Infothought

Cites & Insights November, December 2006 - Wikipedia, Copyright, Blogging

Walt Crawford recently released issue 6:14 (December 2006) of his Cites & Insights, which made me worry about not being good at reciprocity since I hadn't noted issue 6:13 (November 2006) even though it mentioned me several times.

Things to read - a long discussion of "What About Wikipedia?". And to answer the question there, about why Wikipedia doesn't allow opting-out:

I must admit that, apart from politicians, Nobel Prize winners, and perhaps people with some high level of celebrity, I don't get this position at all. You can choose not to be listed in Who's Who in America. Why is it inappropriate for someone who's mildly notable but not a world-class celebrity or politician to ask to be left out of Wikipedia?

As I've said, I believe the answer is "that to allow anyone to decline to be a subject an article would be an admission that the supposed collective editing process is deeply flawed".

Long summary of Copyright Currents - Fair Use and Infringement, The RIAA and Copyright, DMCA Discussions, and more.

Blogging, and the corporatization thereof (links added):

Anybody can become an A-lister. There is no A-list. Any blog can reach a vast audience. You know the myths. Within the broad field of blogs, I no longer have any doubt that they are myths. The A-listers play by different rules and mostly draw sycophants as commenters; these days, though, many of the A-list blogs are really just new forms of old or corporate media in any case.

... Your chances of making those big bucks? Turns out that, once you take away the Hot Sites, there's not a lot left over (although the article never says that outright). And the blognates (blog magnates) are building lots of new blogs to soak up any excess revenue.

... But you have to be hot stuff to get impressions-based ad revenue, and I think The Great Unread and other articles discussed previously pretty much spell out the odds of becoming hot stuff if you're an honest-to-gosh blogger.

Cites & Insights Spring 2006 - "Blogs, Google and [Prawn]"

Cites & Insights 6:6, Spring 2006, Walt Crawford's publication, is out. I haven't written as much about these as I wish I could. But this issue is chock-full of material to motivate me (such as several nice mentions of things I've written). For example, regarding blogs (my links):

It's probably important to say at this point that Seth Finkelstein and Jon Garfunkel are, as far as I can tell, right about what they call "gatekeepers"--within any given field, a relatively small number of bloggers commands most of the attention and, to some extent, dominates the topics under discussion. For relatively small fields, that may not be an awful situation: It's not too difficult to break into the top hundred library related blogs (or even the top fifty). But, as Finkelstein notes, that's little solace if the fields you're interested in aren't narrow fields--if you're interested in politics or the like. There, things seem to be getting worse: The chances of a single amateur to be heard aren't zero, but they're no better than in traditional media.

Elsewhere, there's a section with the obscure title of "Discovering Books" (subtitle - "The OCA/GBS Saga Continues"). Hidden away in the middle of this section is a Google Book Search (that's the "GBS") discussion compilation, including an argument with some dude named Siva [Vaidhyanathan] (since apologized for, and clarified, for hopefully less acrimony). Perhaps idiosyncratically, I found much of the section oddly disheartening. As I read through it, I spotted (what I considered to be) many significant flaws in several quoted assertions. But there's no point, or even negative incentive, to my detailing that, because (almost) nobody would hear me, and many are far more famous commentators than me. The Google Book Search debate is full of "advocacy", which makes it very difficult to sort out *accuracy*.

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.

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?

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.

Google Print And Fair Use

Scrivener's Error has a series of posts, focusing on issues such as Google's digitization and Fair Use (via Derek Slater). Much substantive criticism:

Admittedly, this doesn't look a whole lot like the analysis [of thumbnail images]. That is primarily because, as I've tried to make clear, this case isn't [about thumbnail images]. It is not being heard in the Ninth Circuit, which (along with the Eleventh Circuit) has the least-stringent view of fair use; it is not based on materials merely gathered, but for which substantial and conscious copying must occur for any of the three "uses"; it is not based upon reuse of materials in exactly the same form, medium, and purpose/function as provided by the copyright holder; and does not concern a well-delineated final use and presentation.

It's good to get out of the echo chamber.

Google Print, Statutory Damages, And The Library Exception

Ed Felten ponders:

"... because if Google loses, it won't just have to reimburse the authors for the economic harm they have suffered. Instead, Google will have to pay statutory damages ... In light of the risk Google is facing, it's surprising that Google went ahead with the project."

Aha! Now it all falls into place!

In fact, Google WON'T necessarily have to pay ANY statutory damages. Because of an obscure part of the statutory damages provision:

The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was (my emphasis):

(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or ...

Google has the lawyer-power where, even if it loses on legal principle, it can likely persuade the judge to let it off the hook for ANY damages because of the "agent of a ...library" exception.

That explains a lot which has been going on. Quite a lot. Truly, follow the money, and much is revealed.

Google Print Is Not Copyright's Enemy-Of-My-Enemy-Is-My-Friend

Siva Vaidhyanathan makes excellent points about the Google Print Lawsuit:

The issue is the effect on the "potential" markets, not the established markets. Because a market exists (and a greater potential market lurks) for licensed digital images of published books, the library project is about that market (see Amazon and Google Print) rather than the market for the physical book. ...

Again, please don't misunderstand me. I am not cheering for the authors here. I am just worried that admiration for Google is clouding judgements. ...

The copyright issue at hand here is not really fair use. That's just trivia.

It is this: Will copyright remain a copy right or will it become a distribution right? Which is better? Which should it become? What are the gains and losses if we were to see such a shift? Would Time-Warner and Disney (both major book publishers) let that happen?

Google is using an "open" business model here: Use the content, or services built on the content, as a loss-leader to draw eyeballs and so sell advertising. This is a venerable, workable, business model. Thus, people then think that boosting Google's use of this business model is a blow against the copyright business model. Therefore, it's called "fair use", it seems to me often more on the basis of this policy advocacy, rather than any detailed legal analysis.

It's an appealing thought. But sadly, I have the sense that in this case we're just replacing one boss with another. This is not an altruistic act where Google is merely contributing to the Commons. Rather, it's strategic business positioning for them. There's nothing intrinsically wrong with that. It's a good move, leveraging their current strengths. However, there's no need to automatically imbue it with an enemy-of-my-enemy-is-my-friend aspect, which isn't necessarily there.

Google Print Lawsuit

The inevitable Google Print Lawsuit has been filed, by the Author's Guild.

The complaint doesn't appear to argue much beyond a simple claim that Google's actions are copyright infringement, the core is:

39. Google has made and reproduced for its own commercial use a copy of some of the literary works contained in the University of Michigan library, which contains the Works that are the subject of this action, and intends to copy most of the literary works in the collection of that library.

40. Google's conduct is in violation of the copyrights held by the Named Plaintiffs and other members of the Class.

As I wrote earlier in Google Print: Copyright vs. Innovation vs. commercial value, I think there are some inherent conflicts here:

That is, the technology company can't be right every time, almost by definition. Because copyright as a limited monopoly fundamentally restricts innovation in some ways. That's the trade-off.

I'm not in the business of writing legal briefs, and I don't have any particular passion for or against Google Print, so I'm not going to go deeply into the fair-use arguments (no point for me in that ...). Anyway, I suspect that it's just going to come down to a whether the relevant judges believe the project is useful or not, which is leading to a perception/PR battle.

Google Print: Copyright vs. Innovation vs. commercial value

The recent Google Print debate has been far-reaching, e.g. Siva Vaidhyanathan: Google Avoids Copyright Meltdown:

If copyright is to mean anything at all, then corporations may not copy entire works that they have never purchased without permission for commercial gain. I can't imagine what sort of argument -- short of copyright nihilism -- would justify such a radical change in copyright law.

When discussing the implications of the copyright system, I sometimes try to point out that there are intrinsic conflicts inherent in it, especially in terms of technological advances.

Let's step back for a moment. Why is Google doing this book-scanning project? It's not because it's just so cool (even if it is). While coolness may justify a small-scale promotional project, the scanning efforts are expensive. So Google, as a company, obviously sees some value in the effort. This is not wrong. But it's also a direct conflict with the granted monopoly know as copyright. Whenever there is value, particularly commercial value, there is conflict over who should be able to receive it.

It's not hard at all to see potential returns here. Besides the obvious selling of ads from searches, consider that it positions Google to be a potential partner in any e-books venture. It's not a guarantee. But if a company already has a scanned, indexed, "production" version of the book, that's a good selling point. From this perspective, Google's interest in working with libraries can be seen as a way to do an end-run around contracts with publishers, and Amazon's own evident efforts (talking about doing well by doing good!)

That's just an example. Look at it this way. Google is saying, "Let us make e-books of all library content, and keep them - for copyright reasons we'll only display search results". That's clearly very dubious under copyright. But ... it's obviously an innovation. However, it's a very commercially valuable innovation. Which brings us back to copyright. A problem with the polarized debate over copyright is that it's often framed in terms of morality of property rights, opposed by individual usage rights (which leads to screaming of "monopolists" vs "thief"). But if the Google Print scanning project is viewed as a balance of economic interests - between one company that wants to leverage its search expertise into the e-book area, and other companies which want to maintain their limited monopoly on the potential market, then assuming one believes copyright properly grants some exclusive rights - it's not obvious which is correct here.

That is, the technology company can't be right every time, almost by definition. Because copyright as a limited monopoly fundamentally restricts innovation in some ways. That's the trade-off.

Cites & Insights July/August 2005 - Guns 'n iPods

Walt Crawford's publication Cites & Insights 5:9, July/August 2005 was released a while back, and I kept putting off writing about it. It covers the Grokster case extensively, DVD-bowlderizers, conference commentary, etc. All worth reading.

I get mentioned a few times, which warms my heart. There's matters about which I'd want to clarify or expand my views - but on the other hand, it's not worth typing pages about it, especially during the middle of summer. There's one portion where I can add particular value. The Guns-vs-iPods issue has in fact been in the news, in terms of the various standards of liability for different types of products (remember Andrew Orlowski's joke: "It may soon be possible to carry around an AK-47 assault rifle and an iPod with you down the street - and be arrested for carrying the iPod." - we aren't quite there yet, but that definitely sums up one potential future).

Walt writes:

I believe a handgun company that advertises its products as "Perfect for taking out your old lady" and bases its business model on an increased rate of homicide should be liable, regardless of the Second Amendment. (That's a hypothetical case!)

Interestingly, that's not such a hypothetical case. For example, there's a discussion of "Merrill v. Navegar":

"The TEC-9/DC9 was designed to be fired from the shooter's hip; the barrel of the gun was threaded to accommodate silencers and flash suppressors; and Navegar advertised the assault weapon as having excellent resistance to fingerprints. Navegar's director of national sales and marketing testified that he welcomed negative news stories about the TEC-9/DC9s because "whenever anything negative has happened, sales have gone tremendously high."

It turns out the debate corresponds very deeply, with inferences from design, proposed technology mandates, making inducement arguments, and so on. It's surprisingly similar.

I'm not going to say anymore. But the analogy turns out to be provocative on many levels.

Grokster and being careful what you wish for ...

[I have found something unique to post about the Grokster decision, instead of being doomed to leftover punditry!]

There's a fascinating passage in the court opinion's discussion of intent (page 7):

"StreamCast even planned to flaunt the illegal uses of its software; when it launched the OpenNap network, the chief technology officer of the company averred that "[t]he goal is to get in trouble with the law and get sued. It's the best way to get in the new[s]."

Wow. He sure got his wish! In the sense of "Be careful what you wish for, because you might get it".

It would be very interesting to see the full text of that email (it doesn't seem to be available on the free web, and I don't have access to pay legal databases). It might have been gallows humor. Then again, some naive people have seriously told me I should deliberately get myself sued, for similar reasons (I do NOT put much faith in their advice!).

Grokster 0-9 loss

Read it and weep:

Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirma- tive steps taken to foster infringement, going beyond mere distribu- tion with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses. ...

SOUTER, J., delivered the opinion for a unanimous Court. GINSBURG, J., filed a concurring opinion, in which REHNQUIST, C. J., and KENNEDY, J., joined. BREYER, J., filed a concurring opinion, in which STEVENS and O'CONNOR, JJ., joined.

Let the punditry begin!

CDT - "Protecting Copyright and Internet Values"

Center for Democracy and Technology has a "Balanced Framework for Online Copyright Protection" policy paper on "Protecting Copyright and Internet Values"

"This paper seeks to outline a general framework for addressing the problem of copyright infringement on the Internet in a balanced fashion."

I made a comment at Ernest Miller's blog, which has been well-received, so I'll repost it here:

It's important to understand that CDT is basically a business-oriented policy organization, mostly telecomm. Not that that's a bad thing per se. But that's what they are.

The report is "balanced", from their perspective - it's balanced between the interests of the business of big copyright-owners, and in the interests of the business of big tech/bandwidth companies. These are somewhat in conflict, and CDT outlines the issues.

Value add - for a further sense of the genre of these sorts of policy papers, read my earlier post analyzing CDT's Library Censorware Wish List ("Principles").

Elite Torrents domain name now has FBI contact information

[Citizen journalism! Breaking News! Exclusive! Must credit Seth Finkelstein's Infothought! :-) ]

The Elite Torrents domain name seized by the goverment has now had its registration data altered to have FBI contact information. Details are present in the elitetorrents.org WHOIS info, which I've mirrored in the extended entry below (just in case it changes).

Domain ID:D104608983-LROR
Domain Name:ELITETORRENTS.ORG
Created On:07-Jul-2004 23:51:37 UTC
Last Updated On:26-May-2005 04:28:03 UTC
Expiration Date:07-Jul-2005 23:51:37 UTC
Sponsoring Registrar:Go Daddy Software, Inc. (R91-LROR)
Status:OK
Registrant ID:GODA-011841734
Registrant Name:ICE FBI
Registrant Organization:Department of Justic
Registrant Street1:1234 Washington Avenue
Registrant Street2:
Registrant Street3:
Registrant City:Washington DC
Registrant State/Province:District of Columbia
Registrant Postal Code:90650
Registrant Country:US
Registrant Phone:+1.0000000000
Registrant Phone Ext.:
Registrant FAX:
Registrant FAX Ext.:
Registrant Email:no-piracy@ice.gov
Admin ID:GODA-211841734
Admin Name:First Last
Admin Organization:FBI
Admin Street1:1234 Washington Avenue
Admin Street2:
Admin Street3:
Admin City:Washington DC
Admin State/Province:Washington
Admin Postal Code:90650
Admin Country:US
Admin Phone:+1.8885551212
Admin Phone Ext.:
Admin FAX:
Admin FAX Ext.:
Admin Email:piracy@fbi.gov
Tech ID:GODA-111841734
Tech Name:First Last
Tech Organization:FBI
Tech Street1:1234 Washington Avenue
Tech Street2:
Tech Street3:
Tech City:Washington DC
Tech State/Province:Washington
Tech Postal Code:90650
Tech Country:US
Tech Phone:+1.8885551212
Tech Phone Ext.:
Tech FAX:
Tech FAX Ext.:
Tech Email:piracy@fbi.gov
Name Server:PARK11.SECURESERVER.NET
Name Server:PARK12.SECURESERVER.NET
Name Server:
Name Server:
Name Server:
Name Server:
Name Server:
Name Server:
Name Server:
Name Server:
Name Server:
Name Server:
Name Server:

Operation D-Elite and "domain-hijacking" elitetorrents.org

As part of "Operation D-Elite":

[On May 25, 2005], agents of the FBI and U.S. Immigration and Customs Enforcement (ICE) executed 10 search warrants across the United States against leading members of a technologically sophisticated P2P network known as Elite Torrents. Employing technology known as BitTorrent, the Elite Torrents network attracted more than 133,000 members and, in the last four months, allegedly facilitated the illegal distribution of more than 17,800 titles - including movies and software - which were downloaded 2.1 million times.

In addition to executing 10 warrants, federal agents also took control of the main server that coordinated all file-sharing activity on the Elite Torrents network. Anyone attempting to log on to Elitetorrents.org today will receive the following message: "This Site Has been Permanently Shut Down by the Federal Bureau of Investigation and U.S. Immigration and Customs Enforcement."

(my emphasis).

My first reaction, when I heard what had happened to Elitetorrents.org : Talk about domain-hijacking - that's got to leave a mark.

There was some speculation the site had simply been cracked, but the press-release established that it was truly done by the government. The technical method is somewhat confusing. The Elitetorrents.org site now has a frame which points to an IP address (192.31.21.68) of a machine at sdsc.edu (San Diego Supercomputer Center), but that IP reverse-resolves to "www.dhs.gov". And there's a red-text-on-red-background "RTJKJAS" which some people thought was a cracker tag.

After too much time spent investigating this myself, I've concluded that yes, the elitetorrents.org site is indeed now being run off someone's desktop machine at SDSC. In fact, (alert - not an echo here!) I think I have a pretty good guess as to the name of the person doing it. But there's no hard evidence, just a likely candidate. And they're legit, so there's probably nothing for me to do with that information. If I were a organization-backed journalist, I'd try for some sort of exclusive interview. But as a "citizen" journalist (which is an alias for unsupported, unpaid, free-lancer), I don't want to mess around with the Department of Homeland Security. I just don't.

By the way, does anyone in my tiny reader base know the legal authority for the government to domain-hijack a site like this? I'm sure there's some justification, seizure of apparatus in a criminal enterprise or some such. But ... isn't there a First Amendment issue here? Has it been definitely ruled on, in the case of domain names? If someone owned a radio station, and were accused of similar copyright violations, could the government start out as here, by taking control of the radio station, and replacing everything with the continual broadcast of a similar message? It strikes me that the accused are being denied a critical method of putting forth their side of the story, the one place people would most naturally look for it.

File-sharing controversy and the rules of PR campaigns

Fred von Lohmann responded on filesharing: (excerpted)

... And I think we need to emphasize the many virtues of fan-driven, wide-open file sharing. We ought not abandon the fans and join the chorus telling them to hang their heads in shame for building the greatest music library in the history of the world.

The problem, of course, was the lack of compensation to artists and owners. On this point, I agree with [Derek Slater] -- file-sharing without compensation is not realistically sustainable, nor good in the long run for those who care about music or the Internet. But recognizing that, and working on a solution for that problem, is not the same thing as saying that file-sharing is wrong. All the instincts that made file sharing so successful are exactly the right instincts for a vibrant creative, cultural and innovation environment."

I suggest there's a further problem in the discussion, regarding target audience. In a policy paper which is pitching the recording industry, it may be important to write at length indicating one's extreme moral disapproval of file-sharing without compensation. That's part of establishing one's credibility with the business audience, of convincing them to trust you at least long enough not to be dismissed out of hand.

But as far as I've ever been able to measure, in a general sense, to a first-order approximation the effectiveness of one's message is determined by one's press-reach divided by the press-reach of opponents (strongly modified by whether the audience wants to believe the message). And sadly, not intellectual rigor or moral fortitude. Those are way down the list of factors (yes, I've grown bitter). Thus, a PR campaign which wants to promote the positive and worthwhile effects of technological advances in methods of content distribution (i.e., cheap copying), won't necessarily benefit from spending large amounts of time being critical of the negative effects of these changes on old business models.

That doesn't automatically imply support of infringement. There can of course be nudge-nudge-wink-wink campaigns. As the lawyers say, it's a "fact-specific" situation. But given that I've seen the context of bad behavior, my view is that this isn't it.

The Movement and the Excluded Middle, applied to Copyright

Derek Slater thoughtfully elaborated on "More on File-Sharing and the Commoners' Common Platform":

I think Seth is right that it's unnecessary and ineffective to try to ensure "moderation in everyone in the cause." I don't expect [Down Hill Battle] or other similarly-thinking groups to change their stances. However, to the extent we jointly try to define "what's at stake in the fight for digital rights" and synthesize into a common cause, that platform should be built on shared values. Maybe it's impossible to do that, as Seth suggests, but if we're going to try, it's important to outline what those shared values are (or aren't).

And Walt Crawford posted about "Finding a copyright middle ground":

Seth offers a thoughtful essay on an aspect of copyright that I, for one, find enormously troubling: The tendency of both "sides" to deny the possibility of a balanced middle ground.

In reply to the points, let me just repost something a wrote a while back, which covers the ground:

Copyright Is Broken And Nobody Knows How To Fix It (which I've noted not is not an especially original insight, but let's call it a classic, in the public domain even.)

So I've just listened to the IICA/INDUCE Act hearing, and been participating in the Freedom-To-Tinker discussion. For a while, I've wanted to write something about Walt Crawford's "Cites & Insights" library 'zine (not blog) Copyright special issue, which has extremely extensive discussion of recent copyright matters. After many, many pages of thoughtful (and non-echo-chamber) discussion, he finally concluded:

I believe in balanced copyright. If that sometimes results in coverage that seems to say "a curse on both your houses," that's because sometimes neither extreme makes much sense.

I kept thinking about this. Because, copyright abstractly makes no sense. By this, I don't mean something silly, not property-is-theft. Rather, I mean something deep, that the technological change has completely disrupted the extremely complex set of functional compromises that made copyright work in practice (for example, formerly being almost entirely a restriction on businesses, but now turning into a control on users and technology development).

Which brings us to the INDUCE Act. Much too much discussion basically boils down to posturing. As I've said in my DMCRA hearing impressions

It would great if everyone could just take a loyalty oath at the start and thus get beyond the endless querying about whether they believe in some sort of heretical radicalism. Something like:

"I am not now, nor have I ever been, a member of the Communist Party. I pledge allegiance to copyright, and to the intellectual property system for which it stands, one compensation, responsible, with property and profit for all."

Let's all assume we want artists to be fairly rewarded, and bad people punished. As well as peace on earth and goodwill to all. Now what?

For me, the most chilling moment of the hearing was when Hatch outright said, "Something has to be done here". The problem is that there may be no equitable solution which both preserves openness and current industry profits. Repeating that these both should be served, doesn't make it so. We have improvement in the ability to exchange information again colliding with a social regime which says information must be controlled. I'm on the openness side, but so what? Who listens to me? (except in extraordinary circumstances).

