EFF: DMCA Rulemaking Broken
DMCA Triennial Rulemaking: Failing Consumers Completely is EFF's posting on their report "documenting why we believe the process is so broken that we have decided not to propose any [consumer-oriented] exemptions this time."
I concur. I wholeheartedly agree with the sentiments.
The most relevant part of the report concerning public participation is the section:
B. Impenetrable Complexity, Impossible Burdens.
For example, any individual interested in participating meaningfully in the 2006 rulemaking procedure must begin by reading the 6-page 2005 Federal Register Notice, the 30-page 2003 Determination and Final Order, the Register's 200-page recommendation memorandum in the 2003 proceeding, and the 18 page Final Rule issued in 2000. Each of these documents is written by and for those familiar with many of the most complex and arcane provisions of the Copyright Act.
Moreover, the Copyright Office requires that those seeking DMCA exemptions:
[long list of requirements]
Simply put, this does not facilitate participation by members of the public. Meeting these onerous requirements generally requires the assistance of specialized copyright attorneys, technical experts, researchers, and industry analysts. Without expert assistance, individual digital consumers cannot reasonably gather the expertise and devote the time necessary to participate successfully in the DMCA rulemaking process.
Even with expert assistance, the burdens imposed by the Copyright Office on participants often prove nearly insurmountable. ...
I hereby attest: I went through those burdens, and EFF is not exaggerating or hyping. The description nearly insurmountable is accurate. The process is broken, and DMCA reform must come from other avenues.
Note: DMCA Rulemaking Exemptions Must Be Renewed Every Three Years
I was just talking to Jay Sulzberger (a Linux and Fair Use activist) about the upcoming DMCA Exemptions proceeding, where there's a rulemaking for special exemptions for the Digital Millennium Copyright Act's prohibition against (only) circumvention. He was interested in my thoughts regarding an idea of his, a broader, user-focused, security-based exemption, as illustrated by the issue of the infamous Sony "rootkit". I gave him some advice on drafting a proposal. The conversation then turned to what I planned to do - or not to do! - with the DMCA censorware exemption. I was surprised to learn that he did not realize that any DMCA rulemaking exemptions only last three years, and then have have to be re-argued all over again, from scratch. Per the Notice of inquiry:
There is a presumption that the Sec. 1201 prohibition will apply to any and all classes of works, including previously exempted classes, unless a new showing is made that an exemption is warranted. Final Reg. 2000, at 64558. Exemptions are reviewed de novo and prior exemptions will expire unless sufficient new evidence is presented in each rulemaking that the prohibition has or is likely to have an adverse effect on noninfringing uses. The facts and argument that supported an exemption during any given 3-year period may be insufficient within the context of the marketplace in a different 3-year period. Similarly, proposals that were not found to warrant an exemption in any particular rulemaking could find factual support in the context of another rulemaking.
This part of our conversation was disheartening to me, on many levels (n.b. he gave me his permission to write about it). Jay isn't a lawyer, but he's been an activist for many years, and in fact testified himself in the previous DMCA exemption proceedings. It was disheartening since my deep unhappiness is based on not wanting to go through that grinder all over again, with the prospect of an outcome even worse for me personally this time than last time. Abstractly, this strikes me as a thoroughly reasonable point of view (i.e., give all the stress and flaming I went through once, subjecting myself to it again, probably worse, is an unbearable burden). Now, when I explained to Jay about the expiration, and that I'd have to go through everything I went through before, plus whatever further attacks were heaped on me, he had a much better understanding of why I felt the way I did. But seeing how little this background was commonly understood, and so how likely I was to get even more negative reputation-points because people just didn't grasp the reasons - that was a very gloomy experience.
Cites & Insights December 2005 - "Analogies, Gatekeepers and Blogging"
I've described the following as the "pundit's dream" - I have actually said something which convinced someone!
Walt Crawford's latest issue his publication, Cites & Insights 5:14 December 2005, has this description in part (links added):
Following Up: Mea Culpa - While this section includes several "following up" notes, the "mea culpa" regards "Analogies, Gatekeepers and Blogging" - Seth Finkelstein and Jon Garfunkel have convinced me that I'm not qualified to deny the existence of "gatekeepers" within the biblioblogosphere. Read why.
