 93,000 free downloads, of boingboing) talked tonight at the JSchool about the spectrum commons, with wiki notes.

Notable ideas:
-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.

Posted by Mary Hodder at 10:43 PM | Permalink | Comments (2)
March 21, 2003
SonicBlue Declares Bankruptcy: Another Point for the Incumbents

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.

Posted by Mary Hodder at 04:54 PM | Permalink | Comments (0)
March 19, 2003
Hilary Rosen's Dream

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.

Update: 2/19/03 Wired reports on Texas Rep. John Carter, with RIAA support, who want to jail downloaders (college students!) of illegal files.

Posted by Mary Hodder at 08:38 AM | Permalink | Comments (1)
March 16, 2003
Terrorists, Pirates, and Criminals

Microsoft and the Motion Pictures Association of America never relax.

In the latest news, reported by CNET News.com, Jack Valenti, president and CEO of the film industry group, and Richard LaMagna, a manager of Microsoft's antipiracy investigations, testified before a House Judiciary subcommitee, lamenting that their intellectual property is being stolen by organized-crime gangs around the globe, especially in countries like Russia or Malaysia where copyright laws are weaker.

"Large, violent, highly organized criminal groups are getting rich from the theft of America's copyrighted products," Valenti said.

As if this weren't enough, John Malcolm, the official who oversees the computer crime division at the Justice Department, offered a vague and unsubstantiated warning to the panel about the connections between copyright piracy and terrorism.

Does this mean everyone found in possession of an illegal DVD is bound for Guantanamo?

Posted by Valentina Pasquali at 11:04 AM | Permalink | Comments (0)
March 15, 2003
Welcome to the New Travel

A bag on a flight from Seattle to San Diego was found by its owner to have been inspected by someone commenting on the contents of his bag, which included some "No Iraq War" signs. The baggage inspector included the official preprinted inspection notice in the bag, but also wrote a note: "Don't appreciate your anti-American attitude!"

Robert O'Harrow, Jr. writes about the Aviation ID System and the Senate Commerce Committee's vote to support TSA disclosure of the systems' details and privacy implications. The CAPPS II system will rely heavily on commercial data systems about every American adult. In other words, your Choicepoint report, with information about every trackable purchase ($3 coffee at Starbucks? $2 bagel at Noahs? etc. from your debit card) as well as other kinds of activities you participate in, like your neighborhood watch association membership, or your work as a Boy Scout troop leader, all your speeding tickets, will be used to make decisions about screening you, or letting you fly at all. Even though laws, like the Privacy Act of 1974 discourage the government from doing this themselves, the Act doesn't discourage buying the info from a company, even if it's just the aggregated score. So the question is, how much of each person's report will be used, or will they just look at an aggregated score, and how much control will people have to correct mistakes or even know that any particular information is being used. In 2001, Glenn Simpson, in the Wall Street Journal (courtesy of IP/Farber) (or the WSJ -- sub req) reported the FBI using Choicepoint, as well as 35 other Federal agencies, to make decisions about citizens.

"This is really the beginning of a debate of how our country can fight [terrorism] ferociously, without gutting civil liberties," said Sen. Ron Wyden (D-Ore.), whose amendment "would require the TSA to report how it will mitigate errors and enable appeals from passengers who believe they were incorrectly identified as potential threats."

Posted by Mary Hodder at 08:55 AM | Permalink | Comments (0)
March 12, 2003
DRM Conference Continued....

James Grimmelmann has the best write up yet on the DRM Conf. A must read....

MORE...
Posted by Mary Hodder at 07:44 AM | Permalink | Comments (0)
March 11, 2003
Santa Cruz Libraries Post Warning

...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.


Posted by Mary Hodder at 11:19 PM | Permalink | Comments (1)
DMCA hits Journalism

Unhappy targets of journalism, especially those in the technology industry, are using the DMCA to stop leaks from turning into published material. As you know, journalists often find themselves in the possession of information that others would very much like to stop them from publishing (Pentagon Papers, leaked memos, technology specs, the works). But the "power of the press" has ensured that whoever wishes to stop them simply can't - they don't control the printing press, the distribution networks, or the broadcast equipment. And the courts, for the most part, have backed publication over injunction. This all changes with the DMCA, as Microsoft proves in this case, which is not the first, and, most likely, will not be the last. Who needs an injunction against a publisher when you can just shut down its ISP? Microsoft claims copyrighted material was illegally posted on the site in question, but we should watch this space. Perhaps when journalists are threatened on their home turf, the rest of the world will realize what's really at stake here.