Nobody has the answer. Sorry, I sure don't :-(.

Liberals vs. Radicals, copyright version

Derek Slater writes "The Commoners' Common Platform" (echoed Donna, Ernie, my emphasis below):

It gives me an opportunity to talk out some things I've been thinking about lately in regards to what the Commoners'/Free Culture common platform should be - that is, what planks, from the array of diverse interests involved in the copyfight, can we synthesize into one common cause.

My view: To a good approximation, we can't. Or rather, welcome to The Movement, try not to get shot by all the in-fighting.

Whenever there's a problem affecting a system (doesn't even have to be a crisis, just a problem), there's always liberal and radicals giving their perspective. The liberals write policy papers, "How we must balance competing rights to achieve comity in the modern era". The radicals hold demonstrations where they chant "Burn, baby, burn! Up against the wall! The revolution is here!". As a rule, liberals and radicals hate each other. They're often more destructive to each other than the nominal common enemy, in a way ordinarily misattributed to "personal" or "ego" (which means stop thinking about it). Rather, they're competing for the same resources, and attacking a competitor is viewed as a good strategic move.

In specific, no radical will ever change their mind from being criticized by a liberal. There might be some small value to a liberal in terms of positioning, to publicly denounce a radical. The key to doing this maneuver well seems to be to pick some very weak, unsupported, radical, who can't retaliate. That gives the benefits with no cost.

But, overall, I think history shows such denouncing simply doesn't go far to convince the overall public of one's reasonableness. I see this in, for example, the number of times I've had to explain to interested people how, e.g. Larry Lessig is almost painfully moderate. It's an extremely frustrating aspect for an intellectual to wrap one's mind around. But empirically, when lying works in attacks to smear one's view, no matter how hard one works at distancing, the mud just doesn't come off. So I think, counter-intuitively, worrying about being tarred with extremists is not a function of the extremists - if they didn't exist, they'd be invented.

In the few media interactions I've had regarding censorware, whenever I'd get a question about whether or not I agreed with the alleged wild-eyed radicals of Peacefire, (sorry Bennett :-)), I'd decline the invitation to play let's-you-and-him-fight. I would say something along the lines that I thought so-and-so, and I could talk about what I thought, but not anybody else. It worked for me. Maybe it was just that I was sympathetic and at too low a level, while higher-level people would have more pressure. But I actually didn't feel I had to carry any burden of ensuring moderation in everyone in the whole cause (heck, truth be told, I think Peacefire's radicalism eventually worked for them overall, much better than my attempts at a pseudoprofessorial presentation).

Overall, I think the copyright battle is coming down to basically which of two content business models can be made to work overall, both of which are proving very difficult in practice: The lock-down DMCA/DRM/INDUCE maximal model, or the loss-leader model (alternative compensation systems are interesting and worthwhile, but haven't been implemented in the smallest way). In none of these systems is there a desperate need to herd cats.

Broadcast-Flag Burning In Court, To Massive Cheers

"Tigger" time:

The "Broadcast Flag", a restrictive technology mandate, has been burned in court.

American Library Association v. FCC, No. 04-1037b

Much punditry, so I don't have much to add besides cheerleading - Yay! Yay! Yay! (It's problematic for essayists to write posts which just cheer, but such sentiments are also community-builders, so perhaps I can be forgiven this one).

An Original (to me) Argument Found Against DVD Expurgation

Sometimes, a piece I've written will pop up in the strangest places. It's not a matter of obscureness, but rather a certain kind of incongruity. I just found the following mention:

President Bush signed the Family Entertainment and Copyright Act into law last week. The decision is a victory for the makers of ClearPlay DVD machines and other film-editing devices intended for use in the home. But it could be a setback for companies like CleanFilms and others who edit copyrighted films to make them more "family-friendly"—and then market them to that target audience.

...

You can read more about this landmark decision at the Call Center CRM News Blog, at the Infothought blog, at The Hollywood Reporter, and at Public Knowledge.

What publication had this set of pointers, including me?
ChristianityToday.com

Given what I've written on the topic, perhaps I'm being shown the virtue of humility.

Anyway, reading that article, I was led to the author's own perspective:

Christian commentary - Anti-Smut Machines: Why This Is a Bad Idea

The writer makes many good arguments against bowlderization, ones which will be familiar to the typical copyfighting reader. I'll paraphrase them as artistic-integrity, forbidden-fruit, unintended consequences (here, where Christian themes might be expurgated), and so on. All concepts which will be well-known to people who follow the debate. But as a bit of cross-cultural distribution, I'll quote the novel (to me) Christian sin-antibody argument:

Censorship does not keep us from doing evil - it just blocks us from seeing it. If we develop a "cover your eyes" response to bad behavior, we are not developing a strength of spirit that resists sin. We are simply ignoring sin, and thus remaining weak and vulnerable. Jesus says it is not what goes into a man that corrupts him, but what proceeds from him that corrupts him. Scripture exhorts us to put on the "full armor of God" so we might resist the schemes of the devil. It does not exhort us to avert our eyes whenever someone's misbehaving.

I recognize in this a form of the argument that we are not helped by being isolated from knowledge, but rather should be instructed on how to recognize and fight evil. But I must admit I've never seen anyone put it quite that way before. And seeing a new argument in these debates happens very rarely.

Cites & Insights May 2005 and Family Movie Act commentary

Walt Crawford's publication Cites & Insights 5:7, May 2005 is out today.

Excellent meaty reading as always. And the announcement gives a good indication of why one would want to read it - covering everything from recent copyright issues to blog ethics. Note I'm mentioned, for e.g. Family Movie Act commentary and blogdom a-list issues

This is the sort of issue where I wonder how far I should go beyond just pointing to it. On the gist of the topics, there's many items where I have disagreements, more than quibbles, but less than full-throated flaming motivation. It's the perennial topic of when one gets quoted in the press but has article has problems.

For example, regarding the section FMA: Watching the Way You Want, Walt has

I agree that it's not a big win--the big win, if there is one, is in *not* getting the really bad provisions that were up for adoption in 2004--but I disagree with [Seth's] characterization. The law does not direct itself to one particular market, and I don't believe it's reasonable to assert that it does. I'm no "narrow-minded control freak," but I might choose to use something like ClearPlay for certain movies that I might otherwise find worthwhile, but where I'm too squeamish for the explicit blood and gore. Call me a wimp -- but don't call me a control freak.

I'd reply the issue is not whether one can imagine, in a theoretical sense, some use by other than religious prudes - it's who wanted it, and for what. I found the section in the Congressional record, which states outright (my emphasis):

Before going into a title-by-title discussion of the bill, I would like to express my particular support for the Family Movie Act, which has been included in this legislation. Chairman LAMAR SMITH and I worked on this bill last Congress. It's important legislation both to parents who want the ability to use new technologies to help shield their families from inappropriate content as well as the technology companies, such as ClearPlay in my home State of Utah, that are working to develop these technologies. The Family Movie Act will give parents more say over what their children see, without limiting the creative control of directors and movie studios.

If that's who it's intended for, that's who it's intended for, as a simple statement of fact. ClearPlay is not a general service which happens to be also used by narrow-minded control freaks. It's a service for narrow-minded control freaks which people speculate might possibly conceivably potentially have a use by somebody else, but nobody has actually has seen it happen (which should tell you something!).

So, while I'm not opposed to such people now having a recognized right to bowdlerize movies for their own family, I think it's critically important to understand the political context of that section of the law. There is a reason that Congress (especially this Republican Congress) passed that particular copyright exemption, and that reason is far better rendered as not "user rights", but "Religious Right".

Family Entertainment and Copyright Act

The Family Entertainment and Copyright Act has a provision that is generating a mini-feeding-frenzy over a combination of the perennial definition-of-censorship debate, combined with the understandable desperation of copyfighters to grasp at something, anything, to have a victory. Here is the text of the passage describing one brand-new exemption from copyright infringement (taking the last, "S.167.RH", version):

SEC. 202. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO CONTENT IN MOTION PICTURES.

(11) the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology.; ...

In simple terms, this is aimed at the market for religious prudes who want expurgated movies. The underlying issue is a fairly obscure tension in copyright law, between the movie business and extreme social conservatives. The problem is as follows:

Copyright law generally forbids others making "derivative works". Cutting out naughty bits from movies might count as a "derivative work" (the boundaries here are unclear). The market for extreme social conservatives is too small to justify officially making special bowdlerized movies versions for their sensibilities. So they've made their own versions. Laudable in some way, but with regard to copyright, THIS IS A PROBLEM! Because if religious prudes are allowed to remix, alter, recreate, a copyrighted work, that potentially opens a wedge for anybody to do so. On the other hand, it's very, very, bad politics these days to be against what religious conservatives want, especially when it comes to protecting the children. Bad, bad, bad.

So what do do? Well, copyright law does not disintegrate in a flash of contradiction. The answer is almost elegant. Grant the ultra-prudes a special, minimal, exemption, just enough capabilities meet their needs, but so constrained and qualified that in practice, nobody else will ever be able to make use of it. Problem solved (maybe).

This isn't much of a "free speech victory". It isn't really a "free speech defeat" either. It's more of a clever solution to a political copyright problem, that doesn't help anyone besides those directly involved in movie bowdlerization.

Some people are worried about this issue as another ratings-type effort, like the old censorware wars. That is, where a system is propagandized as "informative" and "for parents", but it's essentially quasi-judicial and for broad banning. It's good to see such thinking in general. But this isn't a ratings-type case, for the simple reason that nobody *is* setting up a system for broad banning. There's no extensive propaganda effort to tell people that what looks like a duck is really a parental empowerment aquatic quacking technology embodiment.

However, if not a threat, it's not a big win either. To abstract away the evident politics and reasoning behind how the exemption was created is to be wilfully blind to the reality of the situation. This provision is not an endorsement of innovation or a gateway to remixing culture. It's a tiny sop to fanatical narrow-minded control-freaks, no more. Now, while it's not wrong _per se_ to accommodate fanatical narrow-minded control-freaks, neither is that exactly a great occasion for proclaiming an advance in user rights.

The critical point is that, no matter how much we might like it to be so, this provision is not a stepping-stone to greater cultural freedom. The context shows that very clearly.

meta-Grokster

The MGM v. Grokster (liability standards for Peer-To-Peer technology) case has now been, and will be, chewed-over by all The Usual Suspects, with extensive coverage. This is the sort of situation for the saying: It doesn't matter what I think, it matters what the court thinks.

The reports indicate that judges at least are taking the issues very seriously. Especially the iPod problem. So while I'm still pessimistic, at least things apparently aren't as bad as they could be. And there might actually be a narrow decision that doesn't do sweeping damage. My guess is for a fragmented, divided set of opinions, which is probably the best reasonable outcome possible.

MGM v. Grokster pessimism

[Reposting my MGM vs. Grokster pessimism post of a while back, since March 29 is the trial of the Grokster case]

I'm going to emerge for a post on copyfighting, putting on my Eeyore suit:

"Write down your worries. And then depress your companions by reading them out loud."

Regarding the upcoming MGM v. Grokster case concerning the legal liability standards for Peer-To-Peer technology, I think the technology/freedom side is going to lose the case, and this is why:

The current law, the "Sony" standard concerning the copyright defense for product-makers of having substantial non-infringing use, was made under too many factors that I don't think auger well for the current outcome:

1) The original "Sony" Betamax decision was a 5-4 split. It doesn't get any closer.

2) The VCR didn't, in practice, threaten the business model of broadcasters. Commercials were viewed no matter what time program was seen.

3) It was a case of one established big corporation vs. another established big corporation. So the plaintiffs were socially equal to defendants.

In legalese, I suspect the geek phrase "disruptive technology" translates into "a basis for distinguishing the current situation from the existing precedent".

The sad thing is, I don't think the P2P freedom battle is intrinsically unwinnable. Only I can't see an ultraconservative Supreme Court ruling against "all the money in the world" and in favor of only a potential. If that potential were developed, maybe five years in the future, the scales might be different. But right now ... there's no (respectable) there there. It could be made, but it hasn't yet.

Oh well, nothing I can do ... "We can't all, and some of us don't. That's all there is to it.".

Bill Thompson, Creative Commons, and "Moral Rights" in Copyright

I'm always astonished when something I write is read, and has any impact at all. Recently "BBC World Service programme Go Digital" commentator Bill Thompson wrote a criticism of Creative Commons:

There will be no winners if we do not sort out copyright, argues columnist Bill Thompson. But let us not forget moral rights.

He brings up certain fairly obscure provisions of copyright law, called "moral rights". Now, these have absolutely nothing to do with how the words might look to someone unfamiliar with the issues. They relate to very minor aspects of copyright, not concerned with economics, mostly having to do with identifying the author, or in a few special cases, a right to prevent certain uses even apart from fair use. They're practically non-existent in the US, but slightly stronger in a few European countries, notably France. However, the words "moral rights" sound like "morality of property right" to many people's ears, so those set off the automatic reactions generated by such a topic. I believe what's going on here is a problem with people's conceptions of copyright. "Moral rights" as a colloquial phrase describes how people naively think about copyright, rather than the overwhelming economic bargain system. So the issue can be a kind of proxy for the mismatch between people's naive abstract concept of copyright law, and its reality.

Bill Thompson then criticized Creative Commons licenses, for supposedly not taking the "moral rights" copyright provisions into account. Though the underlying complaint was apparently more about the entirely different topic of why he felt compulsory licenses were against his conception of the morality of copyright property rights.

Anyway, with a certain amount of trepidation, I wrote up a message noting possible misunderstanding of the "moral rights" aspect copyright, and sent it to an old United Kingdom mailing list about cyber rights to which I happen to still be subscribed, where I wondered if a few UK lawyers might weigh in on the topic. Lo and behold, Bill Thompson was a member of the list, and sent this clarification of his views (reposted here with his permission):

From: Bill Thompson
To: cyber-rights-UK[at]cyber-rights.org
Subject: RE: Creative Commons, "Moral Rights", UK law
Date: Sat, 26 Feb 2005 19:12:21 -0000

Following what Seth and then Nicholas have said, I'd try hard to argue that the BNP using anything of mine to support any of their positions was inherently derogatory - but I think Nicholas is right, that I'd have a hard time.
My problem is with blanket/compulsory licensing of content rather than fair dealing - which would require some criticism/comment attached to the use. After all, I've been quoted approvingly by a Tory MP in Parliament (over the problems with e-voting) and I didn't object to that. I recommend Larry Lessig's recent post, at
http://www.lessig.org/blog/archives/002449.shtml
for anyone who wants to know more - it's a useful clarification, and makes his (and, I would reckon, the Creative Commons) argument a lot clearer. It also makes me a lot happier with what they are doing.
Still asserting my moral rights where I can, though.
Bill

Maybe some misunderstandings will now be fixed, and I will have done some good in the world.

[Discloser/disclaimer: This post deliberately outright avoids engaging certain aspects of the various articles, since I am an ant among elephants.]

EFF's HDTV-PVR Cookbook

In contrast to my Eeyore suit, some projects deserve a "Tigger":

EFF's "HDTV-PVR Cookbook", regarding how to build your own personal video recorder, deserves notice. This is important because it's a technical way to oppose the Broadcast Flag mandate. (see my much earlier "Broadcast Flag - fighting it with Open Source").

As EFF describes on our Digital Television Liberation page, recent regulations in the United States will ban the manufacture of DTV-receiving hardware described here after July 1, 2005. While we challenge these regulations in court, the clock is ticking, and it's safest to assume that it will be difficult to get unrestricted DTV receiving equipment in the future the way you can today. [...]

Now, more than ever, hobbyists have a chance to build useful, enjoyable "convergence boxes" that show the contrast between the restrictive technological world entertainment companies have in mind and the freedom and creativity that the programmable PC can unleash.

There's a political saying, "You can't beat somebody with nobody.". I've long felt the net equivalent is something like "You can't beat the copyright business with policy argument". There has to be something on the other side, something besides a position paper or a theoretical article. And it helps immensely if it's something practical, that people might actually want to use.

Now, this isn't a panacea. The instructions are still very hobbyist oriented, they aren't" for grandma". There's much refinement which could be done. But it's so refreshing to see something physical, instead of Yet Another Pontification That The Broadcast Flag Is Bad And Contrary To Innovation (not that those are wrong - but they very rapidly reach a point of diminishing returns in utility).

MGM v. Grokster pessimism

I'm going to emerge for a post on copyfighting, putting on my Eeyore suit:

"Write down your worries. And then depress your companions by reading them out loud."

Regarding the upcoming MGM v. Grokster case concerning the legal liability standards for Peer-To-Peer technology, I think the technology/freedom side is going to lose the case, and this is why:

The current law, the "Sony" standard concerning the copyright defense for product-makers of having substantial non-infringing use, was made under too many factors that I don't think auger well for the current outcome:

1) The original "Sony" Betamax decision was a 5-4 split. It doesn't get any closer.

2) The VCR didn't, in practice, threaten the business model of broadcasters. Commercials were viewed no matter what time program was seen.

3) It was a case of one established big corporation vs. another established big corporation. So the plaintiffs were socially equal to defendants.

In legalese, I suspect the geek phrase "disruptive technology" translates into "a basis for distinguishing the current situation from the existing precedent".

The sad thing is, I don't think the P2P freedom battle is intrinsically unwinnable. Only I can't see an ultraconservative Supreme Court ruling against "all the money in the world" and in favor of only a potential. If that potential were developed, maybe five years in the future, the scales might be different. But right now ... there's no (respectable) there there. It could be made, but it hasn't yet.

Oh well, nothing I can do ... "We can't all, and some of us don't. That's all there is to it.".

Cites & Insights, December 2004

People sometimes argue to me that I underestimate the extent of where I'm heard. I tend to regard that argument as mere kind words (after all, well-wishers aren't going to say to me that it's hopeless, I'll never win). But every once in a while I do wonder about it.

I've learned that Walt Crawford is a "blockbuster" ("In the library world he's like Madonna, ..."). So I should note his latest library 'zine (not his blog) issue, "Cites & Insights" December 2004. And I'm mentioned (my links below, but emphasis in the original):

One quick note in a rare three-issue sequence. In Cites & Insights 4:12, I discussed the Sima GoDVD! box, which "enhances" video in the analog domain so that you can convert it to digital form to burn to DVD, and in the process appears to undo Macrovision copy protection (which works by degrading analog video in a specific manner). In the following issue, I noted a clarification from Seth Finkelstein to my presumption that GoDVD! couldn't be prosecuted under DMCA because it operates entirely in the analog domain: DMCA had a special provision to protect Macrovision even in analog cases. I commented that GoDVD! was still probably in the clear, because the DMCA clause discusses recording devices, and GoDVD! isn't a recording device. An October 13 post at Finkelstein's Infothought blog (sethf.com/infothought/blog/, highly recommended) quotes my full discussion, highlights the last sentence ("...it's just a video enhancement box"), and suggests that GoDVD! probably doesn't violate the letter of the law. "On the other hand, this looks very much like what a hostile judge would view as a loophole. Or at least fodder for a quick amendment." His conclusion: "Even if it's true now that the GoDVD! box does not violate the Macrovision section of the DMCA, I'm not optimistic as to how long it will remain true."

Leaving shameless self-promotion, the sections recounting the recent history of the INDUCE/IICA, and the by now typical chop-suey of copyright legislation, are extremely useful overviews. Walt writes in-depth coverage, but with enough context so that someone new to these topics will be able to understand it.

For something completely different, I have a comment on the following part:

I'm sure every Cites & Insights reader knows that any PC with any connection to the internet -- even a dial-up connection -- must have an active firewall as well as full-time virus software updated at least weekly. ... Or let your machine be used to attack other machines and spread spam even further, while taking most of the CPU power you're paying for. It's your choice.

As the saying runs: Remember: it's a "Microsoft virus", not an "email virus", a "Microsoft worm", not a "computer worm".

Linux machines do need firewalls for additional security. But these days, it's almost to the point that before I'd use a Microsoft program for email, they'd have to pry my keyboard from my cold dead fingers. Quite seriously: The need for full-time virus software is not a fact of life, it's a fact of Microsoft. There's reasons for that, design constraints and deliberate decisions which favor convenience over security. But those decisions have costs. I've long conjectured that one of the best selling points for Linux, in terms of just a little concrete detail which may be worth more than any abstraction, is the sheer relief of not having to worry about the @#$% Microsoft Word viruses and Microsoft Browser security holes.

Digital Media Consumers' Rights Act (DMCRA) hearing transcript posted

The DMCRA hearing from a while back (the "DMCRA" is the "anti-DMCA" law) seems to have its transcripts available now. They're not (yet) on the specific page. But way, way, down, on the general hearing transcripts page, look for the line which reads:

"Serial No. 108-109 -- The Digital Media Consumers' Rights Act of 2003, May 12, 2004 TEXT 498K PDF 3.7M"

Get the PDF if you have the bandwidth, it has material that's only present as scanned images. Including Lessig's letter after the hearing, which addresses very directly the property-rights vs. fair-use argument (buried way down towards the end, around page 129).

[Scoop? Scoop? Must credit Seth Finkelstein's Infothought! :-)]

ITConversations "Law and IT" Bnetd v. Blizzard case show appearance

Ernest Miller does a net radio show for ITConversations about "Law and IT"

He's now posted a show about the Blizzard v . BNETD case with guests law professor Michael Madison and me.

The Specter Of INDUCE/IICA ACT-ion

The IICA/INDUCE Act (a new copywrong of legal liability for "inducing" infringement) keeps threatening to appear in the Senate.

Now, I am hors de combat, on the basis that either anything I do won't have an effect, in which case it would be a waste of effort, or it would have an effect, in which case I wouldn't get any credit (sorry, that's just the truth).