And in the issue:
Seth Finkelstein (Infothought, sethf.com/infothought/blog/) posted "Cites & Insights November 2005" on October 14, pointing out cases in which yes/no decisions within net media keep people from being widely heard who should be widely heard--just as similar decisions keep voices out of traditional media. (I'm phrasing this badly; go read his post.) He emailed me questioning my A-list skepticism:
[T]he word "controlling" might be a little misleading, in that of course it's not absolute--but that shouldn't be used to deny an effect...Every group has its influential leaders, who can often (not always, but often) make an issue prominent or marginalize it. Why should library issues be an exception?
After another exchange, Seth did a terrible thing: He convinced me I was wrong. [example snipped] ...
I was denying the significance of the A-list as gatekeepers by pointing out that I'm not part of the library A-list but nonetheless pretty good at making my voice heard. To which Seth responded, "Of course not (`primarily from Walt at Random'). You're a well-known writer and columnist in the field... That's the source of your power. Similarly, there are blogs that are very highly ranked generally because of the author's `rock star' status, not particularly because of what he or she writes on the blog. Some people have influential and/or widely-read blogs because they are (local) celebrities, and some people are (local) celebrities because they have influential and/or widely-read blogs. Cause and effect varies."
There's more. But I'll just say: Thanks! It's impressive to see such a willingness to incorporate reactions into one's thinking (would that certain others follow suit ...)
Thanksgiving blog note
In terms of what I write about on my blog, there's things to be thankful for.
I haven't been sued, pauperized, or made unemployable.
I do have the distinction of being an EFF Pioneer Award winner, and achieving a DMCA victory
Occasionally some big-time cyberlawyers say nice things about the censorware work I did.
But it cost much ... 
. Happy Thanksgiving.
Peter Junger resumes "Samsara's Blog"
[Update - For people visiting this page in the wake of Peter Junger's death, see the memorial notice]
Law Professor Peter Junger has resumed writing a weblog ("a collection of recollections of the sort that almost demand being recorded in a blog"):
To people who don't know the name, Peter Junger was one of the earliest net legal freedom fighters. But he's also a tremendously witty writer. I've long had some of his classic posts mirrored on my site, such as "The inevitable problem of lawyers". So here's an echoed short post, to give the flavor of why these are such gems:
The Local Consequences of Global Warming
I turned on the local public television station for a moment in the middle of the night last night and learned that the polar bears are hungry and endangered. The weather is so warm this year that the arctic ice is a month late in forming and until the sea freezes the polar bears can't go out on the ice hunting for seals for their dinner.
This morning I awoke to the realization that we could, if not solve, at least ameliorate two of our environmental problems by feeding Republicans to the bears.
Googlebombing FeministFemaleSexualDysfunction
Finally, as I mentioned in an earlier post, all the top hits when Googling "feminist and FSD" or "feminist and sexual dysfunction" are from the anti-FSD contingent. This page of my blog is actually within the top 100, but fairly low on the page.
I don't normally ask this, but if a few more of you would be willing to link to this week's archive using those keywords... well, at least that way other sufferers searching for help can more easily get this point of view as well for a more balanced picture.
That is, a feminist and female sexual dysfunction (FSD) Googlebomb?
Google Print - Fair Use vs "Microsales"
The Google Print debate has gone another round. I think it's illuminating to approach it from a mirror-image of fair use:
It's about "microsales" (really, micro-commercial use)
What's new, in an evolutionary sense, is that Google has found a way to make large amounts of money off accumulated small sales. This has led to an argument I'll call the "willful ignorance of scaling differences".
The argument runs that if a single excerpt can be fair use in a vaguely commercial context (e.g. quoting a snippet in a review, even if it's a paid review), then an unlimited number of excerpts (scale in one direction) in a purely commercial context (scale in another direction) are theoretically identical.
This doesn't follow. The result is in fact, "undefined". Like the saying "The Constitution is not a suicide pact", it's arguable that fair use is not license for market-death by a thousand cuts.