Posted by John Battelle at 07:33 AM | Permalink | Comments (0)
March 10, 2003
Tech's Love-Hate Relationship with the DMCA

Declan McCullagh talks about the DMCA and tech companies who support, or oppose, changing section 1201 to loosen the anti-circumvention restrictions. The interesting part: he speculates that "Intel sponsored a Digital Rights Summit that, in conjunction with a second conference at the University of California at Berkeley, may prove to be a turning point in this debate." That would really be cool.

Posted by Mary Hodder at 08:05 AM | Permalink | Comments (0)
March 05, 2003
Broadcast Flag continued... Will There Be Digital Signals for Those Without Cable?

Tomorrow morning at 7am PST (there will be a live audio feed during the event), The House Subcommittee on Courts, the Internet, and Intellectual Property will hold an oversight hearing on "Copyright Piracy Prevention and the Broadcast Flag", per Donna at Copyfight. This was a subject in hot debate at the DRM conference Saturday. One suggestion for implementing the Broadcast Flag was to discontinue all over-the-air transmissions of TV signals so that Broadcasters and the MPAA would feel more comfortable sending digitial content, regardless of the fair use implications or the issues of information flow in a democracy.

Note the end of the panel discussion:
Emery Simon, MPAA…Do you know percent of the American public who gets their television that way? Less than 20%. (He was speaking of over-the-air broadcasting signals.)

Richard Epstein, U of Chicago Law Prof…Well then you are telling me something which I kind of guessed, because I have a cable and a dish at my house. I get anything I can get over the air, over those two things. So what we really have to do is to junk that technology, put everything through encryption, once you encrypt it then you can monitor it, and then you don't care about it, including the assignment problem, and then we can all go home, including the FCC.

Mozelle Thompson, FTC Commissioner... With all due respect, a lot of people like me are among those 20%.

It reminded me of redlining, where financial institutions refuse to serve poor areas, except this is sort of a proposed technological redlining of those who do not subscribe to cable, where they will no longer be able to receive over-the-air broadcasts. Some of these people don't have cable because they can't afford it, some because they don't watch much TV or want the expense, and some because they don't like cable monopolies, but they all still want over-the-air access, regardless of use and need, and this digital divide between cable users and non-cable users is not likely to go away soon.

Although, according to this National Broadcasting Association memo (pdf) from August, 2002, they, and the FCC, are committed to retaining over-the-air broadcast signals, and it's actually 81 million sets, or 1/3 the population, that receive free TV signals. "Relying solely on cable as we move into the digital television world runs contrary to the U.S. system of free, over-the-air broadcasting."

All this to prevent people from taking digital signals to make and distribute pirated copies downstream, which Ed Felten shows would be quite a task right now.
Derek Slater has some interesting thoughts as well about over-the-air transmission of content.

Posted by Mary Hodder at 08:37 PM | Permalink | Comments (0)
March 04, 2003
Antitrust vs. Copyright...or, Using the DMCA to Your Best Advantage

Static Control has filed an antitrust suit against Lexmark for $100 million in damages from a "rival it alleges engaged in monopolistic practices." This follows last Friday's injunction where, in Lexmark's case against Static Control invoking the DMCA, Static Control was ordered to stop manufacturing the disputed chip that allows their toner cartridge to work in Lexmark's printer.

Last Saturday at the DRM conference, Emery Simon, of the Business Software Alliance, said this about the case, and the DMCA law used by Lexmark to protect it's printers from interoperability with other toner cartridges: "about Lexmark, whether it is an unintended situation or an unanticipated one, I don't know. ...the DMCA is focused on ... piracy issues, and so it was based on relationships between companies, competitors and the marketplace. So it was certainly an unanticipated situation. Whether the DMCA should be used in that way or not, I personally think it should not, but whether it will or not, the courts will decide ... if the courts decide this thing erroneously, there will be a role for coming back and looking at this thing again."

Zoe Lofgren, who gave a speech at the DRM conference just before the panel discussion where Simon said those words, has introduced a bill into the current Congress that is apparently the same as HR 5562 from the last session, which "permits bypassing copy protection mechanisms if the purpose is to 'to make a noninfringing use.'" At the end of the BSA press release, they say they oppose the bill because, "Any weakening of the laws that promote continued innovation and needed protections for copyright owners will ultimately stifle industry growth and limit consumer choices."