But for those low on the power scale who want to try to make a difference, it might be useful to look at a personal letter I drafted during the Dmitry Skylarov case. I hope it's helpful in terms of showing how to structure a good advocacy letter:

Dmitry Skylarov case letter to Senator Kennedy
http://sethf.com/essays/minornet/dmitry-skylarov-kennedy.php

[Update: Seems dead for now. Hopefully no more revisions for a while. But one never knows ...]

Fair Use, and The Limits Of Contract

Yet one more noted atrocious aspect of the Blizzard v. BNETD case is the contact-supremacy view which overrides other consideration. Again, the relevant passage (my notes in brackets):

The Court finds the reasoning in [the case] Bowers [v Baystate] persuasive. The defendants in this [Blizzard v. BNETD] case waived their "fair use" right to reverse engineer by agreeing to the licensing agreement. Parties may waive their statutory rights under law in a contract. See, e.g, The Older Workers Benefit Protection Act, 29 U.S.C. § 626(f) (2004) (statute outlines minimum requirements for waiver of statutory right to sue under the ADEA). In this case, defendants gave up their fair use rights and must be bound by that waiver.

That's about as clear a statement of reasoning as one can get. It's a contract. But the overall difficulty with challenging this view of contract, is that, for example, one can readily contract-away one's free-speech rights. That's exactly what a non-disclosure agreement (NDA) is. It's a contract to bargain away the right to talk about a topic in return for some benefit. Some Libertarians will literally argue that you should be able to sell all your internal organs, or even sell your children (excuse me, your "parental rights").

So the question is about the limits of contract. Now, I can say that a contract to take away one's fair use and reverse-engineering rights should not be permitted, as against public policy. Do you hear me? This ruling is an abomination, a stink in the nostrils, unfit to be bird-cage liner.

But, who cares if I say that? It's not my opinion which matters. I can point out that the market won't fix this, and reverse-engineering is a very much a minority right. But that's not likely to get far either. Saying the decision is wrong unfortunately provides no way to change it.

Chamberlain v. Skylink (Garage Door Openers), DMCA, and fair use

So, the Chamberlain vs Skylink DMCA case has been decided in favor of the right to have compatible garage door openers. But as I've noted in an earler Chamberlain v. Skylink post, I'm not anywhere nearly as enthused as many others I'm afraid I've again turned into Eeyore.

As I read it, the whole opinion boils down to the judicial version of a Monty Python-ese statement of: "Stop that! It's silly.". Or, in legalese:

Under Chamberlain's proposed construction, explicated at oral argument, disabling a burglar alarm to gain "access" to a home containing copyrighted books, music, art, and periodicals would violate the DMCA; anyone who did so would unquestionably have "circumvent[ed] a technological measure that effectively controls access to a work protected under [the Copyright Act]." § 1201(a)(1). ... Yet, were we to read the statute's "plain language" as Chamberlain urges, disabling a burglar alarm would be a per se violation of the DMCA.

My take on this is the inverse of many other commentators. I think here, the DMCA 1201(c) fair-use-not-affected section is being used as the statutory support for the basic statement of "It's silly". But that doesn't mean anything should be read into other instances:

We leave open the question as to when [fair use] might serve as an affirmative defense to a prima facie violation of [the DMCA]. For the moment, we note only that though the traditional fair use doctrine of [fair use] remains unchanged as a defense to copyright infringement under § 1201(c)(1), circumvention is not infringement.

That is, nothing here has been resolved regarding the tension between fair use and copying. Here's the critical part (emphasis added):

Such an entitlement, however, would go far beyond the idea that the DMCA allows copyright owner to prohibit "fair uses . . . as well as foul." Reimerdes, 111 F. Supp. 2d at 304. Chamberlain's proposed construction would allow copyright owners to prohibit exclusively fair uses even in the absence of any feared foul use.

All this is saying is, basically, that if there's no conflict between fair use and anything else, the DMCA can't be used as, in effect, a patent for any product. That's nice. It's good for other businesses. But it doesn't address the issues of DMCA reform, which are exactly that conflict.

JibJab Lawsuit Outcome and Creating A Copyright Lawsuit Downside

I'm a bit late to the analysis party on the JibJab lawsuit win. What I find notable myself is that this is a rare instance where there has been a downside to bringing even threatening (clarified per Ed Felten's comment) a copyright lawsuit.

The typical mathematics, is that when a copyright lawsuit is brought, the worst thing that can happen is that the plaintiff is in the same position they started. That is, they're ordinarily against some use, they try a lawsuit, if they win, they've stopped it, if they lose, they're no worse off than if they did nothing. So this favors rolling the legal dice. Of course, lawsuits cost money, but to a large corporation, that's just a cost of doing business.

Now, the above outcomes are vastly simplified. They're always the possibility of "bad publicity". Or losing so badly that the defendant recovers legal fees (e.g. Barbie satire).

But the outcome here, where the song "This Land Is Your Land", is discovered to arguably be in the public domain, is a rare outcome where a plaintiff now might reasonably wish they'd never brought the case in the first place.

That's the broader, "precedent"-like, significance here. Where the next intimidation lawsuit being considered, might in fact not happen, for fear of dice-rolling result, by the plaintiff.

JibJab lawsuit dismissal CONFIRMED!

SCOOP!

08/24/2004 5 NOTICE of Voluntary Dismissal Without Prejudice by Jibjab Media Inc., (Cohn, Cindy) (Filed on 8/24/2004) (Entered: 08/24/2004)

[Update: Wired News has it at 8:29 Eastern. Life is hard for the "citizen journalist" :-)]

[Update2: EFF Press release up now]

Copyright items round-up - Junger (code/speech), Skala (law/tech), Crawford (info commons)

"Little people" deserve link-love too:

Peter Junger's Samsara blog for August is full of interesting yet unremarked copyright/code/speech items. It ranges from Is Source Code Like a Machine Gun? to Why All the Fuss About Source Code? Copyright, Machine Code, and Compilers. Disclaimer: He's also posted, ahem, Seth Finkelstein's Contribution.

Matthew Skala has a follow-up piece on Colour, social beings, and undecidability. Basically, writing from the tech perspective (which I share) that law is about political/social rules, not physical/mathematical rules.

Walt Crawford's library 'zine "Cites & Insights" (not blog - but there is now a Cites & Insights Updates Blog) has come out with the September 2004 issue. There's a long, informative, discussion of open-access publishing But not at all obvious from the capsule, buried deep toward page 20, is an interesting skeptical discussion of the Information Commons Report:

Will I become an advocate for the information commons? Not directly, not until the mental model makes sense to me--but that could change at any time. ... I was hoping that [the report] would convince me that "information commons" was a well-defined concept and one that I should support. That didn't happen--and I'm not sure whether it's because I'm unable to recognize the grand vision or because I don't buy this particular aggregation of concepts.

While I'm actually not in agreement (being mildly subject to the grand vision), the analysis is complex and subtle enough to be worth pondering, as non-polarized criticism.

MGM v. Grokster appeal victory, and The INDUCE Act Cometh

As will be noted by everyone in the whole copyfight universe, the MGM v. Grokster appeal concerning copyright liability for file-sharing programs, has been decided in a victory for the civil-liberties side (congratulations!)

In short, from the evidence presented, the district court quite correctly concluded that the software was capable of substantial noninfringing uses and, therefore, that the Sony-Betamax doctrine applied.

As also will be noted, this is not the end of the story, and there's likely to be further action from Congress:

Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, "The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress."

As I said a while ago in an old post concerning Grokster, "Streamcast copyright win, vs. LaMacchia case",

This reminds me much of the concluding part of the LaMacchia case:

This is not, of course, to suggest that there is anything edifying about what LaMacchia is alleged to have done. If the indictment is to be believed, one might at best describe his actions as heedlessly irresponsible. and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values. Criminal as well as civil penalties should probably attach to willful, multiple infringements of copyrighted software even absent a commercial motive on the part of the infringer. One can envision ways that the copyright law could be modified to permit such prosecution. But, "'[i]t is the legislature, not the Court which is to define a crime, and ordain its punishment.'

And the result there was the .NET act . I wonder what we'll get here?

And now, the answer is clear - IICA/INDUCE Act!

BSA Weasel == "Beagle Boys"!

The Business Software Alliance (BSA) has announced an "anti-piracy" site, with a kids' mascot ferret, and a contest to call it a name.

The BSA weasel creature reminded me of something I'd seen before. Something shady, disreputable, criminal. Finally, I remembered! The BSA weasel looks like he's a member of a criminal gang in Walt Disney Comics, the "Beagle Boys":

BSA Weasel	Beagle Boys

Look at the family resemblance. Same shirt. Same pants (gang colors?). Same squinty, hooded, eyes. Same toothy smirk. He's even wearing something on his chest, which, making allowances for updating to the modern age, might be a Beagle Boys identification patch (more evidence of gang affiliation!).

Traditionally, the Beagle Boys were after Scrooge McDuck's Money Bin. They must be diversifying. There's certainly a big money bin around the Business Software Alliance, one to rival Scrooge McDuck. So the gang has obviously gotten one of their younger members to convince the BSA executives to take him into the organization (using his weasel-skills - thus explaining what would otherwise be evident stupidity in having such a mascot). While everyone is distracted at the official contest ceremony, the rest of the gang will attempt to pull a heist. Classic plot.

It all fits ....

[Credit: Beagle Boys image from Kit's Silver Age Comic Books ]

Open Media

Open Media (not up yet) is today's Daily Memo, so I'll play. I assume the following is basically a press release, so it's OK to post it:

Today Marc Canter and I announced a major new initiative: Open Media, an open source media project that will attempt to foster grassroots media and spread users' creations to people's desktops through open standards.
http://www.newmediamusings.com/blog/2004/08/open_media_the_.html

http://marc.blogs.it/archives/2004/08/openmediaorg.html

Hope you'll spread the word (and join our effort in some fashion).

jd
http://www.newmediamusings.com

There's clearly a real problem here to solve. Interconnecting uses of Creative Commons media is something which could be very useful.

On the other hand, I can't wait to see what happens when someone contributes their own "amateur" videos (in the Paris Hilton sense of the word ...). Or how they're going to handle all the copyright-infringement claims which are sure to follow (perhaps this is also a data-mining effort for the declaratory fair-use lawsuits which Lawrence Lessig is seeking). It's definitely worth watching for those issues alone.

JibJab vs. Ludlow - Court Info

It's true - from the Court electronic database (no link, since subscription needed):

                            U.S. District Court
                  California Northern District (San Jose)
                 CIVIL DOCKET FOR CASE #: 5:04-cv-03097-PVT

   Jibjab Media Inc., v. Ludlow Music, Inc.,
   Assigned to: Hon. Patricia V Trumbull
   Referred to:
   Demand: $
   Lead Docket: None
   Related Cases: None
   Case in other court: None
   Cause: 28:2201 Declaratory Judgement
                                            Date Filed: 07/29/04
                                            Jury Demand: Plaintiff
                                            Nature of Suit: 820 Copyright
                                            Jurisdiction: Federal Question

[ Update: EFF announces JibJab / Ludlow lawsuit: http://eff.org/deeplinks/archives/001782.php ]

S.2560 (IICA/INDUCE Act) and "substantial noninfringing use"

During the recent IICA/INDUCE Act hearing, there was much discussion about the "Sony" standard concerning the copyright defense for product-makers of having substantial non-infringing use. For example, Senator Hatch stated:

Second, S. 2560 uses a proven model for structuring secondary liability. The substantial-noninfringing-use rule that Sony imported from the Patent Act coexists there alongside liability for intent to induce infringement [,] a concept that the Patent Act calls active inducement. This proven model can address cases of intent to induce infringement that were explicitly not covered or addressed by the Supreme Court in Sony.

In the above quote, I assume he means the following S.2560 paragraph:

`(3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.'.

However, I believe the recent history of such claims provides a substantive argument that he is mistaken. Remember, we've been here before, with the DMCA, in the infamous 1201(c)(1) passage (emphasis added):

* (c) Other Rights, Etc., Not Affected. -

(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

The INDUCE Act may preserve the "substantial non-infringing use" standard of _Sony_, in the same way the DMCA preserved fair-use: only as a very abstract theory, not in practice.

Let's recall what the DeCSS case ruled:

When Sony was decided, the only question was whether the manufacturers could be held liable for infringement by those who purchased equipment from them in circumstances in which there were many noninfringing uses for their equipment. But that is not the question now before this Court. The question here is whether the possibility of noninfringing fair use by someone who gains access to a protected copyrighted work through a circumvention technology distributed by the defendants saves the defendants from liability under Section 1201. But nothing in Section 1201 so suggests. By prohibiting the provision of circumvention technology, the DMCA fundamentally altered the landscape. A given device or piece of technology might have "a substantial noninfringing use, and hence be immune from attack under Sony's construction of the Copyright Act--but nonetheless still be subject to suppression under Section 1201." [FN169] Indeed, Congress explicitly noted that Section 1201 does not incorporate Sony. [FN170]

That is, the line with the DMCA, is that you're not being charged with the old infringement offense, to which one can defend via fair use. You're being charged under the all-new circumvention offense, which doesn't have that defense. But the old defense isn't affected, since if you were changed with the old offense, you could still plead that, got it? (I call this a "legal hack").

So, I think in any case under the IICA/INDUCE Act, we'd get a similar line: _Sony_ standard ("substantial-noninfringing-use")? What _Sony_ standard? That's a defense to "vicarious and contributory liability". You're not being charged with "vicarious and contributory liability". You're being charged with the brand-new INDUCTION liability. But if you were charged with "vicarious and contributory liability", you'd have a great defense under the _Sony_ standard, you betcha. But how sad for you, that you're being charged for inducing-infringement, for which that defense doesn't exist. After all, the whole reason for the new law was to create a new offense for conduct just like you're being charged with, got it?

Having seen this happen so recently, it's quite reasonable to believe it'll happen again.

Copyright Is Broken And Nobody Knows How To Fix It

[Not that this is an especially original insight, but today let's call it a classic, in the public domain even.]

So I've just listened to the IICA/INDUCE Act hearing, and been participating in the Freedom-To-Tinker discussion. For a while, I've wanted to write something about Walt Crawford's "Cites & Insights" library 'zine (not blog) Copyright special issue, which has extremely extensive discussion of recent copyright matters. After many, many pages of thoughtful (and non-echo-chamber) discussion, he finally concluded:

I believe in balanced copyright. If that sometimes results in coverage that seems to say "a curse on both your houses," that's because sometimes neither extreme makes much sense.

I kept thinking about this. Because, copyright abstractly makes no sense. By this, I don't mean something silly, not property-is-theft. Rather, I mean something deep, that the technological change has completely disrupted the extremely complex set of functional compromises that made copyright work in practice (for example, formerly being almost entirely a restriction on businesses, but now turning into a control on users and technology development).

Which brings us to the INDUCE Act. Much too much discussion basically boils down to posturing. As I've said in my DMCRA hearing impressions

It would great if everyone could just take a loyalty oath at the start and thus get beyond the endless querying about whether they believe in some sort of heretical radicalism. Something like:

"I am not now, nor have I ever been, a member of the Communist Party. I pledge allegiance to copyright, and to the intellectual property system for which it stands, one compensation, responsible, with property and profit for all."

Let's all assume we want artists to be fairly rewarded, and bad people punished. As well as peace on earth and goodwill to all. Now what?

For me, the most chilling moment of the hearing was when Hatch outright said, "Something has to be done here". The problem is that there may be no equitable solution which both preserves openness and current industry profits. Repeating that these both should be served, doesn't make it so. We have improvement in the ability to exchange information again colliding with a social regime which says information must be controlled. I'm on the openness side, but so what? Who listens to me? (except in extraordinary circumstances).

Nobody has the answer. Sorry, I sure don't :-(.

Fair Use, Copyright, and a Mike Godwin story

I'm going to endeavor to make a point concerning the recent "use it or lose it" discussions regarding making copyright and fair use determinations. I'll try to do it in a somewhat non-traditional way. Let me tell a story from my experience. Warning: this is not a pretty story. But then, neither is the prospect of being sued.

In late 1995, when I first decrypted censorware blacklists, I had the misfortune to ask one of the most then-famous net lawyers, Mike Godwin, for advice about legal issues (this was a big mistake, because of the politics of censorware-is-our-saviour, but that's another story).

The relevant point to the current discussion is that Mike Godwin had, at that time, the idea that censorware blacklists were not subject to copyright. His reasoning was, briefly, that the blacklist items were "facts", and the blacklist information itself had no copyright. I'm not breaking any confidences or revealing much of a secret here. He expressed that view repeatedly and, err, forcefully, some years later in a long mailing-list discussion. This was related to the lawsuit in 2000 against the programmers who reverse-engineered CyberPatrol (a censorware/"filtering" program), AND PUBLISHED IT (I had similarly reverse-engineered it earlier, but not published anything except a few results, and those laundered through journalists - another story/mistake, sigh). I didn't argue with him in 1995. He wouldn't have listened. Privately, however, I thought his advice was wrong. One sad implication of his views though, was that since he knew, with supreme confidence, that censorware blacklists were not copyright-able, and knew this with all the arrogance that an egotistical lawyer can muster, my disagreement with him must've been simply a reflection of my cowardly nature, or worse. How could it be otherwise?

But in 2000, the subject was a big public discussion. And, Mike Godwin was sooo confident of the rightness of his views on lack of copyright of censorware blacklists. Bear with me, I'd like to give the flavor of the absolute certainty with which this was proclaimed:

I'd happily go to court on that issue. And I'd win. Facts are facts, and are not copyrightable.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23484.html

But the fact of what is blocked is not copyrightable. It's just a list, and no deeper a list than the list of names in Feist.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23487.html

If I were to post that entire list of sites in a different order from that used by CyberPatrol, for example, I would not be a copyright infringer. It is only the particular expression of that list of URLs that is protected by the Copyright Act -- not any and all instantiations of the same information.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23522.html

I don't believe that my own [hypothetical] publication of what CyberPatrol blocks is infringing, even if I include all the sites they block, so long as I don't duplicate their precise expression of their list.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23552.html

I should add that I understand why censorware's defenders may be arguing for the more expansive view of copyright, in order to protect CyberPatrol's right to sue in copyright.

But I'm certain I'm right to argue that CyberPatrol is wrong to assert a copyright interest in the mere fact of whom they don't like.

You friends of CyberPatrol, have at me!

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23489.html

When James S. Tyre gave him some factual corrections, e.g.

"the list itself includes the blocking categories"

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23490.html

Mike Godwin responded in typical abusive fashion, even accusing James Tyre of unethical behavior (this was highly ironic, the coal-bin calling the bone-china black).

Are you making the pro-CyberPatrol argument that the blocking categories are creative expression, James?

Do your clients know you're doing this?

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23491.html

I should note he was flamed hard for this, by law professor Peter Junger

I am afraid that Mike Godwin is us reverting to his old tendency of making nonsensical arguments. ... [later] And anyway, if the lawyers for our side go into court convinced that there is no merit in the other side's arguments, then we are going to be the ducks in that barrel.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23510.html

And me, for which I make absolutely no apologies:

In terms of treatment of clients, Mike, you are a disgrace to your bar certificate. I seriously considering bringing an action against you for breach of attorney-client privilege, for your various misuses of confidential information. And it was in fact *Jim Tyre* who convinced me not to do it.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23499.html

Anyway, this "discussion" went on for quite a while, good and bad. And finally, after several distinguished lawyers who specialized in intellectual property law, and prominent authors in that legal field, all told Mike Godwin he was wrong, he conceded.

After speaking with my friend Pam Samuelson at Computers, Freedom, and Privacy here in Toronto, I've come to the conclusion that Bruce Hayden and others were right, and that I was wrong, with regard to whether Feist should be read as protecting compilations of facts based on selection alone (apart from arrangement).

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23855.html

There was pointedly no apology to several people most abused, though. Especially the programmer (me) who would have been very badly off to have relied on his wrong copyright advice earlier, in 1995. In fact, as usual, I lost reputation-points myself (yet another story). The eventual court findings were horribly against fair use and in favor of copyright claims.

Why do I go through all this? Well, the speaker here was not (just) some flamer. It was net.legend Internet lawyer Mike Godwin. And many people who said he was wrong were showered with accusation and vituperation.

I'll put the moral of the story as this:

No matter how many times a theory is repeated, that doesn't make it correct. And the people on the risk end if it's wrong have a right to doubt it. Because it'll be them being sued.

There's a lawyer joke: After being convicted at trial, a criminal defendant turns to his lawyer and asks "Where do we go from here?" The lawyer replies, "We? I go back to my office. You go to jail."

"OutFoxed" and taunting Br'er Fox

OutFoxed's saga continues, and right on schedule comes Lessig's response, the stirring statement about fair use. Now, just speculation, how do you think FOX executives, and Bill O'Reilly, might react to the following lines?

Fox claims it is "fair and balanced." Is it?

Bill O'Reilly promised Fox viewers that he would report the news of the war "without an agenda or any ideological prejudice." Did he?

It is as shameful for Fox to sue Al Franken for using "fair and balanced" as it is for Michael Moore to threaten to sue his critics for defamation. ...

And as to whether three days was enough time for Fox's legal department to respond to a question from the New York Times, come on. If its legal department can't muster a response to a simple question in three days, I'd be happy to advise Fox where it might find faster, more efficient lawyers.

My contribution to the echoing: Read Lessig's piece as a proposal for the legal arguments he'd like to make in court, if FOX will be so kind as to give him the opportunity.

"OutFoxed" and lawsuit briar patch?

OutFoxed is being thrown into the briar patch by Fox. I called it. Poke them, they jerk. See Ernest Miller's Outfoxed Rope-a-Dope Begins?

Quote the Editor and Publisher article:

In a statement handed out at the press conference by an unidentified woman, Fox News declared, "The illegal copyright infringement actions of moveon.org in cooperation with The New York Times, including 'cutting a deal' not to give Fox News Channel adequate time to react, is unprecedented." The Times, it said, in "taking orders from" a George Soros-funded Web site, "corrupts the journalistic process. This is the real story." It described Soros as "a left-wing billionaire currency speculator who funds many liberal efforts."