The issue didn't arise before, because there wasn't a context where this sort of usage could be marketed in a large scale. But in retrospect, the problem arises very clearly from lowered transaction costs.
But it's not obvious that the authors and publishers are right either. Google's certainly providing a service where stifling it with rights clearances seems inadvisable. That's not going to benefit either authors or publishers - only lawyers!
Has anyone explored that some sort of mechanical license might be better than winner-take-all?
GooglePrint EgoSurfing
Google Print now has enough items to make for an interesting print egosurf. Some numbers for a few websites:
37 pages on "peacefire.org"
6 pages on "censorware.org"
1 pages on "censorware.net"
4 pages on "sethf.com"
"Catch 1201" - DMCA Exemption Proceedings Paper
This doesn't seem to be widely echoed, so I'll help out.
Catch 1201: A Legislative History and Content Analysis of the DMCA
Exemption Proceedings
Bill D Herman
Oscar Gandy
Abstract:
17 USC Section 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings. [...]We then conduct a content analysis of the first two proceedings, conducted in 2000 and 2003. Exemption proponents generally interpret the law's intent in terms of policy goals such as fair use, whereas opponents see jurisdictional, procedural, and definitional obstacles to the granting of exemptions. The Register of Copyrights' interpretation of the law closely resembles that of opponents and, on more than one key point, she refers proponents back to Congress. We conclude that the Register has constructed a venue that is hostile to the interests of noninfringing users; in light of congressional rhetoric to the contrary, this constructs a catch-22 for many who earnestly wish to engage in otherwise legal activities.
[Via ShoutingLoudly]
I'm mentioned:
"In the case of the circumvention to gain access to lists of websites blocked by content-filtering software, [Marybeth Peters, Register of Copyrights] even commends the exemption's proponent, Seth Finkelstein, as providing an example to teach future proponents how to meet the burden of proof: The case made by Mr. Finkelstein for this exemption is also instructive for the manner in which it met the requisite showing. [...]"
Questions to readers: 1) Feedster aggregator users 2) Google audience
Two "reader poll" questions:
1) Are there really 84 subscribers using "Feedster" as an aggregator?
2) Is there anyone out there still hanging around just for the Google posts?
The current readership statistics for Infothought are roughly:
Bloglines (.RDF feed): 189
Bloglines (.XML feed): 39
Rojo: 27
Newsgator: 13
Livejournal: 11
Direct daily page views: ~100
website RSS Feed: ~175
Total: ~ 554
This is of necessity somewhat imprecise, but there aren't a thousand readers under a rock somewhere. Better than the average diary-writer, but basically unimproved, and still miserable in terms of changing the world. So:
1) There's a "feedster" entry in the logs which reads "Feedster Crawler/1.0; Feedster, Inc. (84 subscribers)". But that doesn't seem right. All the other aggregator numbers change slowly (-1, +1, -1, +1, -1, +1, +1, etc.). However, the Feedster entry ramped up fast and then doesn't move at all. Something's wrong with it. Did I get put on a default list, then taken off? I'm curious, if anyone knows how the Feedster stats work.
2) I had some intention of doing a no-"personal", more Google-focused, site, and trying to make sure I didn't lose the "search" audience until I got it set up. But my current PAID programming consulting is happily rising, so drumming-up SEO business (or even a search startup ...) is seeming less cost-effective right now. So that's looking like it'll be pushed-off a bit at least. Anybody still around waiting for me to do that? I suspect any "search" readers I picked up from the Google Yahoo size investigation are either gone by now, or it takes a lot to drive them off :-).
I owe someone an article, and I should do a current explanatory post about being driven to personally quit the fight for the DMCA censorware exemption, and maybe a retrospective. But beyond that and any treading-water posts, life trumps blogging.
Cites & Insights Mid-Fall 2005 - "Life Trumps Blogging"
Walt Crawford has some wise words in his most recent publication of Cites & Insights 5:13, Mid-Fall 2005:
Life trumps blogging. At least it does for most sane, balanced people.
And further (excerpted):
Family trumps blogging. Health trumps blogging. Work trumps blogging (unless blogging is your life or work, ...).