Is it really promoting innovation when copyright owners like Lexmark protect themselves from competition by putting a chip in their printer to keep away toner cartridge manufacturing competition? The BSA admits that much of the proposed legislation to change provisions of the DMCA doesn't apply to software, but they are worried that any piracy, or anti-circumvention for fair use, (which may include Static Control's case) would be legal if the "intent" of the action were legal, and therefore they oppose the bill.

I guess we have to wait on the answer to the question about whether Lexmark, and Chamberlain (of the garage door opener case), are engaging in anti-competitive behavior. The BSA should figure out what they really think, and then work with Lofgren and others to fix the DMCA mess so that copyright owners are reasonably protected, and innovation and fair use are still on the table.

Posted by Mary Hodder at 09:57 AM | Permalink | Comments (0)
March 03, 2003
More DRM Conference Info

Audio of the conference is up, and video will follow shortly.

Amy Harmon's NY Times piece on the DRM and Spectrum Conferences held in the past few days summarizes some of the most important issues, focuing on copyright and innovation.

BusinessWeek/Cnet About the Lexmark injunction Friday, "This is a travesty," said Alex Alben, of Real Networks (whose question to Pam Samuelson is a couple posts back). "This is not what we intended when we created the DMCA."

bloggers:
Dan Gillmor
JD Lasica with the pithy thought: "In many ways it was the West Coast version of the I-Law conference at Harvard..."
Boingboing
Ed Felten
Aaron Schwartz
Donna Wentworth/copyfight
Derek Slater and here.
Legal Theory Blog
Mindjack
Manymedia
Epeus Epigone - Kevin Marks making the argument "that no-one seems to be making the 'DRM Destroys Value' argument."
Smartmobs
Bag and Baggage
Greplaw

Posted by Mary Hodder at 06:57 AM | Permalink | Comments (0)
March 02, 2003
The Broadcast Flag and DRM

The first panel discussion yesterday focused on DRM as a tool, with a lot of discussion around the Broadcast Flag (or see this definition) and what it means to DRM and broadcasting, movies, and the media business. Full transcript as best I could make out from the tape is here, with a few thoughts below and under the more button at the bottom.

Mozelle Thompson (FTC) is skeptical of content owners' and broadcasters' motivations because they have asked for contradictory protections from the FTC over the years.

Richard Epstein (U. Chicago Law School) is willing to give up "that little bit of consumer right" of fair use in order to protect broadcasters using the Broadcast Flag, if that's all that is lost. But he said repeatedly that there were still too many things undefined about the Broadcast Flag debate to really be able to advocate a position, but seemed to lean toward protecting content owners over everything else, on issues beyond fair use. Regarding HDTV and cable, he says: "So what we really have to do is to junk that technology (over the air broadcast), put everything through encryption, once you encrypt it then you can monitor it, and then you don't care about it, including the assignment problem, and then we can all go home, including the FCC."

Emery Simon (BSA) admitted that it's very expensive and difficult for consumer groups to get involved with standard setting bodies. The easiest thing for the public is to rely on Congress or the FCC, but for his "money, it's still better to try to do this through voluntary efforts, and include whoever wants to show up at these things and speak their minds."

Fritz Attaway (MPAA) said that he thought that while it is difficult for consumer groups to participate in standards body decision processes, consumers have the marketplace and can take or leave technologies, as they see fit.

Jon Healey (LA Times) talked about how difficult it is to describe these things to the public, when they don't care so much about the technical details and processes, but rather just want to know the ramifications of the options offered to solve these problems in broadcasting digital content.

Ed Black (CIAA) cautions consumer groups to get involved in the standards bodies or risk losing the fight to a few companies who might define a standard with a competitive disadvantage for other companies, where consumers then also lose out on the most competitive marketplace possible.

Update: see Ed Felten's post on this issue.


MORE...
Posted by Mary Hodder at 08:36 AM | Permalink | Comments (0)
March 01, 2003
DRM Conference, Day 3

The conference was extremely interesting and very well done. I will post notes as updates, as I go through them. Transcriptions will be up in about a week through the conference site, and some streaming or webcast info might be available soon, too.

The first panel this morning was amazing on DRM-related legal and policy initiatives in the U.S. Pam Samuelson moderated, with Fritz Attaway of the MPAA, Jerry Berman of the Center for Democracy and Technology, Ed Black of the Computer & Communications Industry Association, Richard Epstein from U. of Chicago Law School, Jon Healey of the LA Times, Emery Simon of the Business Software Alliance and Mozelle Thompson of the FTC. Will post notes shortly here.