Now, let's note they haven't actually filed a lawsuit yet. In context, the above is pretty standard Fox trash-talk. They're not going to say "The First Amendment protected fair-use actions of ..."

But the pattern is clear. Here's my predictions on what to look for next. I don't know that this will happen, but it's what I'd watch for:

Lessig will release a stirring statement about fair use, free culture, remixing, etc. etc. Forget the blog A-list. A good portion of the media hates Fox, so they're going to run with this, and the general OutFoxed PR, for a combination of revenge against a rival, and navel-gazing blather about The Sad State Of Journalism Today. The key aspect to examine is how much the reaction seems to be saying in-your-face, you-don't-have-the-GUTS-to-sue-us. Because that'll be aimed at the executives, not the lawyers. Welcome to high-stakes litigation strategy.

"OutFoxed" and Fair-Use Strategy

OutFoxed is a documentary exposing the working of Fox News. And given its backers, it's the Daily Memo from the A-list (e.g. Dan Gillmor, Lessig).

Donna Wentworth brought up the topic of "Fair Use It or Lose It, Part II", as part of strategy. The issue are clear. As Lessig has said "Fair Use is the right to hire a lawyer". Using even the smallest clip is a legal hassle, much less a critical documentary made from them. But I was puzzled for a while as to the reason everyone seemed to be talking-up a potential lawsuit against the film, in a tone which struck me as odd. But after some thought, I believe I understood what was going on.

Now, Fox is known to be run by ultra-wealthy ranters. These people are in the enviable position of being able to ignore when their lawyers tell them they have a stupid case, and sue anyway. Their power allows them to indulge themselves both in expressing their ire (via not having to worry about consequences), and the incredible burdens of a lawsuit (via not having to worry about costs). I suspect that's how the silly "Fair And Balanced" trademark Fox News lawsuit against Al Franken came about. Let's pause for a moment to let this sink in. The vast, vast, majority of people just have to take abuse, they have no effective way to defend themselves. A very, very, few have the resources to fight back. Here, we're talking about an elite so rarefied that they can not only bring an expensive lawsuit, but do it for, basically, pleasure.

Anyway, thinking the situation through, the strategy became clear. If there's no lawsuit, well, at worst there's some publicity and promotion, both for the issues of fair use and for the film itself. But if Fox does sue - the resources of the defending the case go into both fighting the good copyfight, and an extensive broadside against the current administration (Hmm, what a twofer! I perceive the logic, I do indeed.)

Myself, I wouldn't have ever thought to suggest a serious strategy possibility of: try to get super-rich jerks to bring weak cases against lovable defendants. But that's probably just a failure of imagination on my part. If the people who would actually spend the money to fight the case think it's a good idea, I have no quarrel with it.

Hatch's Hit List

Hatch's Hit List is Ernest Miller's consciousness-raising campaign about this copywrong:

When the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) first became news it was disparagingly (and rightfully so) compared to an infamous bill from 2002, the Consumer Broadband and Digital Television Protection Act aka CBDTPA aka Hollings Bill (after the Senator who sponsored it) (INDUCE Act = Son of Hollings?). One of the most clever attacks on the CBDTPA was a little thing Ed Felten came up with on Freedom to Tinker: Fritz's Hit List. ...

So, starting today, I will endeavor to post every weekday an example of a nascent technology that can be quashed by the INDUCE Act.

I had a bit of IICA satire that I thought over-the-top, but in the spirit of cheerleading, maybe today is the place to mention it. I proclaim:

[begin satire]

The INDUCE Act violates itself! You see, by definition, quote "`intentionally induces' means intentionally aids, abets, induces, or procures ...". Well, Senator Hatch intentionally introduced the INDUCE Act didn't he? He must have known that such a proposal would cause a public outcry, that it would make copyright infringement seem cool, rebellious, romantic. And hence a reasonable person could find, on the facts available at the time, that infringement would increase. So it's a self-referential contradiction, GOTCHA!

But wait, there's more - What's that you say? This is silly, because the goal, the intent, was obviously against infringement? But, aha, that's a "substantial non-infringing use" type of argument. We've just been told that standard isn't applicable. Such an exception would swallow the rule. Anyone could plead good intentions, just like they could always work up some front about non-infringing use. No, in order to give the law teeth, we must look at the effects of the actions (not conjectured effects by the proponent, note), and whether the action itself was intended. Obviously, nobody will ever say they intended inducement itself. So Senator Hatch is hoist on his own pet lard!

[end satire]

I know, I'll keep my day job ...

Fair Use and Advocacy Strategies

Donna Wentworth at Copyfight writes "Fair Use It or Lose It" about a fair use request to Siva Vaidhyanathan:

The story in a nutshell: a professor at a Northeastern college asked Siva for permission to distribute a copy of a chapter of "Anarchist in the Library". [SF - elided, but perhaps critical, is an aspect of "to the entire incoming class"] "Of course," Siva replied, adding that [the professor] really ought not to have asked. The professor responded by forwarding to Siva a note from the college librarian, which warns firmly that "educational purpose is only one of the four determining factors, and that the courts have weighted one of them, the impact on the potential market, heavily in recent cases." Siva, horrified, runs the use of the book chapter through the four-factor test to show that the professor has a slam-dunk "case."

After thinking about it for a while, and checking a few fair use references, (particularly the book interviews case cited there), I decided Siva's analysis was probably right. But ... not so right that it couldn't reasonably be contested by an "aggressive" plaintiff. That is, I could see a publisher arguing that copying a whole chapter was too much, it'd be distributed to too many people, the book itself is quite new, digital copies even of a chapter could be hurtful to the book's market, and so on. I don't think it would be a "silly" lawsuit. A risk-averse person, or institution, would not be ridiculous to be feel they had a non-negligible chance of losing. The professor definitely wasn't wrong to ask. In fact that was the objectively right thing to do (i.e., I don't mean that in terms of morality, I mean there is enough doubt so they should indeed check about usage permission).

Note, regarding any irony of asking copyright reformers about using material, I strongly dissent from the concept that anyone should put too much stock in an author's good will or general policy advocacy. In the face of a prospective lawsuit, there is very little consolation in being able to say to a few friends, but-he's-a-hypocrite! (heck, some years ago, Mike Godwin had a habit of both arguing prominently that "Maybe libel law is obsolete", and at the exact same time, saber-rattling libel lawsuit at items which particularly offended him - and he'd happily explain why it wasn't a contradiction, why this time was different - every time!).

As to how to attack the problem, education, advocacy, assistance, reform, all are good ideas in themselves. But I'm afraid that my own experiences fighting for fair use make me even more pessimistic than Lessig.

INDUCE ACT (IICA) Talking Points From Prof. Susan Crawford

Read this: Overstatement and IICA

There are reasonable people walking on this earth who will say that the IICA is not a big deal. Rather than jump down their throats, I'm going to suggest that we slow things down, have some hearings, and try to get to the bottom of what's going on. Three kinds of arguments, all of which interrelate, are being thrown back and forth:

[N.b.: This is the about the new copywrong, a proposed "inducement" liability]

Andrew Orlowski wanted resources for "Concerned citizens looking for NRA-style talking points". The above isn't NRA-style, but definitely worthwhile.

Personal Technology Freedom Coalition

Speaking of assembling political coalitions, a "Personal Technology Freedom Coalition" has been formed to lobby for the DMCRA (a DMCA reform bill).

The Personal Technology Freedom Coalition kicked off Tuesday with a Capitol Hill press conference and support from more than two dozen organizations and companies. Supporters ranged from the United States Student Association and Consumers Union to tech giants Intel Corp., Sun Microsystems Inc. and Gateway Inc. Four major telecommunications carriers and ISPs, including Verizon Communications Inc. and BellSouth Corp., also joined the coalition.

A cynical view: Money? Money? Where are the lobbyists, I don't even see a website.

I've been thinking of this part of the DRM speech

But now we live in a world where any cipher used to fence off a copyrighted work is off-limits to that kind of feedback. That's something that a Princeton engineering prof named Ed Felten discovered when he submitted a paper to an academic conference on the failings in the Secure Digital Music Initiative, a watermarking scheme proposed by the recording industry. The RIAA responded by threatening to sue his ass if he tried it. We fought them because Ed is the kind of client that impact litigators love: unimpeachable and clean-cut and the RIAA folded. Lucky Ed. Maybe the next guy isn't so lucky.

Matter of fact, the next guy wasn't. Dmitry Skylarov is a Russian programmer who gave a talk at a hacker con in Vegas on the failings in Adobe's e-book locks. The FBI threw him in the slam for 30 days. ...

Sigh ...

Dull Righteous Mumblement

Frank Field has the best post I've seen on recent digital restrictions management discussion. Particularly this remark:

Until we assemble the political coalition necessary to get the rulemakers to listen to us, instead of the RIAA/MPAA, we aren't going to get anywhere.

Yup. That's it. Everything else being posted besides that sentence is various degrees of irrelevant. For the simple reason that we're all talking to ourselves, about why the other side should do what we say (sigh ... this is why I'll never be on the A-list ...)

Let me know when you figure out a way to do it. Beyond my skill.

As for the various debate and discussion regarding the Cory D. speech given at Microsoft concerning digital restrictions management, I'll pass. I don't need to get one of BoingBoing.Net's gatekeepers angry at me, I have problems enough with Slashdot. (and I've had enough net.god trashing of me to last a lifetime :-().

Patent Infringement INDUCEment No Excuse for INDUCE Act?

[Not an echoing of newsreports! Uncommon information!]
One justification which has been made for the newly proposed inducement-to-infringe copywrong, the (INDUCE Act), is that patent law already has an inducement provision (so, implicitly, what's the problem?). Besides the obvious difference between patent law and copyright law, it seems the patent law inducement to infringe offense may not be such a good recommendation.

I found an interesting article, in "Intellectual Property Today", MARCH, 2004, by Richard Roos :

LURKING DANGERS COMPOUNDED BY UNCERTAIN LAW

As most people know, it is a criminal offense to aid and abet the commission of a crime, the logic being that if one participates in furtherance of a crime, one is as much a criminal in the eyes of the law as whoever perpetrated the offense. However, not all companies realize that somewhat analogous scenarios exist in the patent world due to the laws of contributory infringement and inducement to infringe.

That article describes a set of pitfalls and uncertainties with patent law inducement to infringe.

Does it sound like an improvement to take this "uncertain law", expand it, and apply it widely in a fast-changing context? Am I a radical for thinking this is not a good idea?

INDUCE Act

The INDUCE act is the copywrong du jour, story from EFF / Fred von Lohmann (via Copyfight / Donna Wentworth and commentary from Susan Crawford, thanks to Copyfight / Ernest Miller)

It's bad. "Intentional Inducement of [Copyright] Infringement"???

But then, you knew that.

As a more original comment, I'll inquire regarding that it actually doesn't look like patent law. Rather, the text:

(1) In subsection (g), "intentionally induces means intentionally aids, abets, induces, counsels, procures, ...

Seems almost cut-and-pasted from http://www4.law.cornell.edu/uscode/18/2.html

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

And http://www4.law.cornell.edu/uscode/18/2.notes.html

The section as revised makes clear the legislative intent to punish as a principal not only one who directly commits an offense and one who ''aids, abets, counsels, commands, induces or procures'' another to commit an offense, but also anyone who causes the doing of an act which if done by him directly would render him guilty of an offense against the United States.

I'm not a lawyer, so I don't know where this all fits

Oh, regarding the chilling effect:

There are more examples. What of the cryptography researcher who publishes a paper or gives a lecture on the vulnerabilities of a particular type of DRM? Must Prof. Ed Felten of SDMI fame and the Freedom to Tinker fear penury?

Or a censorware researcher who wants others to be able to verify his research against companies lies and knows he won't receive any press defense (sigh ... I know, I'm not a lovable hero).

"The Information Commons" - report from Free Expression Policy Project

[This deserves more distribution that it's getting so far]

See http://www.fepproject.org/policyreports/infocommons.preview.html and http://www.brennancenter.org/presscenter/releases_2004/pressrelease_2004_0608b.html

"The Information Commons", [by Nancy Kranich], just published by the Free Expression Policy Project at the Brennan Center for Justice, is a groundbreaking report that links the vitality of 21st century democracy to the creation of online communities dedicated to producing and sharing information. A response to "digital rights management," media consolidation, and growing imbalance in the copyright system, the information commons emphasizes open access, sharing, collaboration, and communal management. The report gives an overview of the problem of enclosure, explains how theories of the commons have been adapted to the information age, and describes dozens of flourishing information communities. For the full report, see: http://www.fepproject.org/policyreports/InformationCommons.pdf or http://www.fepproject.org/policyreports/infocommons.contentsexsum.html
"

[Disclaimer: They're organizational friends, have referenced me in the past, and conceivably I might write something for them for (minimal) pay)]

Arnold Schwarzenegger Bobblehead case

Arnold Schwarzenegger Bobblehead has resulted in a legal action, where Schwarzenegger Files Suit Against Bobblehead Maker (echoed everywhere e.g. Copyfight, Lessig, Dan Gillmor)

The key aspect here seems to be a California "Right Of Publicity" law. I'm not a lawyer, but I think I've come up with a good argument for why Arnold Schwarzenegger is wrong.

The above article gives a case

Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790, 40 Cal.Rptr.2d 639 (Ct.App. 1995).

In Montana, the California Court of Appeal affirmed summary judgment against football star Joe Montana's claim that a newspaper's poster reproducing its Super Bowl cover story violated his Section 3344 and common law rights of publicity. Noting that Section 3344(d) does not require consent for use of a "name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign," the court held that 1) the posters represented newsworthy events, and 2) a newspaper has a constitutional right to promote itself by reproducing its new stories.

I think that shows how the "public affairs" exemption trumps the publicity right. One could have argued before that Montana still retained right-of-publicity control over a poster made from the event.

Now, a bobblehead doll is a caricature (not really a parody or satire). There's a long tradition of caricatures of political figures. Indeed, looking at the image of the bobble-head doll, it's definitely something that could be imagined as a reproduction of an editorial cartoon. In fact, it's one of the more political images, with the juxtaposition of Arnold Schwarzenegger in a business suit but holding a machine-gun and bullet-belt.

If it could be a newspaper editorial cartoon, and one could sell a poster of that cartoon under the California law, I would say it follows that a sculpture of that political caricature is similarly protected expression.

DMCRA hearing and points of view

Matt Rolls a Hoover has a follow-up assessment of the DMCRA hearings (remember, the confusingly-named "DMCRA", the "Digital Media Consumers' Rights Act", is the anti-DMCA). Matt collects a set of reactions, In particular, my DMCRA hearing impressions, where he summarizes:

Seth Finkelstein has his notes about the hearing at Infothought. He refers to the discussion of the DMCA rulemaking process, saying "I definitely thought I had something to say!" I thought his point of view was well represented by various panelists, including Miriam Nisbet of the American Library Association and Gigi Sohn of Public Knowledge.

Will all due respect to the fine efforts noted above, I'd like to assert it's not the same. My point of view, of how hard it was, of spending hundreds of dollars of my own money while unemployed since I couldn't get any funding support, of having to basically potentially admit liability under standard copyright, trade secret, and reverse-engineering in violation of shrink-wrap license, of making oneself a personal target - these aspects did not seem to be well-represented. And my victory turned out to ultimately be somewhat pyrrhic in its cost.

Moreover, tool-making and distribution is important in this context, so other people can reproduce and do validation, which is the essence of research. The censorware companies will just lie, and for me, there sure won't be any Slashdot story defense of "a lie about the results" (heck, I'd be lucky if there wasn't Slashdot support for attacks on me!). Perhaps that's put a bit raw, but the idea that those interests facing embarrassing exposes will lie and use legal grounds to suppress embarrassing material, should be thoroughly understood (Diebold!)

Maybe all of that is irrelevant to the focus of the hearings. But I think the fair use and technology discussions missed some important nuances.

iLaw and Me

I've been attending iLaw, the "Internet Law Program Produced by the Berkman Center for Internet and Society". I've been a having a tumultuous day.

Thanks go to John Palfrey for my being able to attend. See his iLaw week at HLS post for a listing of people who have done real-time notes and transcriptions.

The big event for me (which I'm still thinking about): Being praised for my censorware work in front of the whole audience in the day's first session. (if I had known my website was going to be on display, I'd have made some edits :-)).

But ... wow.

Donna Wentworth has the best transcript I've seen:

Larry: That's like a list of banned books...can I see the list?

JZ: As Seth Finkelstein -- who is here -- can tell you, no. He tried to find out.

Larry: He spends his life on the phone asking questions?

JZ: No, they don't take his calls anymore. [Laugh.]

[Demos how you can't see Seth's site w/censorware on; Seth has been censored.]

(and more)

Thanks.

iLaw and Me

I've been attending iLaw, the "Internet Law Program Produced by the Berkman Center for Internet and Society". I've been a having a tumultuous day.

Thanks go to John Palfrey for my being able to attend. See his iLaw week at HLS post for a listing of people who have done real-time notes and transcriptions.

The big event for me (which I'm still thinking about): Being praised for my censorware work in front of the whole audience in the day's first session. (if I had known my website was going to be on display, I'd have made some edits :-)).

But ... wow.

Donna Wentworth has the best transcript I've seen:

Larry: That's like a list of banned books...can I see the list?

JZ: As Seth Finkelstein -- who is here -- can tell you, no. He tried to find out.

Larry: He spends his life on the phone asking questions?

JZ: No, they don't take his calls anymore. [Laugh.]

[Demos how you can't see Seth's site w/censorware on; Seth has been censored.]

(and more)

Thanks.

DMCRA hearing impressions

I've been listening to the DMCRA hearing, having it playing in the background like radio, via webcast, as I do other things (some people listen to Howard Stern, some to NPR ... I'm listening to "The Digital Media Consumers' Rights Act" hearing - isn't the Internet great?). Note thus the following is meant to be impressionistic, rather than journalistic. I was not taking notes, nor listening with rapt attention.

It would great if everyone could just take a loyalty oath at the start and thus get beyond the endless querying about whether they believe in some sort of heretical radicalism. Something like:

"I am not now, nor have I ever been, a member of the Communist Party. I pledge allegiance to copyright, and to the intellectual property system for which it stands, one compensation, responsible, with property and profit for all."

That is, one deep issue is the conflict between the controls sought by the industry, and the effects those controls have in terms of inhibiting fair use in practice. This is a complicated problem. And it's a waste of time to go around "Are you some sort of Commie?" (paraphrased, not literal) all the time.

Lessig vs. Valenti is like a cage-match :-). Lessig makes a great case to my ears, and I'll join the cheering section here (2-4-6-8, who's net copy-great, Lessig!). I'm not sure how well it goes over with those not already in the choir, though. Quite a few of the hearing audience seemed to me to be willing to grant the industry the benefit of any doubt. Strategically, fighting "pirates" with "fair use" seems unbalanced (hence the search for the "loveable hero")

Robert Moore, of 321 Studios, was surprising strong and good in his testimony. He did an excellent job of fielding many hostile questions well.

The MPAA and RIAA people don't like techs - they complain much about Hacking! Hacking! Hacking!

I'm biased, but I think technologists have something to say here. For example, Jack Valenti (mis)quoted Ed Felten. Even if this hearing was only about consumer issues, a prominent subject was whether it was possible to make usage restriction technology which somehow only permitted fair use. And what wins if that couldn't be done.

I'm really biased, but when they discussed whether or not fair use was being served by the Library of Congress Rulemaking about DMCA Exemptions, I definitely thought I had something to say!

Listening to these hearing is probably bad for me. It's always a tug to do more net-activism. Except that'll likely kill me, at least metaphorically, and probably literally, from stress.

[Update: Recommendation: See Matt Rolls a Hoover for hearing notes, excellent unpaid, I mean "citizen", journalism (thanks Derek)]

DMCRA hearing witness list available now

[Breaking news! Citizen journalism! Original reporting! You heard it here first (all dozen readers or so ... see previous DMCRA hearing entry about coverage)]

[Remember, DMCRA, the "Digital Media Consumers' Rights Act", is the anti-DMCA]

The witness list, that is, the people who will be testifying in the hearing, is now available, at http://energycommerce.house.gov/108/Hearings/05122004hearing1265/hearing.htm

It's an impressive line-up (more than a dozen panelists):

Lawrence Lessig, Jack Valenti (MPAA), Cary Sherman (RIAA), and more.

Witness statements aren't available there yet, but the Lessig DMCRA testimony is posted on his site.

[And if anyone is wondering, I didn't even try to be a witness here. It's above my status level, and there would be no support for me to do it anyway. Though deep down, as a person "primary responsible" for a DMCA exemption, I do think that I would have something to say.]

Links - 1) DMCRA hearing 2) WIPO Broadcasting Treaty

1) If you're following the DM*C*RA ( "DMCRA", the anti-DMCA) upcoming May 12 hearings, I haven't seen mention of the following important page:

Hearing - H.R. 107, The Digital Media Consumers' Rights Act of 2003
http://energycommerce.house.gov/108/Hearings/05122004hearing1265/hearing.htm

I actually called them up to try to find out more information, for some complicated reasons, and had a very small adventure in "unpaid", I mean "citizen", journalism. (Them: "Who are you with?" Me: "The Infothought blog" - that actually worked, or at least, if they were sneering, they kept it out of their voice). But no info. (it might have worth developing something if I were a "paid", I mean "not citizen", journalist. But I'm not).

2) David Tannenbaum Coordinator of the Union for the Public Domain wrote me:

I am a fan of your work, and am writing in my capacity as coordinator of Union for the Public Domain. We are a non-profit organization dedicated to protecting the public domain from threats like the WIPO Broadcasting Treaty which is about to be negotiated. If you think it is worth drawing attention to it, I was hoping that you might give the treaty a mention on your blog. ...