I'm delighted to see that more and more people recognize that vacations trump blogging ...
As a tool, blogging isn't something "everyone" needs to do, and it isn't something that you need to keep doing even when it no longer meets your needs.
While he gives some examples from the library world, this connected to me with Siva Vaidhyanathan's recent statement:
I am way behind on a couple of major projects. My tenure file is under review by my department right now. And I have a bunch of other things going on in my life (all good).
I really can't blog for a while. It's too draining and distracting to do battle so publicly. It might actually be risky. ...
I usually can't help mouthing off on all this stuff. But it's not wise.
Points to ponder.
Websense Microsoft, and Marijuana
http://www.theregister.co.uk/2005/11/04/ms_websense_hash/
Microsoft's software download site was briefly categorised as a marijuana-related site and blocked by censorware outfit Websense on Monday. Websense blamed human error for the slip-up (or should that be splif-up), which it was able to quickly correct.
Note this was admitted by Websense (taking the news report as true, which seems justified given the screenshot).
[Hmm, a while back, Websense was in the news for "free sex". Now it's "drugs". When do we get "rock and roll"?]
This is an interesting incident, because it helps show that for all the mystification of censorware as "technology", it's basically someone sitting in a room making up a blacklist. A slip of the fingers, and Microsoft is marijuana.
SonyBMG EULA and "rootkit" : Truth-In-EULA opportunity?
Ed Felten comments on the infamous Sony "Rootkit" "copy-protection" software:
Meanwhile, lawprof Eric Goldman asks whether the SonyBMG EULA adequately disclosed what the company was doing to users' computers. If not, the company may be legally liable for trespass to chattels, or may even have violated the Computer Fraud and Abuse Act. Goldman concludes that the disclosure may be adequate as a legal matter, though he doesn't assert that it's a good business practice.
While the legal question is beyond my expertise, it's awfully hard to see how, from a common-sense viewpoint, SonyBMG could be said to have disclosed that they might be installing rootkit-like software. Surely the user's consent to installing "a small proprietary software program ... intended to protect the audio files embodied on the CD" does not give SonyBMG free rein to do absolutely anything they like to the user's computer. Whether, as a legal matter, Sony exceeded their user-granted authorization to modify the user's computer would ultimately be for a court to decide.
Goldman says, with some justification, that today's EULAs expose a "crisis" in contract law by attenuating, almost beyond recognition, the notion of consent to a contract. Part of the problem is the well-known fact that hardly anybody reads EULAs. But another part of the problem is that EULAs don't give even the most diligent users a clear idea of what they are consenting to.
I run into something like this issue all the time when discussing censorware. If a censorware program is described as "filtering pornography", people are highly likely to be in favor of it. If I bring up the fact that censorware requires the loss of all privacy, anonymity, or even third-party content services, sometimes I can get people to think a bit more deeply about the implications (if I'm not getting flack from certain other activists who give me tremendous grief for taking that approach ...). But, sadly, it's a struggle.
I suspect it's going to be very difficult to get any sort of Truth-In-EULA obligations, to require understandable disclosure, given the spotty record of attempts at requiring plain language legal contracts.
Still, it's a good-talking point. Anyone for a "Truth In EULA" legal proposal? That is, a disclosure cannot be legally deemed to have been made unless a "reasonable" person would have some sort of "material" understanding of the risk entailed in the "small proprietary software program"?
It may not pass, it likely won't pass. But it would be a great opportunity to publicly grill some of the most egregious offenders.
Copyright Office Now Accepting DMCA 1201 Anticircumvention Comments
[Not a news echo!]
http://www.copyright.gov/1201/comment_forms/index.html
"The Copyright Office is conducting a rulemaking proceeding mandated by the Digital Millennium Copyright Act, which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of measures that protect access."
"The deadline for electronic submissions is 5:00 P.M. E.S.T Thursday, Dec. 1. Commenters are strongly encouraged to submit comments well in advance of the deadline to allow sufficient time to correct any format defects and resubmit comments before the deadline."
[ See also: http://sethf.com/publications/dmca-guide.php ]