One observation about the conference: it seems like the subtext around the DRM question in all the panels, discussions on breaks, and speakers presentations is that Microsoft is the 500 million dollar gorilla (this is what they recently were noted as spending on free DRM and this was never mentioned at all at the conference that I saw) strangely absent from the talk. MS has not been mentioned here much, other than in the couple of panels where MS people have participated or where an audience question has brought it up (and once, Ed Felten graciously agreed to act as MS spokesperson). It feels like people either don't want to mention them, because it might be just more of the same Microsoft-bashing, which is boring, or would further cement MS's control over this area of technology development, or people are nervous about making statements about them in public. But MS as subtext is everywhere, kind of like air. Prevalent, but unspoken. It almost feels like it's great that we are here, talking and debating these issues, but with MS defining standards and looking to control rights and access control standards, and having the market power to induce this, we are having a debate around the main issue which is that they exist and will control this.

Posted by Mary Hodder at 05:15 PM | Permalink | Comments (0)
February 28, 2003
DRM Conference, Day 1

Two tutorials, with Drew Dean, SRI; Barb Fox, Microsoft Corp.; Brian LaMacchia, Microsoft Corp, about DRM technology, and one with Pam Samuelson on the legal and policy landscape regarding DRM.

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....

MORE...
Posted by Mary Hodder at 05:54 AM | Permalink | Comments (0)
February 24, 2003
There Will Always Be a Jack Valenti

[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.

Update: Jack Valenti kicks off his "2003 Morality Tour" with the Duke speech (text here).

Posted by Mary Hodder at 11:51 PM | Permalink | Comments (0)
DMCA: Unintended Consequences?

"The DMCA started with the noblest of intentions, but it is becoming the bright shiny new toy of enterprises looking for a way to stifle competition and to control what they might consider unfavorable information," said Mike McGuire, a policy analyst with research firm GartnerG2. This, from the LA Times, gives a good overview of DMCA issues, along with a review of some of the cases where the DMCA has been used to shut down competitors, satirizers and anyone else that brushes up against an incumbent business with some sort of complimentry service or product.

Since we are rapidly approaching a time where every device, every printer cartridge, every information tool will contain a chip or sensor of some sort, either for inventory or interoperability control, this issue is bound to get far worse, as incumbents look for ways, in uncertain and very competative times, to keep customers and profit margins from competitors. The long term disadvantages for the public and new business technology innovation should be obvious.

Thanks to Lawmeme for additional info.

Posted by Mary Hodder at 07:12 AM | Permalink | Comments (0)
February 22, 2003
Rep. Berman May Not Revive Internet Piracy Bill

At the Digital Rights Summit a couple of days ago, Howard Berman said in an interview that he might not reintroduce a revised version of his Internet Piracy Bill. "Realistically, a bill like this isn't going to zip through Congress," he said. Apparently, Hollywood doesn't like the parts of the bill that would impose penalties for copyright holders who, through what they call "self-help" measures, go too far in fighting piracy. Presumably this means hacking too far into some file sharer's computer? And getting caught. You'd think the fear of bad publicity alone would make it unpalatable, but supposedly they don't want the liability either. "And if they're not for it," Berman asked, "where am I going?"

Posted by Mary Hodder at 08:53 AM | Permalink | Comments (0)
February 12, 2003
321 Studios Offers 10k Reward for Busting Movie Pirates

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!.

Posted by Mary Hodder at 11:31 PM | Permalink | Comments (2)
February 11, 2003
DMCA Redux? At Least A Look-See Is In Order...

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."

Posted by Mary Hodder at 05:18 PM | Permalink | Comments (0)
Why DRM Matters to Science, Technical and Medical Publishers

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."

Posted by Mary Hodder at 04:27 PM | Permalink | Comments (2)
February 08, 2003
"I Want My In-Box Back"

The NYTimes mag tomorrow is all about spam, with a big menacing spider image for illustration. ''Spam has become the organized crime of the Internet,'' said Barry Shein, president of the World, one of the original ISPs. ''Most people see it as a private mailbox problem. But more and more it's becoming a systems and engineering and networking problem.'' The FTC is interested in the deceptive practices of spammers, and opt-in/opt-out are discussed, but James Gleick's conclusion is that forged headers should be illegal, and all spam should carry a mandatory tag.

Declan McCullagh's Politechbot.com notes the latest in s.p.a.m. And according to Internetweek, s'p'a'm costs us $12bil / year and almost everybody wants it banned, but the s|p|a|m|m|e|r|s. Course, you could always donate your s+p+a+m to science.