One of the big hurdles we face in trying to change treaties like this one is that we don't actually know where governments stand on the various provisions, until very late in the game. That's been even more true for this treaty because it so much out of the public eye.

We're trying to overcome that this time by distributing a survey that we hope volunteers will administer to their country representatives. We will then post the results on our web site.

Is there any chance you would be able to give this a mention on your blog and maybe even a link to the survey? http://www.public-domain.org/?q=node/view/30

Mentioned, linked. And for more links, he supplies:

P.S. For more information on the details of the treaty see Ernest Miller's excellent article at
http://www.corante.com/importance/archives/002925.html,
and Edward Felten's sharp analysis at
http://www.freedom-to-tinker.com/archives/000571.html.

Cites & Insights - special "Broadcast Flag" edition

Walt Crawford has a special "Broadcast Flag" edition of his library 'zine (not blog) "Cites & Insights":

On November 4, 2003, the Federal Communications Commission (FCC) adopted a Report and Order and Further Notice of Proposed Rulemaking in the Matter of: Digital Broadcast Content Protection, MB Docket 02230. In English, the FCC adopted the Broadcast Flag. You can find the lengthy report (72 pages single-spaced, plus four appendices) on the web. This commentary may be long but it's far from comprehensive--and certainly not final, since the rulemaking is only a first step. My aim here is to provide a reasonable sampling of background, direct documents, and apparent consequences--and to give you some reason to believe that librarians, and those concerned with the future of digital technology in the U.S., should be concerned about the Broadcast Flag and its implications.

All worth reading, and recommended. I've not been much involved in that battle, though I've mentioned some "Broadcast Flag" strategies.

I do have one note of commentary (emphasis mine):

Paragraph 41 is also interesting as it cites limits within DMCA: nothing in this section shall require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the provisions... In other words, DMCA doesn't require new technological measures. Does that call into question the FCC's ability to impose such measures? Not according to the FCC: They limit the significance of the emphasized section to one subsection of DMCA, and deem it as not in any way limiting the FCC from imposing such requirements.

Well, sadly, basically, the FCC is right on this point (in my nonlawyer but DMCA studied view). The DMCA does not require a broadcast flag. But there's no pre-emption or affirmative limit there. That is, even though the DMCA doesn't mandate it, some other law or regulation could give the FCC the power to impose this, and that would not be a conflict. That's what the FCC is saying.

The FCC's claim to have authority over equipment-makers strikes me as broad, but there might actually be some precedent for it. But even if so, it would be on a very different basis from the DMCA.

Shorenstein, "Big Media ... Bloggers", commenting on fair-use vs content

Jay Rosen has an interesting post "The Legend of Trent Lott and the Weblogs" discussing the Shorenstein Center report "Big Media" Meets the "Bloggers" (and one post of mine is mentioned at the end collection - thanks much, am I blog-royalty yet?). I think I should comment at length about one particular sentence:

The Harvard study has gotten notice in Blogistan, but its stingy formatting (the pdf is encrypted and won't allow you to cut and paste) has been discussed in greater depth than the story it tells, perhaps because we think the events are well known.

That's because, recursively, the A-list hasn't been pushing it 1/2 :-). But with regard to myself, I thought I had a much higher chance of someone, somewhere, actually caring about what I had to say concerning the encryption/fair-use formatting aspect, than Yet More Punditry About Pundit Pack Propoundings.

I mean, what I wrote about "the pdf is encrypted and won't allow you to cut and paste" might realistically hope to affect the world in some small way, since I do have some small measure of expertise and status regarding the DMCA. But on the press topic itself, I'm just part of the "bunch of people ranting away on the Internet, which is nothing new".

321 Studios v MGM, DMCA, fair use, and the _Eldred_ pony-hunt

Last year, there was a DMCA / fair use "pony hunt" to find a way to argue that a sentence in the Eldred decision would undo the legal hack where the DMCA hacks-away fair use. Unfortunately, we are still left with a pile of manure: (my emphasis below)

http://www.eff.org/IP/DMCA/MGM_v_321Studios/20040219_Order.pdf

"This Court concludes that the challenged portions of the DCMA do not unconstitutionally burden the fair use rights of users of the copyrighted material. In reaching this result, the Court rejects as too sweeping plaintiff's claim that such users have a First Amendment right to make fair use of copyrighted works based on Eldred v. Ashcroft, 123 S. Ct. 769 (2003). The Eldred case stated that "in addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations . . . the `fair use' defense allows the public to use not only facts and ideas contained in a copyrighted work, but also the expression itself in certain circumstances." Eldred, 123 S. Ct. at 788-89. However, the Court went on to state: "[t]he First Amendment securely protects the freedom to make ­ or decline to make ­ one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them." Id. at 789. While the Court further declared that copyrights are not immune from challenges under the First Amendment, it is a stretch to claim that Eldred mandated absolute First Amendment protection for fair use of copyrighted works. As the First Amendment bears "less heavily" in situations such as this, this Court determines that the burdens concededly imposed by the DMCA do not unconstitutionally impinge fair use rights. Although not all content on DVDs may be available in other forms, plaintiffs have conceded that it is possible to copy the content in other ways than in an exact DVD copy. This Court agrees with this analysis in Corley: We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. . ."

321 Studios (DVD-X COPY) loses (badly!) DMCA legal ruling

321 Studios, the makers of DVD backup program DVD-X COPY, have lost (and lost big) in a legal decision.

http:/ /www.eff.org/IP/DMCA/MGM_v_321Studios/20040220_eff_pr.php

Court Endorses Ban on DVD Copy Technology

Electronic Frontier Foundation Urges Digital Copyright Law Reform

San Francisco - Consumers suffered a setback to their digital rights today when a California federal court sided with the major motion picture studios in ruling that a company creating tools people can use to make backup copies of their DVDs is liable under copyright law. Citing the Digital Millennium Copyright Act (DMCA), the court ordered 321 Studios, creator of DVD backup tools, to stop selling its DVD Copy Plus and DVD-X COPY products within seven days. 321 Studios is likely to appeal the ruling.

[Source material at:
http://www.eff.org/IP/DMC A/MGM_v_321Studios/
http:// www.eff.org/IP/DMCA/MGM_v_321Studios/20040219_Order.pdf

Read it and weep, folks. In the Order, every single geek argument is slammed, and slammed hard. In particular:

"This Court finds, as did both the Corley and Elcom courts, that legal downstream use of the copyrighted material by customers is not a defense to the software manufacturer's violation of the provisions of - 1201 (b)(1)."

Fair Use is no defense to the DMCA tools provision, sayeth this Court.]

Seth Schoen - The History of the DeCSS Haiku

Highly recommended:

The History of the DeCSS Haiku
http://www.loyalty.org/~schoen/haiku.html

I wrote the poem known as the "DeCSS Haiku" three years ago, in 2001.
...
Impressed by other people's contributions to the rapidly-growing gallery, I decided I had to make some kind of effort of my own.

Some quick observations:

An observer might be shocked to compare the Bernstein and Corley cases. She would perceive that the courts have concluded that it's wrong to censor software in the name of preventing terrorism, but it's all right when what's at stake is the ability to copy movies.

Well, yes. Because terrorism is about politics, but copying movies is about money. Just like it's 100.0% First Amendment protected to advocate bona-fide Nazi-ism (I mean real bring-back-the-Third-Reich, not hyperbole), but if you give your friends copies of a few some favorite songs, that can literally be a criminal offense.

Meanwhile, serious problems with the DMCA go unaddressed, and the traditional legal status of reverse engineering is under attack. Public opinion is not rising to defend it; since I wrote the DeCSS Haiku, property rhetoric has continued to its success in making people "brand / tinkerers as thieves". We are not communicating effectively, even though so many of our best cultural traditions are on our side.

Right on. Tell me about it. We aren't communicating effectively in part because too many people (present company excepted!) think talking among themselves is the epitome of political activism, and someone else will do the hard work. But I hardly have a solution.

Cites & Insights - February 2004

Walt Crawford's library 'zine (not blog) "Cites & Insights" has come out with the February 2004 issue, just a short time after the extensive Midwinter 2004 edition (which I mentioned earlier). It's an amazing amount of writing, covering a wide range of material: Early vs. late adopter psychology, equipment reviews and PC benchmarks, articles about Google and portals, copyright and compulsory licensing, and more. Part of the "more" is reactions to the previous issue, and I figure in there (links mine, and my emphasis added to the last statement below):

Seth Finkelstein, January 7

Finkelstein also makes me nervous by calling the Glossary Special a "handbook/reference/scorecard for the players and controversies in these topics." His direct note covered more ground:

COPA isn't really a predecessor to CIPA; it has a very different history and is a criminal law rather than a funding-based mandate. COPA is a direct successor to CDA, the Communications Decency Act. He's right, of course: I was thinking of it as a predecessor in Congress' ongoing attempts to censor the Internet.

"Harmful to children" in one definition was simply wrong--"harmful to minors" is the right phrase, and as I've noted at some length, 16-year-olds are not "children" in any meaningful sense. As Finkelstein notes, "Under CIPA, a 16-year-old might be prevented from researching sexual material to the sex he's already having!"

Finkelstein is dubious about my assertion that the Supreme Court "gutted [CIPA] for adults." "Whatever the justices expect in theory tends to be a world away from practice." That's true, and an important nuance.

Finkelstein would have liked a stronger statement about the problems in censorware research. I failed to say that the Censorware Project website was hijacked by another participant, but I don't doubt Finkelstein's historical record (readily available at his website). He's right: "Hijacking the Censorware Project website is wrong. It's utterly reprehensible." To the extent that I trivialized that, my apologies. Sometimes I'm too nonconfrontational for my own good, or for the good of those who do important work.

Thank you.

DVD DeCSS trade-secret case withdrawn

Today's big tech civil-liberties news is that the Bunner DVD trade-secret case, that is, about whether posting DeCSS violated trade-secret law, has been dropped at the request of the industry. After four years of litigation. See, for example, the EFF report.

This is a good thing. Victories are few and far between, and this was one. However ... it's also important to realize it's only one of many legal grounds, and there are many others. Way down, in the ZDNET report is the critical analysis:

The ruling in the Corley [DMCA] case ultimately made the California case redundant, since the code was already illegal to distribute, attorneys said. If it had pursued its case further, the DVD CCA would have also risked prompting a ruling against it, since the California Supreme Court had expressed skepticism in its last ruling that there were any trade secrets to protect.

In its statement Thursday, the DVD CCA said it will pursue other avenues in protecting its code, including possibly filing patent infringement suits. It also said several outstanding Hollywood cases against commercial publishers that offer DVD-copying software will help protect its rights.

Cites & Insights Midwinter 2004

Walt Crawford's library 'zine (not blog) "Cites & Insights" has a very special issue in the Midwinter 2004 edition. It's a veritable guide for the perplexed, defining frequent references which appear in the publication. Well worth saving, as a handbook/reference/scorecard for the players and controversies in these topics. I even have an entry to myself:

Finkelstein, Seth
A consulting programmer and censorware activist and researcher; you'll find lots more at sethf.com, including Finkelstein's own weblog. Cites & Insights uses "censorware" rather than "filters" after reading and considering Finkelstein's arguments. He has provided valuable research results on how censorware actually works. He's also gotten into trouble in various ways, including interpersonal issues with other people in the censorware-research field (I wasn't there, I don't know the whole story) and various threats of legal action from censorware companies. Finkelstein was primarily responsible for the renewed DMCA exemption for decrypting censorware banned-site lists--but, given a lack of institutional backing and the constant threat of legal action, he's apparently dropping out of active research in that field. (Also one of the most active Cites & Insights correspondents, whose acute analysis frequently exposes my sloppy thinking and writing.)

Jon Johansen acquittal upheld!

Jon Johansen has been acquitted again! (link credit - Lessig )

A panel of judges Monday cast aside the appeal that prosecutors had filed to a lower court decision handed down in January. That means the lower court's decision will stand, at least until another eventual appeal takes the case to Norway's supreme court.

The lower court had ruled that Johansen, now 20, did nothing illegal when he helped crack DVD copy protection codes in 1999 and then publicized how he did it. The prosecution had sought a suspended jail term, confiscation of his computer equipment and a fine of NOK 20,000 (less than USD 3,000).

This is great news. A win is always great news. It would have been very bad news if he had lost.

HOWEVER ...

This is NOT quite so great news as people will think, for two reasons:

1) Contrary to myth, Jon Johansen's DeCSS work wasn't the reverse-engineering of CSS. That part of the creation of DeCSS was done by an anonymous German.

2) With new more DMCA-type laws being proposed and passed all the time, being found innocent here, does not mean the next programmer charged, will be found innocent. That is, they'll just change the law. See my old post on Grokster, Streamcast copyright win, vs. LaMacchia case

Again, victory is good. But let's keep in mind what's been won - and what hasn't!

Broadcast Flag - more strategies for fighting it with Open Source

More from the depths of the FCC ruling on the Broadcast Flag, from a partial dissent to the ruling. Note what arguments have a foundation of support, and where there's an opportunity to play to those issues (emphasis mine):

STATEMENT OF COMMISSIONER MICHAEL J. COPPS APPROVING IN PART, DISSENTING IN PART

We must remain vigilant during the interim procedures established today and work expeditiously to develop a longer term process that includes clear technical criteria with a transparent road to approval. That is one of the principal purposes of the Further Notice that we approve today. As we move forward, we must also be careful not to chill development of software solutions generally, particularly for beneficial purposes such as software defined radio ...

But I must dissent in part because I believe that we fail to protect consumer interests in important parts of the decision. I dissent in part, first, because the Commission does not preclude the use of the flag for news or for content that is already in the public domain. This means that even broadcasts of government meetings could be locked behind the flag. Broadcasters are given the right to use the public's airwaves in return for serving their communities. The widest possible dissemination of news and information serves the best interests of the community. We should therefore be promoting the widest possible dissemination of news and information consistent, of course, with the copyright laws.

Software and public domain. That seems to be the key.

Broadcast Flag - fighting it with Open Source

Down deep in the FCC ruling on the Broadcast Flag is the key to effective tech fighting of it (my emphasis):

VI. FURTHER NOTICE OF PROPOSED RULEMAKING

Although we believe that our adoption of a flag-based redistribution control system for digital broadcast television will further the digital transition and ensure the continued flow of high value content to broadcast outlets, further comment is needed on several issues. ...

In response to our Notice of Proposed Rulemaking, EFF questioned the impact of a flag based regime on innovations in software demodulators and other DTV open source software applications.138 The Commission has actively promoted the development of software defined radio and other software demodulators as important innovations in the digital age.139 We seek further comment on the interplay between a flag redistribution control system and the development of open source software applications, including software demodulators, for digital broadcast television.

This is the wedge which can be used to throw a monkey-wrench into the works (forgive that sentence). Or at least try.

Broadcast Flag - desecration

"Do not remove this flag under penalty of law"

The Broadcast Flag is now law, per the FCC ruling. It's the DMCA-type deep copyright issues all over again.

Can't have fair use in practice - as a functional matter, not a legal defense - because no prison can have a gap in the walls. Can't make distinctions between various types of content - e.g. entertainment versus a political speech - since those are intellectual differences, not technological ones. On and on.

As I skimmed through the ruling, I noted that contrary to beloved techie myth, everyone involved is not stupid:

We recognize the concerns of commenters regarding potential vulnerabilities in a flag-based protection system. We are equally mindful of the fact that it is difficult if not impossible to construct a content protection scheme that is impervious to attack or circumvention. We believe, however, that the benefits achieved by creation of a flag-based system creating a "speed bump" mechanism to prevent indiscriminate redistribution of broadcast content and ensure the continued availability of high value content to broadcast outlets ­ outweighs the potential vulnerabilities cited by commenters.

[Later]

We also recognize that with any content protection system, the potential exists that some individuals may attempt to circumvent the protection technology. We do not believe, however, that individual acts of circumvention necessarily undermine the value or integrity of an entire content protection system. The DVD example is instructive in this regard. Although the CSS copy protection system for DVDs has been "hacked" and circumvention software is available on the Internet, DVDs remain a viable distribution platform for content owners.46 The CSS content protection system serves as an adequate "speed bump" for most consumers, allowing the continued flow of content to the DVD platform. We believe the same rationale applies here.

On Diebold: The DMCA Is An Anti-Freedom-Of-Information-Act

Inspired by all that's been going on with the Diebold Election Systems / Swarthmore story today, such as NYT: File Sharing Pits Copyright Against Free Speech, and Online Policy Group v. Diebold case archive:

People are told to think of the DMCA as an "anti-piracy" law. It's supposed to stop copyright infringement. But in terms of implications, the DMCA is an anti-freedom-of-information-act. It's turned into an all-purpose gag-order tool. The reason is stated to be infringement - but it's very easy for that reason to turn into an excuse. This is the exact same phenomena as when material is improperly classified as "secret". The ostensible reason is protecting national security, but too often in reality it's hiding government incompetence or corruption. Except that now, "copyright infringement" works much better in certain contexts than "national security".

Consider this - the process of voting is perhaps the most fundamental aspect of a functioning democracy. And yet, we're expected to accept that we are not permitted to check and monitor the mechanics by which the votes are being counted. It's "secret balloting", in a very negative sense! Rather than control the votes, it's control of the vote-counting machines.

My letter to Swarthmore supporting fight against Diebold

[I sent this just now. Maybe it'll do some good. I tried to address the legal risk problem as I see it]

October 25, 2003

Dear Dean Robert Gross

I wish to write in support of the students hosting the Diebold memos, and to argue against your reported statement that the position of Swarthmore College is "We can't get out in front in this fight against Diebold". I would be flattered to be ranked among the "tech celebrities" sending letters. I was awarded a 2001 Pioneer Award by the Electronic Frontier Foundation, for my decryptions of censorware in the service of civil-liberties.

I will attempt to construct an argument with more depth than mere exhortation or preaching. My reading of the situation is that Swarthmore feels chilled by the possible legal liability. I recognize it is no help to volunteer other people, to say to fight to the last drop of someone's else blood. In fact, I've been driven to quit my own research into censorware systems because I simply could not get the necessary legal and press backing to balance the tremendous risk of lawsuits. So I know whereof I speak, and do not write lightly.

Yet I would say that Swarthmore, as an educational institution, is in fact extremely well-positioned to fight against Diebold. Though I'm not a lawyer, I'd claim that courts are generally extremely well-disposed to colleges in a situation such as this. The public interest and educational purpose aspect weigh very heavily, formally in a fair use copyright defense, and also informally in terms of making for a sympathetic presentation.

And Diebold does not appear to be in a particularly strong position. They might be able to crush any particular individual through simple attrition tactics, but an educational institution is another matter. The material at issue is extremely embarrassing to them, building on security problems which have been revealed in their system. They've had much bad publicity in the past, and are receiving more bad publicity now. They come off like Nixonian thugs trying to suppress their version of the "Pentagon Papers".

My own censorware research exposed a reality of products far inferior to their manufacturer's absurd marketing claims. When the very mechanism of democracy (voting) is at stake, exposing how the product works - or more importantly, doesn't work - is profoundly important.

Again, I deeply respect the reasons of anyone who does not want to endure being sued. But I hope my missive can add some strategic assessment to offset chilling effect.

Sincerely

Seth Finkelstein
Programmer, EFF Pioneer Award Winner, and civil-libertarian activist
http://sethf.com/

Diebold memos and linking prohibitions at Swarthmore

Ed Felten writes:

Ernest Miller reports that Swarthmore now is yanking the Net connections of students who linking to a page that links to a page containing the infamous Diebold memos.

In discussing these issues, it's instructive to review the discussion of the prohibitions against linking in the Reimerdes (DeCSS) case (my emphasis below). Key part:

This isn't a court case yet, but the same sort of thinking applies.

"The other concern--that a liability based on a link to another site simply because the other site happened to contain DeCSS or some other circumvention technology in the midst of other perfectly appropriate content could be overkill--also is readily dealt with. The offense under the DMCA is offering, providing or otherwise trafficking in circumvention technology. An essential ingredient, as explained above, is a desire to bring about the dissemination. Hence, a strong requirement of that forbidden purpose is an essential prerequisite to any liability for linking."

"Accordingly, there may be no injunction against, nor liability for, linking to a site containing circumvention technology, the offering of which is unlawful under the DMCA, absent clear and convincing evidence that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology. [FN257] Such a standard will limit the fear of liability on the part of web site operators just as the New York Times standard gives the press great comfort in publishing all sorts of material that would have been actionable at common law, even in the face of flat denials by the subjects of their stories. And it will not subject web site operators to liability for linking to a site containing proscribed technology where the link exists for purposes other than dissemination of that technology."

"FN257. In evaluating purpose, courts will look at all relevant circumstances. Sites that advertise their links as means of getting DeCSS presumably will be found to have created the links for the purpose of disseminating the program. Similarly, a site that deep links to a page containing only DeCSS located on a site that contains a broad range of other content, all other things being equal, would more likely be found to have linked for the purpose of disseminating DeCSS than if it merely links to the home page of the linked-to site."

Diebold Election Systems memos, DMCA, and copyright infringement

The Diebold Election Systems memos, describing problems with their vote-counting machines, are being mirrored by Swarthmore student groups. The administration is apparently cutting-off network access to students mirroring the memos.

Edward Felten asks

Here is my question for the lawyers: Is this really copyright infringement? ... But don't the students have some kind of fair use argument?

I'm not a lawyer, and I don't play one, but I do hopefully have some insights.

The key aspect is that the take-down provision of the DMCA is an automatic escape from liability, whether or not the posting at issue is really copyright infringement. It's a situation of "shoot first and asks questions (or have defenses) later". The law says that if there's the immediate take-down on notice, there's no liability. If there isn't an immediate take-down, well then, do you feel lucky in court? So the obvious incentive is to err on the side of taking down. Or, in legalese (my emphasis):

(1) No liability for taking down generally. -

Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

Now, there's an open issue here of what the take-down provisions mean when people starting doing whack-a-mole. My guess is that the university is afraid that if they have "actual knowledge" that students are using this strategy, that a court may then believe in this situation that requiring endless specific notices of whackery is too much game-playing. The university could be scared a court may look to some concept of total knowledge, not compliance per-mole. And definitely not want to be a test case on the matter. All in all, again, though I'm not a lawyer, it doesn't seem like that unreasonable a thought.

DMCA, watch what you say, or have hell to pay ...

Update: Aaron Swartz asked about counter-notification. I strongly suspect that will be the next act in this drama. But it has to be done carefully, since it's under penalty of perjury. The more I think about it, the more I believe the issue driving Swarthmore's conduct is that it is trying to avoid being the deep-pocked defendant in an upcoming lawsuit.

Note Ernest Miller has new reporting on link-banning.

IP Justice White Paper on Treaty Intellectual Property Implications

I'll echo the below to add to the protest. It think it's important to grasp that the world is not in fact evolving to a Libertopian Cryptoanarachy. Rather, it's becoming a multinational treaty-based system. Remember, we got the DMCA earlier supposedly from obligations (or excuse) of a treaty.

IP Justice has published a White Paper that analyzes key section of the Free Trade Area of the Americas (FTAA) Treaty chapter on intellectual property rights. According the IP Justice report "FTAA: A Threat to Freedom and Free Trade," the Treaty would require all 34 FTAA countries in the Western Hemisphere to send P2P file-sharers to prison. The FTAA Treaty also contains 'DMCA-like' anti-circumvention laws. IP Justice sponsored a petition calling upon the FTAA Treaty negotiators to delete the entire chapter on intellectual property rights from the FTAA Treaty. FTAA Treaty negotiators meet in Miami from Nov. 16-21, 2003, and if passed, the treaty will take effect in 2005 and govern the lives of 800 million citizens of the Americas.
Sign the petition!

The Copyright Elephant (and EFF)

Derek Slater has been discussing fallout from the conference Digital Media in Cyberspace and taking a little flack over associated questions regarding EFF's recent stances.

To mangle some famous phrasing:

"Derek, I knew "bad faith", I worked with "bad faith", "bad faith" was a friend of mine. Here, this is not "bad faith"..."

If you want to see what "bad faith" looks like, take a look at an old analysis of the censorware wars and Mike Godwin's tactics back then ("Sometimes they deliberately and calculatedly lie. Period. ... there may be tactical advantages in smearing your opponents so." - I didn't write that, and though it's from someone who is mentioned unfavorably in my blog these days, it's still a good essay). But I'm posting this to point out, that's what "bad faith" looks like - a lying, bullying, campaign. To echo a bit, I'm writing this to make clear - there have been bad-faith dealings on issues in the past, but these difficulties now aren't anywhere close.

Note all the above was from the old, more corporate-oriented, EFF, under Esther Dyson and Lori Fena. EFF's under new management as of a few years ago, under the far more civil-libertarian focused Shari Steele, and even gave me a treasured apology for the bad-faith dealings above.

Now, with that as background, the problem here is as follows: There's an elephant in the room, in that preserving copyright in anything close to its current form, seems to require draconian measures. I don't say it can or can't be done - but to do it, we're getting laws such as the DMCA, "spampoenas", lawsuits to strike fear into the hearts of file-shares everywhere, and so on.

There's no way out of this that fits in a press release. It's not clear if there even is a way out of this, which leads to a pundit-party of prodigious proportions. It's all about what do we do with the elephant? There's a path which starts out saying, "Don't put the elephant in with the tech-types (broadcast flag, etc.) - it should be wrangled by lawyers". Then "But wait, the lawyers are letting the elephant stampede, they shouldn't do that". And "Hey, it's not so gentle when one is dealing with an enraged bull elephant".

There are also a few blatherers talking about what a wonderful opportunity we have now in the evolution of Loxodonta<->Sapiens networking. A circus generally has some spectacle which is good filler-fodder, after all.

But all we're seeing here, is that EFF is not able to make that elephant go away, and is struggling like everyone else over where best to put it.

"Copyright and Free Expression" updated report from FEPP

There's a great new updated report released from Free Expression Policy Project:

Copyright and Free Expression

FEPP's just published, revised and updated summary of the major controversies - what you need to know about how copyright today threatens intellectual freedom.

I'm acknowledged as one of the people giving feedback on the first edition of this report. And mentioned in the DMCA censorware research section:

Yet few free-expression issues today are more sweeping in their implications than censorship caused by Internet filters as they block art, information, and ideas that their corporate manufacturers decide are inappropriate, or that their keyword-based programs mistakenly target. As another activist, Seth Finkelstein, put it, "independent investigation of the snake oil claims" of filtering companies has now become "fraught with legal peril."

I've written much since the time of that quote, e.g.:

http://sethf.com/anticensorware/hearing_dc.php
http://sethf.com/anticensorware/legal/dmcacom.php
http://sethf.com/anticensorware/legal/dmcacom2.php
http://sethf.com/anticensorware/legal/dmcacom3.php

Admittedly, most of the section is about the case Edelman v. N2H2. Recall, the irony is, I actually have circumvented the encryption of the N2H2/BESS blacklist, with research I can't publish due to lawsuit chilling effects, and I can't get a backer (and in practice, nobody will hear either). As FEPP notes:

But the underlying reason for dismissing the case may have been the judge's lack of sympathy with Edelman's claim.

Exactly. This is why the attacks on me have been so harmful, because they have the potential to affect how I'd be viewed by a judge. And I just can't ignore that (nor can potential backers).

RIAA "Clean Slate" Amnesty - fishing expedition for targeting lawsuits?

As the RIAA starts lawsuits, their "Clean Slate" amnesty program is obviously receiving much attention. Just what sort of trouble can one expect from admitting to copyright infringements? (the RIAA can't stop lawsuits from other copyright owners such as the MPAA, nor the government, etc. - see e.g. postings at bIPlog and Freedom To Tinker)

The RIAA's description says:

OUR PRIVACY POLICY Information provided on the Clean Slate Program Affidavit will be used solely in connection with conducting and enforcing the Clean Slate Program. Information will not be used for marketing, promotional or public relations purposes. Information will not be made public or given to third parties, including individual copyright owners, except if necessary to enforce a participant's violation of the pledges set forth in the Affidavit or otherwise required by law.

But those who followed the story of TrustE know that privacy polices are slippery things. And besides, who is going to sue the RIAA if they wiggle on the meaning of "conducting and enforcing"?

Now, this certainly could be a way of entrapping people, given that "Clean Slate" affidavit signers are then liable for wilful infringement.

But large-scale infringers aren't going to rely on such a promised "amnesty". Perhaps the idea is that it's a way to get leads from scared "little fish" to go after "big fish" ("... tell us who your connection is, boyo, and you can walk ...").

That is, if the RIAA gets a large collection of applications from one particular location, that would seem to indicate there's good lawsuit-hunting in that area, with plenty of other fish who can be fried. The amnesty-seekers then act as quasi-informants. Perhaps explicit informants, if they're then interrogated to "verify" details of what they've submitted ("We're not prosecuting you, we're just checking up to make sure you told the truth, there's severe penalties if you lied ...")

And the most immediate use of the affidavits is as PR-fodder, i.e., "X pirates have admitted to crimes against copyright. The problem is worse than anyone thought!". This segues well into future prosecutions.

Quasi-Valenti-ism: "This amnesty is to the RIAA as UN Security Resolutions were to Saddam Hussein"

Peter Davies, Felten, DMCA liability

John Palfrey has some interesting reports about the goings-on at the Oxford Internet Institute. I found the following report of particular interest:

Second session: Peter Davies, an very impressive ex-industry lawyer who's a fellow here at OII, reviewed the Felten case. He made the very good point that IP issues have become dominated by more hyperbole than serious debate. Mr Davies and I disagreed, however, about the impact of the DMCA anti-circumvention on research. There have been multiple research projects that we've decided not to pursue or to publish, despite our belief that the information would be useful, because of our fear that the method of garnering the information could expose us to DMCA liability. The counter-point: that we wouldn't really get sued and that there's not so much to be worried about. Maybe so.

I've seen this argument many times. In fact, it's a good example of what I just discussed as stage one of the three stages of a free-speech lawsuit - "You won't get sued". For how I tend to reply, see my old blog entry about the "chicken little" copyright argument:

I have a standard offer for lawyers who write things such as the "chicken littles" paragraph above. I say: Since, according to you, there is no risk, well then, there should be no problem at all for you to agree to represent me pro bono for any relevant charges arising from my censorware work. No risk, right? So there's no risk in your making such agreement, right? Here's how you can show you believe it yourself, when there's a risk to you!

I have yet to find a lawyer, who makes derisive comments like that quoted remark, who will then take me up on that offer. ...

I was going to segue into one of my stories about lawyers telling me there was no risk to something, when it suited their advocacy position. But a quick search turned up the Peter Davies IP paper! (I love the Internet, this is why I spent so much effort in my life to try to keep it free and open). The key passage is:

I find this David and Goliath picture somewhat unconvincing because, as I said, it was Professor Felten who sued the Record industry and not the other way around, secondly there are clear exceptions permitting use of works for educational and research purposes, and thirdly, a few minutes' research on the Internet into these controversial cases reveals an astonishing volume of vitriolic comment and organised campaigning against the rightholders.

Now, I know I should be veddy polite, but it's going to take me a page just to go through in this paragraph. From the top...

Felten who sued the Record industry and not the other way around

This is improper moral equivalencing between a lawsuit assuring the ability to publish, and a lawsuit threatening the ability to publish. If the Felten lawyers had won, all that would have happened is that the RIAA would not have been able to sue the various researchers for publishing. If the RIAA had sued, all the "David"s would immediately have to deal with years of PERSONAL legal liability. The sentence above seems to require that one take no defensive legal measures when threatened.

clear exceptions permitting use of works for educational and research purposes

It's unclear if this means traditional copyright fair use, or the narrow DMCA exceptions. I think from the phrasing it's the former, but I'll deal with both. Traditional copyright fair use is not a defense to the DMCA. This has been repeated in many decisions, references if needed. The DMCA exception for "(g) Encryption Research" is a horribly complex and convoluted tangle, which is not at all clear. And hardly the basis from which to deny all potential liability.

thirdly, a few minutes' research on the Internet into these controversial cases reveals an astonishing volume of vitriolic comment and organised campaigning against the rightholders.

Let me see if I understand this clause - the vitriolic comment contributes to NOT being David and Goliath? Wouldn't a David and Goliath situation quite naturally generate vitriolic comment? (I can just hear a Monty Python type skit "Can't be vitriolic, you know, David. It's not done to be angry. The proper response to facing Goliath is a stiff upper lip. That will go a long way to showing how you're truly overmatched") As to "organised campaigning against the rightholders", well, as I write this, the techie news is filled with reaction against perhaps the largest subpoena carpet-bombing ever seen - certainly the largest that nonlawyers have ever seen. And some of that comment is extremely vitriolic.

Again, that's detailing one paragraph, and I'm tired already. I'm unable to convey the emotion of seeing the potential for years of devastating litigation, so airily dismissed.

Kill the "ACCOPS" bill via applying it to Microsoft Windows!

Regarding the proposed "ACCOPS" law (post a copyright work, go to jail) Edward Felten has remarked:

As so often happens in these sorts of bills, the definition has unexpected consequences. For example, it would apparently categorize Microsoft Windows as "enabling software," since Windows offers both file server facilities and network search facilities. ...

I was just musing that the quickest way to kill this silly bill would be to apply it to Microsoft Windows - and in fact, such an application would be well-deserved! After all, if any software is worth a strong warning that it "could create a security and privacy risk for the user's computer", Microsoft Windows surely qualifies! Just yesterday, there was a notice:

A critical, remotely exploitable security vulnerability has been found in a part of the Microsoft Windows operating system software. This vulnerability affects all versions of Windows commonly run in SCS, including NT, 2000, and XP. It is important that people apply the appropriate patch to their PCs.

Details about the vulnerability can be found at:
http://www.microsoft.com/technet/security/bulletin/MS03-026.asp

That definitely sounds to me to be "a security and privacy risk for the user's computer"!

"ACCOPS" - post a newspaper column, go to jail?

The draconian copyright topic of the day is an absurdity called ``Author, Consumer, and Computer Owner Protection and Security (ACCOPS) Act. The key part is short and not-so-sweet:

Section 506(a) of title 17, United States Code, is amended-- ...
``For purposes of section 2319(b) of title 18, the placing of a copyrighted work, without the authorization of the copyright owner, on a computer network accessible to members of the public who are able to copy the work through such access shall be considered to be the distribution, during a 180-day period, of at least 10 copies of that work with a retail value of more than $2,500.''.

This is ludicrous. It has to be grandstanding like last year's proposed Hollings copy-control mandate.

Dereferencing the above, "section 2319(b) of title 18" is "Criminal infringement of a copyright". So the above paragraph then parses out to:

Section 506(a) of title 17, United States Code, is amended-- ...
``For purposes of [ Criminal infringement of a copyright ] the [unauthorized] placing of a copyrighted work, on a computer network accessible to members of the public who are able to copy the work through such access shall be considered to [worth up to five years in jail or excessive fines]

Post a newspaper column to your blog, go to jail?

Winer Watcher

Dave Winer, who runs an extremely well-known blog site apparently has habit of editing and changing his posts (especially nasty ones). This has spawned a Winer Watcher page, where one of his disputants, Mark Pilgrim, shows the changes. Posts are excerpted, original versions contrasted to changed versions, with changes highlighted. Now Dave Winer has remarked

The next step is to look at the copyright issues [Mark Pilgrim's] service raises. They are quite interesting. Scripting News, both in HTML and RSS, has a clear copyright on it. Should I have a say in publications created from my content? I generally don't mind, but shouldn't I have to give permission? Suppose a magazine started publishing all my writing. Would I have recourse? I am not a lawyer, but it seems clear that I would. Is Pilgrim somehow immune to copyright law? I'd love to hear the legal theory that allows him to do what he's doing with my work.

Now, I'm not a lawyer, but it seems to me that the Winer Watcher page is very likely to be fair use. Let's run down the four-factor fair use test.

(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The watch page is clearly non-commercial, and a reporting effort (not necessarily a nice or disinterested effort, but that doesn't seem relevant here)

(2) the nature of the copyrighted work;

The copyrighted work is creative, so this counts against fair use.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

This is very debatable, as to what in a blog post is "the work as a whole", but excerpting is certainly being done overall.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

There's no argument that the original blog postings are somehow less valuable because their changes have been tracked, or that the watching page is improperly drawing hits.

So looking at this in total, while not every factor is a slam-dunk win, I'd offer that the non-commercial, reporting nature, and lack of effect on value, are highly favorable. Again, I am not a lawyer, this is not legal advice, it is only my opinion (though I'd hope it's an informed one).

The most contentious items are likely to be the postings which were deleted. But the use of copyright to suppress reposting them seems clearly aimed at avoiding embarrassment, not preserving the potential market.

Of course, one has to win against the lawsuit, which is a whole different matter entirely.

John Palfrey has a posting about this issue, but his analysis assumes everything is mirrored. Perhaps he was discussing an earlier version, or misunderstood the watcher page. There's also a remark:

More reasonably, we should keep at the task of embedding (cc) licenses, or alternately a statement to clarify that we mean to contribute the work to the public domain, in RSS feeds and on the pages of weblogs to make clear our intentions in sharing and syndicating our work. Or, I suppose, the blogging community should understand what's meant when someone indeed decides that they mean to retain the copyright to something.

Sadly, a claim of retaining the copyright wouldn't change this situation. It's a classical case where fair use is intended to be a defense against a hostile party charging copyright violation. That would just move the issue to how to do the watching page in compliance with whatever copyright demands. So this isn't really an ad for cc (creative commons) licenses. It's much more an illustration of copyright as a weapon.

There's a discussion of the morality of this whole issue at the Burningbird blog. And I nearly deleted this article (before posting!) due to being an ant among thundering elephants, but let's see if I survive.

Aimster and Encryption

The Aimster decision, to keep an injunction against that file-sharing service, has generated a great deal of commentary (e.g. Derek Slater has much). I just have some observations regarding Aimster's use of encryption.

Ed Felten writes

The opinion assumes that Aimster did this because it wanted to remain ignorant of the infringing nature of the traffic. ...

But there is another good reason to use end-to-end encryption in such a service. Users might want to transfer sensitive but noninfringing materials. ... The opinion hints at all of this; but apparently Aimster did not offer arguments on this point.

I think the court recognized that reason straightforwardly, in this part:

4. Aimster's users might appreciate the encryption feature because as their friendship deepened they might decide that they wanted to exchange off-color, but not copyrighted, photographs, or dirty jokes, or other forms of expression that people like to keep private, rather than just copyrighted music.

This passage is in fact rather thoughtful on the encryption issue:

He did not escape liability by this maneuver; no more can Deep by using encryption software to prevent himself from learning what surely he strongly suspects to be the case: that the users of his service--maybe all the users of his service--are copyright infringers. This is not to say that the provider of an encrypted instant-messaging service or encryption software is ipso factor a contributory infringer should his buyers use the service to infringe copyright, merely because encryption, like secrecy generally, facilitates unlawful transactions. ("Encryption" comes from the Greek word for concealment.) Encryption fosters privacy, and privacy is a social benefit though also a source of social costs. "AOL has begun testing an encrypted version of AIM [AOL Instant Messaging]. Encryption is considered critical for widespread adoption of IM in some industries and federal agencies." Vise, supra. Our point is only that a service provider that would otherwise be a contributory infringer does not obtain immunity by using encryption to shield itself from actual knowledge of the unlawful purposes for which the service is being used.

Though there's a paradox lurking here, almost a kind of poetic justice or irony. Roughly:

Service: We've implemented encryption to protect our users' piracy, err, we meant privacy. So gosh-darn-golly, we can't know of any copyright infringement by our users, since the files shared are secret. We win!

Court: How interesting. You say you can't know what files your users are sharing? It's a secret? You absolutely, positively, don't know? Hmmm ... then you can't provide any evidence that there are actually any substantial noninfringing uses. You lose!

That's oversimplified, but the court does seem to have said something along those lines:

Aimster failed to make that showing too, by failing to present evidence that the provision of an encryption capability effective against the service provider itself added important value to the service or saved significant cost. Aimster blinded itself in the hope that by doing so it might come within the rule of the Sony decision. It complains about the district judge's refusal to hold an evidentiary hearing. ... [snip] ... Aimster hampered its search for evidence by providing encryption. It must take responsibility for that self-inflicted wound.

DMCA, fair use vs "access to copyrighted material"

I don't know how long I should drag out the Eldred discussion with Derek, but the following part motivated me to write yet another item on the topic:

That's why I don't really think of this discussion as people naively reading too much into the Eldred opinion. I look at it as a starting place for the next person who gets sued.

As I just said, cough, cough, cough ...

It's exactly because of being a starting place for the next person who gets sued, that I think people are naively reading too much into the Eldred opinion!

Quite frankly, nothing is worse for such a person than a pundit-lawyer on a hobby-horse, who needs a reality-check (nothing personal to anyone involved in this discussion, just a comment/example from more "intense" times).

I think I've found a fairly concise way of illustrating where I think there's a small (very small) gain, and a large gap:

Here's the good news, regarding this part of the 2600 Appeals decision:

Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might arguably be enlisted for such a requirement. ...

[And the fair use discussion in Eldred fits right here. One could say that it establishes there is such a requirement. Eldred at least unarguably adds strongly to the pile of evidence in favor of that point.]

Here's the bad news. Contrast the key fair use paragraph in Eldred here:

Second, the "fair use" defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U. S. C. ß107, the defense provides: "[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The fair use defense affords considerable "latitude for scholarship and comment," Harper & Row, 471 U. S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569 (1994) (rap group's musical parody of Roy Orbison's "Oh, Pretty Woman" may be fair use).

With this pronouncement in the 2600 Appeals decision:

A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.

Where is there anything, anything, in what was said in Eldred, which screams that a Supreme Court opinion on the DMCA would reject that baleful phrase "Fair use has never been held to be a guarantee of access to copyrighted material ..."?

Try it as a positive assertion: "The Eldred decision establishes the contention that fair use is a guarantee of access to copyrighted material ...". See how stretched it is? How much it sounds like wishful thinking?

DMCA, fair use, and "traditional contours" argument

Replying to Derek, about Eldred decision meaning:

I reject the argument that the "traditional contours" argument is just a "vague phrase" without any meaning. It's not just that one phrase; it's a thread that runs through her entire argument. If none of that argument is important, then she would not have said that the lower court had erred in any way - her opinion would be equal to a categorical first amendment immunity for all copyright legislation. Given that she specifically said no such immunity exists, I don't see how one can ignore the traditional contours portion of her argument.

Consider the whole paragraph:

The First Amendment securely protects the freedom to make or decline to make one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.

Let me say, as a disclaimer, that I'm not a lawyer, not even a lawyer-in-training. But my reading of court decisions has made me very cynical. So when I encounter a passage such as the above, I don't see a ringing clarion-call for the ramparts of fair use. Rather, I hear, bluntly, a blow-off. A "But ...". Someone clucking "Now, that Circuit Court went a little too far, but don't you get any crazy ideas about First Amendment arguments overturning these laws."

The problem with Balkin's "pony-hunt" is where he's assuming exactly the conclusion he wants to reach (my emphasis:)

Does the DMCA "alter[] the traditional contours of copyright protection"? Yes, it does, in two respects. ...

Congress clearly did mess with those horizontal aspects in the DMCA, and so, under the logic of Eldred, it infringed on the "built-in free speech safeguards" of copyright law.

However, the "legal hack" argument of the DMCA is that it does not infringe on "built-in free speech safeguards" of copyright law, because it doesn't affect fair use in terms of a technical exception (as opposed to a substantive limit).