Update: 2/12/02 From Wired, Spam Offers: Some Legit, Most Not where tests showed replying to s~p~a~m caused many, many more s^p^a^m.

And The Register on s=p=a=m=m=e=r=s ignoring the rules!

And Spamarrest is resorting to, oh my, spam.

Posted by Mary Hodder at 09:16 AM | Permalink | Comments (0)
February 01, 2003
3 Billion Downloads of Music a Month: That's a Lot of Music!

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.

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Posted by Mary Hodder at 09:59 AM | Permalink | Comments (0)
January 24, 2003
Opposition to Government Mandated DRM Formed

The Register, the NY Times, the BBC and CNet are reporting the formation of a new coalition, the Alliance for Digital Progress, which includes Apple Computer, Microsoft, Dell Computer, Cisco Systems, Hewlett-Packard and Intel, as well as some consumer groups and think tanks, in an effort to oppose Sen. Fritz Hollings' bill (S. 2048), which has the support of Disney and other movie studios, to set government standards for digital rights management. The ADP prefers market solutions to the DRM and piracy problem. The bill was introduced last term, but has not yet been reintroduced in the 108th Congress.

So the idea according to the ADP is that, as with the photocopier, the VCR and DVDs, Hollywood will benefit if it steps aside to allow the market to solve the DRM technology problem, so they can create a new and bigger market in P2P sharing of digital content than currently exists in the DVD market.

Posted by Mary Hodder at 09:40 AM | Permalink | Comments (1)
January 14, 2003
Latest DMCA Causalty: Garage Doors

Edward Felten on our favorite Law With Unintended Consequences: Now there's a suit claiming copyright infringment w/r/t Garage Door Openers.

Posted by John Battelle at 01:37 PM | Permalink | Comments (0)
December 30, 2002
Shattering Lindows?

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

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

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

Posted by Maggie Law at 01:09 PM | Permalink | Comments (0)
December 24, 2002
"What Do Intellectual Property Owners Want?"

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

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

Posted by Mary Hodder at 12:36 AM | Permalink | Comments (0)
December 20, 2002
Can the Jukebox Be Heavenly and Profitable?

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

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Posted by Maggie Law at 12:18 PM | Permalink | Comments (1)
December 10, 2002
Dow Jones Can Be Sued in Australia for Internet Publishing

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

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

News.com and Australian IT, as well as LawMeme comment on the story.

Posted by Mary Hodder at 06:34 AM | Permalink | Comments (0)
November 29, 2002
FCC Comments Deadline

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.

Posted by John Battelle at 11:21 AM | Permalink | Comments (0)
November 26, 2002
$14k for a Hard Drive Full of Entertainment? Can I Sell It on Ebay to Pay the Bill?

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.

Posted by Mary Hodder at 08:35 AM | Permalink | Comments (2)
Jurisdiction in DeCSS Cases Decided

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.

Posted by Mary Hodder at 07:41 AM | Permalink | Comments (0)
November 24, 2002
KaZaA in Court to Decide Jurisdiction

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.

Posted by Mary Hodder at 06:51 PM | Permalink | Comments (1)
A Celebration of Disney Orgies and Bloodbaths

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.

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Posted by Maggie Law at 02:54 PM | Permalink | Comments (1)
November 22, 2002
A DMCA Déjà Vu at Princeton?

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.

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Posted by Maggie Law at 10:55 PM | Permalink | Comments (0)
November 20, 2002
DMCA: Open for Comments

For a quick overview of current DMCA status, and a reminder that comments on its anti-circumvention clause are now being taken by the government, read Declan's piece today at CNET.

Posted by John Battelle at 09:00 AM | Permalink | Comments (1)
November 19, 2002
Cyber Rights Fading Fast (Last One Out, Turn Off the Lights)

The 8th U.S. Circuit Court of Appeals ruled Monday that police do not need to be present to collect evidence from an Internet service provider. This case was about a man using email to engage in sexual conduct with minors; the police faxed the warrant to Yahoo. Having the police present is one of the checks and balances of the 4th Amendment warrant process that has been in place since the 1700s.

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Posted by Mary Hodder at 07:30 AM | Permalink | Comments (1)
November 17, 2002
The Gift of Opportunity... or Clever Tax Evasion?

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.

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Posted by Maggie Law at 10:18 AM | Permalink | Comments (1)
Terrorism and Copyright Piracy The Same?

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.