I am absolutely certain that in a DMCA Supreme Court opinion, they will analyze the issue of fair use extensively, instead of dismissing it out of hand. To this extent, I'll agree Eldred established fair use as a Constitutional requirement, rather than something which exists at the whim of Congress.

But I fear in that analysis, we are likely to see pages and pages explaining how in fact, in the court's view, the DMCA does not alter the "traditional contours of copyright protection" And the blueprint for that is in all the lower court decisions enthusiastically saying how the DMCA is not a fair use issue. Channeling Ginsburg, we'll get:

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection.

[Now insert: The DMCA doesn't affect idea/expression]

Second, the "fair use" defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.

[NOW insert: There's no right to access, fair use is merely a technical exception not a substantive limit - this is the whole argument]

I can see this very easily. Very easily indeed.

I believe people are reading into the Court's fair use discussion, something they themselves deeply believe is true, and so desperately want the Court to endorse as true. I share these feelings. But that can be a fatal error. I sadly see little evidence that the Court is saying anything DMCA-unfriendly.

C'mon. Do they sound business/copyright-power unfriendly to you?

Pamela Samuelson IP Law After Eldred

So, I started digging through Pamela Samuelson's recent paper on The Constitutional Law of Intellectual Property After Eldred v. Ashcroft (per blog recommendation of Derek Slater). I spotted a technical error, my pet peeve of the DeCSS history.:

The controversy concerned a Norwegian teenager who reverse engineered the Content Scramble System (CSS), an encryption program used by major motion picture studios to protect DVD movies. This teenager figured out how CSS worked, developed the DeCSS program to bypass CSS, and then posted the program on the Internet, to the dismay of major motion picture studios.

No, an anonymous German reverse-engineered CSS. Said German remaining anonymous for very obvious reasons ... I feel for that anonymous programmer ...

Oh, I was vastly "amused" by this summary remark:

Samuelson suggests that even if we couldn't mount an attack on the entire DMCA, we could see more successful challenges by particular defendants. They might have more success as fair users rather than traffickers (think Felten).

Sigh, cough, cough, cough ...

Users and losers in the conflict between DMCA and fair use

Derek Slater has an extensive post on After Eldred, and comments in it:

Oh, and as for Seth's argument about the "DMCA does not limit fair use" clause - I don't buy it.  Corley, for good reason, did not read that clause to mean that the DMCA provided a fair use exception.  Its designers did not intend such an exception.

Indeed. In fact, the Memorandum Order says outright:

If Congress had meant the fair use defense to apply to such actions, it would have said so.

But I argue this is key for exactly the reasons being discussed, what Frank phrases as "how to treat technology in relation to expression". I semi-agree that the "The court clearly had trouble figuring out how to treat technology in relation to expressions". But the trouble seemed to me more in fitting the legal theory to the outcome they saw as absolutely necessary. And hence we get back to practical fiction that the DMCA does not limit fair use.

In a nutshell:

I suppose you can make those technologically inconvenient fair uses, in the abstract. But it's greatly altering the way you experience the content.

And thus we return to the DMCA argument is that there's no particular right to experience content (i.e., DMCA not affecting fair use):

Although the Appellants insisted at oral argument that they should not be relegated to a "horse and buggy" technique in making fair use of DVD movies,36 the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, ...

36 In their supplemental papers, the Appellants contend, rather hyperbolically, that a prohibition on using copying machines to assist in making fair use of texts could not validly be upheld by the availability of "monks to scribe the relevant passages."

Note that phrase even an arguable limitation. What we are doing here is reiterating at great length, with many variation on the theme, the fundamental conflict in views of fair use: substantive limit, or technical exception? In terms of a procedural reply to a copyright infringement charge, sure, there's no limitation. But regarding real-world impact on ability, such a statement would be ludicrous.

People are going ga-ga over one vague phrase in Eldred, "the traditional contours of copyright protection". But there's pages and pages of dismissal of fair use, substantively, in Corley.

This reality obliges courts considering First Amendment claims in the context of the pending case to choose between two unattractive alternatives: either tolerate some impairment of communication in order to permit Congress to prohibit decryption that may lawfully be prevented, or tolerate some decryption in order to avoid some impairment of communication. Although the parties dispute the extent of impairment of communication if the injunction is upheld and the extent of decryption if it is vacated, and differ on the availability and effectiveness of techniques for minimizing both consequences, the fundamental choice between impairing some communication and tolerating decryption cannot be entirely avoided.

In facing this choice, we are mindful that it is not for us to resolve the issues of public policy implicated by the choice we have identified. Those issues are for Congress. Our task is to determine whether the legislative solution adopted by Congress, as applied to the Appellants by the District Court's injunction, is consistent with the limitations of the First Amendment, and we are satisfied that it is.

I'd say this is sadly the inverse of "splitting the technology from the expression, divorcing the use of code from actual human experience." What the court seems to say, up and down, throughout the entire decision, is basically, in my view, that if they accept a First Amendment or fair use defense of code, in practice, it's going to allow too much to get through. So it won't be allowed.

We can't split the difference with source code versus object code. Again, in practice, the court is concerned with the effects, so source versus object is immaterial. My reading of it is that they "got" the implications, they understood all about technological mediation of experiential aspect. And they came out on the issue that, bluntly, users lose.

More regarding DMCA versus fair use

The 2600 Appeals Court decision is critical reading on the topic of the DMCA versus fair use Here's the problem with Balkin's "pony-hunt" in a nutshell, from that decision:

We need not explore the extent to which fair use might have constitutional protection, grounded on either the First Amendment or the Copyright Clause, because whatever validity a constitutional claim might have as to an application of the DMCA that impairs fair use of copyrighted materials, such matters are far beyond the scope of this lawsuit for several reasons. In the first place, the Appellants do not claim to be making fair use of any copyrighted materials, and nothing in the injunction prohibits them from making such fair use. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials.

There's the "legal hack" at work. You're not accused of copyright infringement, you're accused of DMCA violation. The fact that access for the purpose of making a copy is deemed irrelevant. That's the trick. And if the Supreme Court can swallow "limited times" which are retroactive and finite-yet-unbounded, I'm unfortunately having a hard time seeing where they won't swallow that the DMCA hasn't "altered the traditional contours of copyright protection,", under the theory that it's not really copyright. That's why I call it a "legal hack".

DMCA vs fair-use

DMCA/fair-use blog party!

Donna and Derek and Kerr and Balkin and Solum and Frank ...

Let me jam too.

I think understand what Balkin is saying, and also what Kerr is saying.

Here's the deep question, which is being batted around:

Is fair-use a substantive limit, or a technical exception?

The side Kerr is arguing, what some call "affirmative defense", I call the "technical exception" view. That is, it conceives of fair use as having no overarching meaning, no deep significance. It's just a procedural reply in some particular sections of copyright law. The implication here, being that if one creates a new section of the copyright law - such as the DMCA - there's no carry-over, no principle to apply. The sections of the laws are partitioned, and never the twain shall meet.

The side Balkin is arguing, I call the "substantive limit" view. Fair use is an aspect of the First Amendment. It's intrinsic to any copyright-associated law by virtue of drawing power from the First Amendment's scope and reach, as a Constitutional provision. It's a bit like an all-pervasive Holy Spirit that way (the DMCA makes baby Jesus cry).

Now, Balkin is reading the Eldred decision as having a kind of genuflection to the pervasive spirit of fair use. How he does this, from perhaps the largest copyright-grab in history, is awesome to behold. The idea is that the court says the copyright-grab is OK in part since it didn't change fair use:

But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.

So, goes the thought, this is a shining reaffirmation of the importance of fair use as substantive limit. And that strengthens the argument of those who argue that the DMCA is a restriction of this substantive limit. Follow the reasoning?

Frankly, this strikes me not as making lemonade out of lemons, but rather, wading through a pile of manure and trying to find a pony.

The cyanide in this lemonade is that it in fact doesn't help much against the "legal hack" that the DMCA doesn't affect fair use:

* (c) Other Rights, Etc., Not Affected. - (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

So the DMCA defenders are going to argue that in fact "[the DMCA] has not altered the traditional contours of copyright protection". Why? It says so right there, see? "Nothing in this section shall affect ...". But, respond the DMCA opponents, fair use is a substantive limit! No, say the DMCA defenders, fair use is a technical exception ...

Roundabout, here we come, right back where we started from ...

Jesse Jordan, RIAA, and direct copyright infringement

In a reply to my entry concerning Jesse Jordan being sued by RIAA, Edward Felten  commented and discussed the elephant in the room:

But let's not forget the plaintiffs' other claim, that Jordan was a direct infringer, based on his alleged redistribution of hundreds of copyrighted works from his own computer. If proven, this claim would have cost Jordan much more than $12,000 in damages. And it seems reasonable to assume that the direct infringement claim was not baseless, especially given that Jordan has not denied it.

Note I've now had some correspondence with him about this, and he does in fact deny that direct infringement allegation.

That direct infringement claim was much on my mind, as I dug through the RIAA complaint documents. It's a very touchy matter to ask someone if they are in fact guilty, especially in a high-profile case. But not following the crowd wins me few friends :-(. I felt very uncomfortable suggesting that someone targeted by the RIAA might, in fact, be guilty. And that feeling was much intensified by my sympathies for the underdogs. There's definitely an opportunity here for some journalist to write a "contrarian" article ("Debunking RIAA myths"?), but it's not for me.

I was bothered by the thought: When is it reasonable to assume a claim is not baseless? The mere fact that it was made, didn't seem sufficient. I know in my life, I've had people lie through their teeth about me, on the abstract rational basis that whatever mud sticks, whatever doubts are raised, even the smallest amount, is to the attacker's benefit. It's not as if a judge is going to laugh the RIAA out of court for making a claim of direct infringement in a copyright case! It would seem an obvious allegation to make here, even if completely false. On the other hand, direct infringement is not exactly an absurd claim either. As pointed out, many people (especially college students), do formally violate copyright law on a regular basis.

So ultimately, I couldn't find a compelling analytical argument either for or against the direct infringement claim. Perhaps someone else would like to ask the other "RIAA 4" defendants if they're actually guilty :-)

Jesse Jordan on being sued by RIAA

Jesse Jordan is one of the "RIAA 4", four students who have been sued by the RIAA, and have settled the lawsuits

For some reason I frankly don't understand, Jesse Jordan's settlement is in the news once more, which is leading his particular settlement being reported all over again. Not that the re-reporting is a bad thing itself. The free-speech side needs all the help it can get.

Anyway, deep down, in a huge discussion on his site http://www.chewplastic.com/ , are his comments on why he settled, paying his life's saving of $12,000, versus the cost of fighting a lawsuit. I find them cautionary:

*Re: Review, cont'd.* (Score: 1)
by chew on Tuesday, June 10 @ 16:08:36 EDT

Actually, almost all of my legal advice indicated to me that I would be able to win this lawsuit. If I won this lawsuit, I would be in for much more than just $12,000. Defending a lawsuit of this size would cost $250,000 at a minimum, so I'm told.

Even if I win... I get nothing back from them. If I lost? I would have to declare bankruptcy after giving up all of my money anyways, and I would have a judgement against me. Going to court in this sort of lawsuit (where the defendent is not a company and did not profit from its operations) is a lose-lose situation.

For the RIAA to take all my money in a settlement is very nasty of them. Even so, it was my best choice - as they did not give me any other.

"Aimee Deep"

Aimee Deep is the "face" of the file-sharing program Aimster/Madster. I was intrigued by the discussion of the marketing tactic, as covered in FurdLog-1 and FurdLog-2, Matt Rolls-1, and Matt Rolls-2. The last being mentioned again recently in Matt's case commentary. That prompted me to write-up a little material I'd found. There's enough commentary on the case itself, I feel no great need to add to the pile.

The best source of information about "Aimster" the business, seems to be Evan Hoffman's page on "Why Aimster sucks" and other ponderables (http://www.evanhoffman.com/aimster/):

In case you don't know anything about me, I used to work at Aimster as one of two guys who developed Aimster's Mac client ... I no longer work at Aimster and they've really screwed me over. Rather than rehash the whole story in this space, I'll try to link to all the info I can find from here.

It's dangerous to get dragged into a "buzz" campaign, of Is-Aimee-Deep-real? That's just asking to be "used" with a dozen comments of is-she-or-isn't-she (and who knows for sure ...). Much more interesting (at least to me) is, say, a question of "How much sleazy marketing is being done by Aimster, especially maybe trying to get sympathy from horny geeks, while they rip off their programmers?" :-)

Now, it seems to be clear that John Deep, founder of Aimster/Madster, has a daughter by the name of Madeline who is now 18. There's a "Madeline Deep" listed as an honors graduate of Cohoes High School, same town where the company is located.

There's old business stories discussing the marketing, e.g. http://albany.bizjournals.com/albany/stories/2002/01/21/daily58.html

Deep said his daughter Aimee, whose real name is Madeline, will start going by her given name.

"Aimee's being called Madeline again," he said. "She's the Madster."

Deep said he'd nicknamed his 16-year-old daughter Aimee when she was a child. She has been the public face of the company and featured on the Aimster Web site in a bikini.

George Carpinello, Deep's attorney, said she can be called Aimee if she likes and Deep can sell other goods and services under that name.

So "Aimee" is not (or at least originally was not) her middle name.

There's an obscure comment on Matt's page which has some information that might warrant a greater audience. It's anonymous, but seems worthwhile:

As a former Aimster employee, I have a few things to mention:

1) Aimee Deep = Madeline Deep, John Deep's daugher (she exists, and is just a normal high school senior).

2) Madeline does not write the Musicpundit text; I'm reasonably certain that she doesn't even know the site exists.

3) Madeline is finishing her senior year of high school. If she shows up at a hearing Wed., I will be extremely surprised. My guess is that 'something' will come up. If she DOES show up, she won't be talking Aimster with anyone (because she doesn't know anything about it).

4) Your suspicions are correct. Aimee is an invented name that John (or someone) came up with after the AIM trouble. Early versions of Aimster were actually spelled AIMster. A few places in the code still use this spelling.

Aimee Deep is really just an invention of John's that happens to use his daughter as a public face. Among other things, think about that and you'll begin to get a clear picture of the kind of 'entrepreneur' he really is.

That last part ("the kind of 'entrepreneur' he really is"), is why I think there's some value in the subject of "Aimee Deep".

Now, is "Aimee Deep" worst than "Betty Crocker" or "Sarah Lee"? Abstractly, no, I can't see why. I can't even get too worked up over the teen-daughter aspect per se. Being a web-site "model" isn't bad, and there's no indication she feels exploited.

What bothers me is the sense that the "booth babe" replicant is being used in a manner beyond eye-candy, and into very slimy territory. Not because there's a picture of a girl in a bikini. Rather that we're told the product is to help that poor little girl (awwe ...), and later a sense that the T&A is being used as a distraction. It's manipulative enough to have an unsavory aspect, in my view.

Aimster and "judicial flaming"

The Aimster argument has been well-covered, extensively. What I have to add here is an interesting observation I dug up from the previous decision. This was sparked by a remark in A Copyfighter's Musings post on Thoughts on Aimster:

It seems much of Judge Aspen's reasoning evolves from a distrust for Johnny Deep, considering the encryption part of a mischievous willful ignorance.

Yes indeed. Sayeth the judge:

If Deep's declaration were the only means by which we could evaluate the Aimster system, we might be convinced that it is as innocent as Defendants claim. Unfortunately for Defendants, however, Plaintiffs have submitted numerous declarations to demonstrate that Deep's description of the Aimster service is less than complete.

And you can just see the venom dripping in the Opinion, especially in the portion below. The judge might just as well have written "They're all a bunch of pirates", it would be shorter. I'm adding this to my collection of items about "judicial flaming". It's especially notable for being an instance where trivial message board postings DO end up in court.

3. Chat Rooms and Bulletin Boards Aimster's service includes message (or bulletin) boards on which Aimster users would regularly post messages to each other. Schafer Decl. 3, Ex. 1 (containing screen shots of bulletin board messages). The discussions on these bulletin boards generally fell into a range of particular topics, including: (1) Aimster users seeking to download copyrighted recordings ("I'm trying to find downloads from the Purafunalia album. Specifically the song Blast" (posted by SeanKoury, July 4, 2001)); (2) Aimster users offering recordings for download ("I have a lot of hip hop shared at all times when I'm on, usually over 500 MP3s... [F]eel free to get whatever you want" (posted by biggvince, July 17, 2001)); (3) Aimster as an alternative to Napster ("I'm a long time Napster user, with about 900 MP3s...like everyone else, the RIAA has forced me to try other mp3 websites, so here I am" (posted by honey, March 17, 2001), "Use Aimster like Napster" (posted by Marcella42, May 27, 2001)); (4) comments on the illegality of sharing copyrighted music files ("What you have with Aimster is a way to share, copy, listen to, and basically in a nutshell break the law using files from other people's computers.... I suggest you accept aimster for what it is, an unrestricted music file sharing database" (posted by zhardoum, May 18, 2001)); and (5) bashing of the music industry and the RIAA ("LET'S ALL FUCK OVER THE MUSIC INDUSTRY. . . LETS CHEAT THE VERY ARTISTS WE LISTEN TO" (posted by poiuytrewqm May 20, 2001), "I AM NOT GOING TO BUY CDS ANYMORE!" (posted by OKOK, October 9, 2001)). See, generally, Schafer Decl. Ex. 1 (attaching screen shots).

Doggerel on "Public Domain Enhancement Act" petition

Today's Copyfight  blogstorm is generated by Lessig's post regarding the Reclaim the Public Domain online petition

Forgive me, but the following doggerel popped into my mind over it:

I signed it, so should you.
It'a a cheap and easy me-too
But really, what will it do?
Is a net-petition anything new?
They're known, listeners are few.
I feel like a killjoy, having this view.

There Is No Lawsuit-Funding-Fairy

Following up my comments on the "RIAA 4" lawsuit settlement, I went and researched some numbers for showing that there is no lawsuit-funding-fairy.

In the old State of Oregon v. Randal Schwartz case (unauthorized security testing and remote access by a consultant turning into felonies), I just checked the amounts from the message at his information server, "The Fund Daemon" <fund[at]stonehenge.com>

Legal costs, total: $186159.85 . Defense fund: $22319.19

That is, 12% of the legal bill was covered by donations.

Another old one, the LaMacchia case (though very relevant to the recent Grokster, Streamcast win, for the David LaMacchia Defense Fund total defense contributions, I get $8343.20 .

I don't have good data for recent individual-defendant cases. I think people stopped publishing the specific numbers because the amounts were either embarrassing or discouraging.

But that's reality.

"RIAA 4" lawsuit settlement

The news is making the rounds now, that the "RIAA 4" lawsuit for copyright infringements, against four students running network services, has been settled. I'd like to focus on the following paragraph:

The settlements will see each student making payments to the RIAA totaling between $12,000 and $17,000, split into annual installments between 2003 and 2006. The lawsuits as filed could have entailed damages (in theory) of up to $100 million.

ORDINARY HUMANS CANNOT FIGHT CORPORATE LAWSUITS! Nobody hears me when I say that. Last week, Matthew Skala had mentioned:

I remember that I drew a lot of criticism for settling the Cyber Patrol break case "prematurely", or "at the first threat of a lawsuit", but that wasn't accurate - Mattel et al. actually never threatened me, they just went ahead and filed two lawsuits without stopping to make threats, and an injunction was issued and the cases got pretty far before I settled.

I remember the arguments that settlement sparked, as I got some grief myself for privately defending his decision. It's too easy to fight to the last drop of someone else's blood.

When I talk about how these problems have chilled my own censorware work, too often it's just ignored and dismissed, because it's not in people's experience. Maybe the real-world aspects are just starting to penetrate the mass net-mind now. This isn't a game.

Update: Edward Felten has similar comments, ending:

In my view, these lawsuits tell us nothing new about the legal status of the kinds of general-purpose search engines these students were running. The lessons of these suits are simpler: (1) don't be a direct infringer, and (2) getting sued by the RIAA is expensive.

Now, I agree with those statements. But I'd like to amplify that these lawsuits do tell us something new - or at least reiterated - about who can afford to defend the legal status of such cases. That's the big problem. And too many people don't realize it. I quote Matthew Skala much on this point:

When we published the essay I didn't expect a lawsuit, but I had also thought, "Well, if there is a lawsuit it won't be a problem, because there are organizations that take care of things like that." I fondly imagined that in case of legal silliness, someone would just step in and say "We'll take it from here." What I found out was that those organizations, through no fault of their own, were able to give me a lot of sympathy and not enough of anything else, particularly money, to bring my personal risk of tragic consequences down to an acceptable level, despite, incredibly, the fact that what I had done was legal. Ultimately, I couldn't rely on anybody to deal with my problems but myself.

Some people learn that lesson a bit less impressively than I had to.

Too many people, especially techies, believe that someone is just going to step in and write a blank check for legal expenses. It's not going to happen. The implications which stem from this mistaken belief, however, are seriously debilitating. Just personally, I can't convey how much grief I've gotten from those under the mistaken notion that all I have to do is get sued, and the lawsuit-funding-fairy will appear. Or more generally, how much blather is based on the idea that someone else is going to do the legally-risky work (I call this the theory of the "Secret Society of Civil-Libertarian Circumventors"). THAT lesson, that there is no lawsuit-funding-fairy, and the consequences thereof, is profound.

Grokster, Streamcast copyright win, vs. LaMacchia case

As has been making the rounds, a Federal judge found in favor of file-sharing technology. The Grokster, Streamcast decision is interesting. I was struck by the end:

CONCLUSION The Court is not blind to the possibility that Defendants may have intentionally structured their businesses to avoid secondary liability for copyright infringement, while benefitting financially from the illicit draw of their wares. While the Court need not decide whether steps could be taken to reduce the susceptibility of such software to unlawful use, assuming such steps could be taken, additional legislative guidance may be well-counseled. ...
... Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the raised permutations of competing interests that are inevitably implicated by such new technology.