Posted by Mary Hodder at 12:55 AM | Permalink | Comments (0)
November 16, 2002
Internet Radio Gets Royalty Reprieve

Congress gave some relief to small Internet radio stations on Friday, approving legislation to suspend music royalty payments for a month until the stations can work out the details of a proposed discounted rate with musicians and record companies. The Associated Press has a summary story on the passage of the bill, and Reuters has more on the reaction of the smaller stations. But for really in-depth coverage, go to Kurt Hanson's Radio and Internet Newsletter

Posted by Paul Grabowicz at 01:59 PM | Permalink | Comments (0)
Hunting Bounty for the Geekset

Not as much fun as Tia Carrere in a push up bra, or Star Wars Bounty Hunter but close. At least for the guys imagining themselves out hunting bounty. But it's real and anyone can do it. BountyQuest.com offers up bounties for hunting the winning information in a prior art documentation contest, to refute patent cases they and their clients believe are worth fighting. A $10,000 reward is offered for the first evidence that does so in the areas of biotech, computers and mechanical patents.

Apparently Federal Circuit judges are split on whether to expand or contract patent law. PanIP's suits, against little companies, for infringing on their E-Commerce patents for automating web sales, which may be a precursor to going after Amazon and eBay are a good example. The patents are for a computerized system of selecting goods and processing transactions, which sounds suspiciously like all eCommerce. Red Herring talks about far-reaching patents and the PTO process.

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Posted by Mary Hodder at 12:00 AM | Permalink | Comments (1)
November 13, 2002
Filtering Google

Jonathan Zittrain and Benjamin Edelman of the Berkman Center for Internet & Society at Harvard Law School are studying filtering, done voluntarily by Google and others. So far they have a list of 113 censored sites that don't show up on searches, mostly in Germany and France. There is a lot of the expected facist stuff, but also The Chinese Consultation Network, filtered from GR and FR versions of Google. Zittrain and Edleman are taking submissions.

CNET, the Crimson and the NY Times have all mentioned the study. Here is the Chilling Effects list of cease and desist letters to Google.

Posted by Mary Hodder at 10:01 PM | Permalink | Comments (2)
Comments?

The US Copyright Office is going to start taking comments on November 19th on the new exceptions to the anti-circumvention clause in the Digital Millennium Copyright Act. Here's the DMCA Comment Submission Form.

Posted by Mary Hodder at 09:29 PM | Permalink | Comments (0)
Eolas Suit with MS Might Kill IE

Mike Doyle of Eolas Technology Inc., which holds a patent on embedding plug-ins, applets, scriptlets, or ActiveX Controls into Web pages, is suing Microsoft, and says he won't settle. He wants MS to stop using the technology altogether. This comes from a Cringley column that quotes Doyle as saying that no one would make the investment in a serious web-OS with a browser as the interface if MS Internet Explorer (using plug-in support) is the competition. But he believes the whole market could open up if he is successful. If MS loses, it may kill their browser.

Here is some information on what must be proved by a patent holder to win a suit.

Posted by Mary Hodder at 07:40 AM | Permalink | Comments (3)
November 12, 2002
OK, how about "Victor's *Dirty* Little Secret"?

"Secret's generic, it's descriptive. Victoria should be able to have a secret. Victor should be able to have a secret. George, Bob, Judy, Mary...."

So reasoned Victor Moseley from the steps of the U.S. Supreme Court. Moseley is the owner of a mom & pop lingerie/sex shop in Elizabethtown, KY. NPR's legal affairs correspondent Nina Totenberg reports (doing her always-entertaining impersonations of playfully bantering justices) that the Court heard arguments today challenging the limits of the Federal Trademark Dilution Act of 1995.

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Posted by Maggie Law at 10:23 PM | Permalink | Comments (0)
November 08, 2002
Barbie Heads Ruled Transformation and Parody...

...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.

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Posted by Mary Hodder at 05:41 PM | Permalink | Comments (1)
October 21, 2002
Eldred transcribed

Eldred v. Ashcroft, the oral arguments at the Supreme Court, 10:03 - 11:01am 10/09/02.
And a list of the briefs filed in Eldred.

Posted by Mary Hodder at 09:09 PM | Permalink | Comments (0)
October 18, 2002
Citing DMCA, U.S. Throws the eBook at ElcomSoft

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.

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Posted by Maggie Law at 01:28 AM | Permalink | Comments (0)
October 15, 2002
The Rite of Spring Could Be Expensive

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. :)

Posted by Stephanie Hornung at 10:09 AM | Permalink | Comments (0)