This reminds me much of the concluding part of the LaMacchia case:

This is not, of course, to suggest that there is anything edifying about what LaMacchia is alleged to have done. If the indictment is to be believed, one might at best describe his actions as heedlessly irresponsible. and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values. Criminal as well as civil penalties should probably attach to willful, multiple infringements of copyrighted software even absent a commercial motive on the part of the infringer. One can envision ways that the copyright law could be modified to permit such prosecution. But, "'[i]t is the legislature, not the Court which is to define a crime, and ordain its punishment.'

And the result there was the .NET act . I wonder what we'll get here?

Don't get me wrong, it's nice to win one. But I have a strong feeling it's not going to be a permanent win.

Digital strategies, "real" world, again

I've still been pondering "the next step in the copyfight", as Donna Wentworth (Copyfight) put it.

I'm thinking about this from the exact opposite of an abstract perspective. Remember, about a week ago, I did a grueling, almost round-the-clock trip to the Copyright Office circumvention hearings in order to testify to renew the censorware 1201 DMCA exemption.

In some ways, this encapsulates many aspects of the problem. Rhetorical strategy? Check. I spend a great deal of time trying to be prepared to answer expected censorware questions. But money? My opponent, David Burt of N2H2, had his expenses all paid, and PR/lobbying is his job, not mine. Now, he may have been handed a big defeat, time will tell. And it's ignominious to get compared (not by me!) to the Iraqi Information Minister :-). But I keep thinking, I spent more than a month's health insurance premium, out of my own pocket, while unemployed, to do that testimony. What did it get me? I wasn't even likely to get much publicity/recognition out of it, especially given the Slashdot situation with "editor" Michael Sims. It's not sustainable

It's theory vs. practice. There's an old joke, to make lion soup, first catch a lion ... Many of the strategies mentioned aren't wrong, but they are hard to do. For example, if someone tries to co-opt forces on the other side, it's always a problem that they don't co-opt back. I can see where there might be battles of exactly this sort (in fact, that was a big problem with opposing censorware years ago!).

Digital strategies in the "real" world

Donna Wentworth at the newly-URLed Copyfight has asked about the next step in the copyfight. Here's an exchange I think about, which is from the Copyright And Culture Forum which took place at MIT last November.

SETH FINKELSTEIN, programmer: We've talked about what the problem is, but what are the best ways to get to the results we want? What can non-lawyers do? I asked Richard Stallman this question (see Stallman's 2001 Forum talk on copyright). He said if you see a movie by a big studio and you don't like it, then don't pay for it. That doesn't go very far. I am amazed by the amount of money on the other side of this battle. If we don't have millions of dollars, what do we do? Just sit back and cheer on Lawrence Lessig?

VAIDHYANATHAN: That's part of it. What can we do? Plain talk is one thing. Everyone involved in this is trying to come up with a better vocabulary for discussing it. We actually have a growing army. It's a loosely knit bunch that includes hackers, users of material, and, most importantly, librarians. There are 30,000 librarians in this country who are very upset by all of this. They all vote and they talk to their congressmen. They are politically active right now, and if an objectionable piece of legislation is under consideration, they'll write letters and circulate petitions.

Once you bring in religious conservatives who want to show movies to their kids without nudity, then you have a bigger group. Then you get a group of talented lawyers involved. It is starting to happen. Unfortunately, the battlefield is global now and we don't have troops aligned globally, except for the hackers.

ZITTRAIN: This suggests a three-pronged attack. First, you instruct people that this is a political issue, just as the environmentalism movement had to do.

Second, you work through the judiciary such as the Eldred case is doing in challenging the Sonny Bono copyright extension. That's what Lawrence Lessig calls "speaking reason to power." And the third thing, also sometimes used by the environmental movement, is to realize that what's on the other side is not something evil, it's an economic and predictable force. Then, you try to co-opt those on the other side, again as the environmental movement has done.

Extremism and the "RIAA 4" megadamages, vs. three-strikes laws

Lawrence Lessig has an interesting comment about the "RIAA 4" lawsuits and the absurd damages sought (see Tim Hadley's Math class for poets Law and Life for a very extensive explanation). Lessig starts off:

They say I'm a pessimist about the future of freedom on the net, and they've got two books of mine to prove it. But the report that the RIAA has now filed suit against four students for sharing content over a university network is a moment of hope. If we work hard to report the details and reality of this suit, then the extremism of the RIAA's tactics will finally get through.

Then he discusses compulsory licensing as a solution. But I'm more struck at the "hope" - is it true? Is it really the case that: IF details and reality are reported here, THEN extremism of the RIAA's tactics will finally get through?

I'm pessimistic. Just think about the "three-strikes" cases. There were plenty of horror stories reported, of people being imprisoned for decades for very petty crimes. Yet, the Supreme Court upheld these laws, and my impression is that legislative reform movements have not made much headway.

I just can't see these lawsuits turning around people who are on the fence or opponents. I fear it'll go down into a mental slot of "Those students were BAD GUYS, so whatever is done to a BAD GUY, they deserve it". I can hear the rants already, the "Don't do the crime if you can't do the time". Proportionality is a sophisticated concept, and not exactly a popular one.

"RIAA 4" lawsuits and "RIAA math" damages

[A mailing-list letter I wrote regarding Record Industry Sues 4 Students Running File-Sharing Networks]

Note copies of the lawsuits are available at:
http://news.findlaw.com/legalnews/documents/index.html#riaa

Note one detail that isn't covered in news reports: The damages are asked for TWICE. Once for direct infringement, and another instance for contributory infringement.

So it totals: $150,000 x 2 x list of very roughly 100 items = Approximately 30 MILLION DOLLARS.

Now, while those are statutory damages, not actual damages claimed, it's still an absurd number. I refuse to believe that number has any sane connection whatsoever to lost potential profits. The entire disposable income of the non-rich student population at each university probably doesn't approach 30 million dollars.

This is "RIAA math" with an almost literal vengeance.

Free-speech vs. non-free lawyers

Great quote from a posting by Lawrence Lessig:

Publishers are among the most conservative "fair users" - not because they don't believe in free speech, but because they understand the burden of non-free lawyers.

Hmm ... to add a twist to an old statement:

free as in speech, free as in beer ... but non-free as in lawyer ...

Eldred rehearing petition, and principle

An Eldred rehearing petition was filed by Lawrence Lessig. (n.b. see notes from Donna Wentworth / Copyfight). This was an attempt to get the Supreme Court to rehear the Eldred case, the challenge to copyright extensions. The Supreme Court let the extensions stand. The rehearing petition was denied, and it seems those petitions aren't granted in practice. I noted the petition starts off:

The currency of this Court is principle. ...

When I read that, I couldn't help thinking of this classic Bloom County comic strip (it's in the first book, "Loose Tails"):

Bedfellow: And as your Senator ... I'm tickled to be here today, chatting with all of you ... um ... future voters ... yessir ...

Bedfellow: Now ... Can any of you little nits tell me which great principle our political system is based upon?
Milo: "Money talks".

Bedfellow: HMPH ... Yes, well, the other great principle ...
Milo: "MONEY TALKS".

Bedfellow: Watch your tongue, boy, or somebody might CUT IT OFF.
Milo: MONEY TALKS!
Teacher: Milo ...

As I wrote much earlier in a posting Trying to think like a conservative Supreme Court justice on copyright , the Lopez case was about guns, a topic which stirs a certain passion in many conservatives, which copyright cannot match.

And the Morrison case was about "gender-motivated violence".

So as I said before:
"Bluntly, the losers from those decisions were going to be gun-control advocates in the former, and violence-against-women activists in the latter. Here, the biggest loser would be Disney. Maybe that's an overly political view. But it's something to think about."

Yes, it's a cynical view. No doubt some would upbraid me for having less than total respect for the principled operation of the judiciary. But asking the question "What outcome is more beneficial in terms of right-wing politics?" seems, empirically, to be more predictive. That is, in a conflict between the principle of limiting Congressional powers, versus hugely offending big business interests, the business interests win. That may be a "Critical Legal Studies" type analysis, but it also seems to be an accurate one.

Copyright And Culture MIT Forum partial transcript available

There's a partial transcript now up of the Copyright And Culture Forum which took place at MIT last November. The forum isn't new, but I believe the partial transcript is very recent.

It doesn't have my copyright And Culture forum quotes, but it does have the section which contains my question about activism

Search for my name on the page - it's about three-quarters of the way down, in the audience-discussion section.

"Chicken littles" - "In Defense of Copyright Law" by Doug Isenberg

One more item regarding "In Defense of Copyright Law" by Doug Isenberg (link from Donna Wentworth / Copyfight), because the following part is quite relevant to me:

Still, there are no "copyright police." Some copyright chicken littles would have us believe otherwise by citing the interesting case of a computer programmer who along with his company was criminally charged under the DMCA in 2001 for creating a software program that circumvented technological protections on e-books in the Adobe format, even though neither the programmer nor the company actually copied any e-books. But, charges against the programmer were dropped, and a jury in December 2002 found the company not guilty. Apparently, copyright law has not run amok.

Dmitry Sklyarov was jailed pre-trial. For what? DMCA violations and conspiracy. I'd say that's "run amok".

I have a standard offer for lawyers who write things such as the "chicken littles" paragraph above. I say: Since, according to you, there is no risk, well then, there should be no problem at all for you to agree to represent me pro bono for any relevant charges arising from my censorware work. No risk, right? So there's no risk in your making such agreement, right? Here's how you can show you believe it yourself, when there's a risk to you!

I have yet to find a lawyer, who makes derisive comments like that quoted remark, who will then take me up on that offer. In this case, since it's not good to be represented by a hostile lawyer, I'd have to modify the offer from "represent me" to "cover all my legal defense expenses", or something along those lines. But that's a detail, since I don't expect any interest in it.

Note: Some readers may wonder, what about the DMCA censorware exemption, which I was instrumental in winning. That covers actually performing an encryption circumvention, but it doesn't cover publishing about it, to help others obtain the blacklists. I'm just one person, the blacklists are huge. The problem is that if I give other people the whole censorware blacklist, that's likely a copyright violation, and if I give them the tools to obtain the censorware blacklist themselves, that may be a DMCA code ("trafficking") violation.

On "In Defense of Copyright Law" by Doug Isenberg

I started to take apart "In Defense of Copyright Law" by Doug Isenberg (link from Donna Wentworth / Copyfight). It's not worth it. Here, for example, is the problem with just one sentence.

Yet many of those same critics refuse to recognize that the law applies equally to every copyright owner, from starving artists to The Walt Disney Company, as well as everyone in between.

This is almost too easy. Yup, equally. In exactly the same sort of this equality:

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread"

Anatole France, Le Lys Rouge [1894], chapter 7

How many starving artists were helped by a retrospective copyright extension? That's a trick question. The answer is NONE. BECAUSE THEY ARE ALL DEAD!. Not dead because they are starving. But dead because prior copyright didn't expire until they had been in their graves for decades. Now it's more decades. So:

The law, in its majestic equality, applies equally to the rich existing corporations as well as the long-dead poor artists ...

And that's just one sentence.

Sigh. I know, the idea is to stir the pot, to get noticed by saying outrageous things. All part of the journo-game. And I suppose I just got sucked into it.

"Copyright-royalty-replacement" taxes

The was an interesting mention by Donna Wentworth at Copyfight of a recent Valenti interview

One portion of it in particular grabbed my attention, right after a mention of the famous "VCR is [to the movie industry]...as the Boston strangler is to the woman home alone.":

Jack Valenti: I wasn't opposed to the VCR. The MPAA tried to establish by law that the VCR was infringing on copyright. Then we would go to the Congress and get a copyright royalty fee put on all blank videocassettes and that would go back to the creators [to compensate for videocassette piracy].

Umm, ... umm ... where have I just heard about something similar? Well there's the media tax in the "Audio Home Recording Act". And then there's the tax on bandwidth idea.

I'm beginning to wonder ... aside from all the talk of sampling and implementation details ... has anyone considered what'll happen if such a tax ends up not as a replacement for the copyright system, but as an additional source of revenue to the industry ?

I know, I know, that's not the proposal. But I'm pondering if anything happens, that such an outcome may be the eventual result.

Bowers v. Baystate update (shrinkwrap against reverse-engineering)

Bowers v. Baystate is a case where a district court upheld as law that a shrinkwrap license can forbid reverse-engineering (see my earlier blog entry)

Yesterday (January 29, tip thanks due to Donna Wentworth at Copyfight), the decision was apparently updated with a "concurring/dissenting opinion" by one of the other judges in the case. That now-available opinion by "Judge Dyk", is well worth reading, as it delves into all the copyright/fair-use/reverse-engineering issues:

"By holding that shrinkwrap licenses that override the fair use defense are not preempted by the Copyright Act, 17 U.S.C. - 101 et seq., the majority has rendered a decision in conflict with the only other federal court of appeals decision that has addressed the issue - the Fifth Circuit decision in Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988). The majority's approach permits state law to eviscerate an important federal copyright policy reflected in the fair use defense, and the majority's logic threatens other federal copyright policies as well. I respectfully dissent. ..."

"However, state law giving effect to shrinkwrap licenses is no different in substance from a hypothetical black dot law. Like any other contract of adhesion, the only choice offered to the purchaser is to avoid making the purchase in the first place. See Fuentes v. Shevin, 407 U.S. 67, 95 (1972). State law thus gives the copyright holder the ability to eliminate the fair use defense in each and every instance at its option. In doing so, as the majority concedes, it authorizes "shrinkwrap agreements . . . [that] are far broader than the protection afforded by copyright law." Ante at 13."

RIAA and ISPs vs file-sharers

Edward Felten comments regarding my message RIAA vs. file-sharers, civil and criminal approaches and analysis of "Where's The Money", in part:

The reason for this, Seth says, is that ISPs have money and average file sharers don't. He has a point here, but he also makes a bit of a simplification. Though the common image of file sharers is of kids, my guess is that the demographics of file sharers are pretty close to those of music buyers. Data on this point are pretty hard to come by, but Napster's statistics showed more middle-aged users than expected, and I assume that hasn't changed with the new systems.

To clarify, I didn't mean a kids/middle-aged distinction. Rather, I meant that in terms of the value for the lawyer-time involved, suing an average individual in a copyright-dispute is not a cost-effective proposition, or useful redress. It's not about looking like a "bully", or doing "dirty work". Rather, that the costs of pursuing any civil-suit would exceed any reasonable asset recovery. Just work it out - what could expected from an individual? If we take $50,000 (likely extremely high), that's a break-even point of 100 lawyer-hours at $500 an hour. The fact that a file-sharing case could generate a theoretical damage claim of a zillion dollars of statutory damages, does not mean it could obtain that money. So the only reason to pursue such cases would be for intimidation value, and such value is not evident with regard to an unskilled activity

I'm reminded of this passage from the DeCSS decision

Copyright and, more broadly, intellectual property piracy are endemic, as Congress repeatedly has found. [FN230] The interest served by prohibiting means that facilitate such piracy--the protection of the monopoly granted to copyright owners by the Copyright Act--is of constitutional dimension. There is little room for doubting that broad dissemination of DeCSS threatens ultimately to injure or destroy plaintiffs' ability to distribute their copyrighted products on DVDs and, for that matter, undermine their ability to sell their products to the home video market in other forms. The potential damages probably are incalculable, and these defendants surely would be in no position to compensate plaintiffs for them if plaintiffs were remitted only to post hoc damage suits.

In a sense, there's an obvious point here about copyright, which has subtle implications. Copyright damages are almost all not "actual" damages - they are monopoly impairments. All the talk of "intellectual property" is again leading us to think in property-like terms. But copyright is less about property _per se_ than monopoly. I believe some discussion about action against file-sharers is arising from a thought-path that leads from the idea, if copying is theft, why not go after the supposed thieves? But the "problem" here isn't theft, it's impairment of monopoly.

So where is the control-point, where application of lawyers yields effective maintenance of monopoly? (which is what I meant to address by "Where's The Money") Not the file-sharing users. The ISPs. It's not that ISPs have deep pockets, but rather that the ISPs economic incentive of maximum money made, coincides with the RIAA's goal of minimum (lawyer) money spent.

With regard to business, I've found, to a very large extent, almost nobody cares about looking like a bully. The DMCA actions even now are replete with horror stories - price data, global pre-emptive letters, to what might be called "creative applications". That's the PR department's job to clean-up. There will certainly be much journalism-fodder in ISP-based enforcement. But I'm skeptical how much that will matter in the greater scheme of things.

Again, I concur with the conclusion. But I think the reasoning in use, and necessary and sufficient to reach it, is strictly and bloodlessly economic.

RIAA vs. file-sharers, civil and criminal approaches

I agree with Ed Felten's comments on the RIAA and not suing file sharers (and Jonathan Zittrain's quotes) - that is, the RIAA will try to get the ISPs to be their enforcement agents.

However, my method of reasoning is simpler: "Where's the money?"

The RIAA is not going to file a civil suit against individuals who file-share, because, by and large, those targets have no assets. Worse, those users are at the bottom of the pyramid, the "small-fry". It's a complete waste of money to go after them.

For all the noise about The Government, prosecutors have even tighter budgets than the RIAA. A criminal case against an average file-sharing user makes even less sense.

Even make-an-example cases won't be meaningful, because the behavior involved is unskilled and low-level (note in contrast, going after tool-making programmers make much sense, that's a skilled activity, with much potential to intimidate by harsh penalties)

So where's the control-point? The ISP. ISPs want to make money. The path of least resistance (== costs least money) is to do what the RIAA wants, and there's both economic incentive and law to back this. There's the money.

Eldred decision in the "FoxTrot" comic strip

Another sign that the copyright debate has gone mainstream:
The Eldred decision is the plot of today's FoxTrot comic strip!

More than a reference, it recites the issues, and plays off the Steamboat Willie Mickey Mouse cartoon. Funny too.

Read Justice Breyer's dissent in Eldred

Read Justice Breyer's dissent in the Eldred case. It's gotten lost in the discussion, but it says much that is useful:

The economic effect of this 20-year extension-the longest blanket extension since the Nation's founding-is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates, or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of "Science"-by which word the Framers meant learning or knowledge, ...

Most importantly, that's a Supreme Court Justice speaking. So he's difficult to dismiss as a someone unversed in the law.

More on Creative Commons, "economic problem"

Arnold Kling comments ("This is being touted as profound") on my remarks regarding Creative Commons :

...Umm, which "economic problem"? It seems to me that Creative Commons is about proving that the optimal setting for creativity is not infinite copyright. That's a social problem, not an economic one.

I don't think Lawrence Lessig would try to deny that copyright is an economic issue. Otherwise, why did he get help from these economists in his unsuccessful attempt to overturn the Bono act?

I don't think that anyone is trying to deny that copyright itself is an economic issue. However, I'd say the social issue is the concept that maximizing economic return is the end-all of of fostering creative contributions. And so Creative Commons is intended to provide some licensing tools for formalizing alternative copying permission models, based more on re-use and redistribution.

Frankly, this seems like a very mild and minimal undertaking. Where have the "Commonists" (I love that term!) said anything like "Creative Commons is a tool to defeat the entertainment industry" ? Admittedly, I haven't been following all the stories about the launch, so maybe someone got carried away with PR somewhere. But some cited examples of this view would be nice. It sounds like a strawman to me. The small experiments with flavors of licensing strike me as gentle, moderate, tests, not any attempt to "overthrow incumbent publishers".

As Renee Hopkins at IdeaFlow concurred :

... it doesn't solve an economic problem there's no evidence it was ever intended to solve.

Eldred, extensions, and incentives

Here's a segment of the Eldred losing majority opinion which I found especially intriguing, for the economic aspects. There's interesting logic here. It seems to be a line of reasoning with the logic that since incentives are, as a rule, useful, then any incentive, no matter how trivial the overall effect, should be treated as useful, since incentives in general are useful. That is, there's no concept of diminishing returns, in terms of balance.

15 JUSTICE BREYER urges that the economic incentives accompanying copyright term extension are too insignificant to "mov[e]" any author with a "rational economic perspective." Post, at 14; see post, at 13ñ16. Calibrating rational economic incentives, however, like "fashion[ing] . . . new rules [in light of] new technology," Sony, 464 U. S., at 431, is a task primarily for Congress, not the courts. Congress heard testimony from a number of prominent artists; each expressed the belief that the copyright system's assurance of fair compensation for themselves and their heirs was an incentive to create. ...
[Start with discussion of this incentive]

We would not take Congress to task for crediting this evidence which, as JUSTICE BREYER acknowledges, reflects general "propositions about the value of incentives" that are "undeniably true." Post, at 14.
[LEAP to discussion of any incentive]

Congress also heard testimony from Register of Copyrights Marybeth Peters and others regarding the economic incentives created by the CTEA. According to the Register, extending the copyright for existing works "could . . . provide additional income that would finance the production and distribution of new works." House Hearings 158. "Authors would not be able to continue to create," the Register explained, "unless they earned income on their finished works.
[More discussion of any incentive]

The public benefits not only from an author's original work but also from his or her further creations. Although this truism may be illustrated in many ways, one of the best examples is Noah Webster[,] who supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary." Id., at 165.
[Now ending with incentive in general, and more in this vein]

Look at the "best example" image here, the lone author, supporting "his entire family". But even before this copyright extension, he'd have been dead for 50 years before the copyright would have expired.

It's interesting that the example of "Disney" does not appear. Instead we are treated to the examples of authors, who in fact benefit least from the extension at all (since they'd be long-dead). As opposed to corporations, which are immortal. I think this is the best example of authors being used as an excuse.

Bad bits from the Eldred opinion

As I read, I've been picking out bad bits from the Eldred losing majority opinion. There's many of those.

"limit times" means finite-yet-unbounded:

I call this a "legal hack" :

Petitioners contend that even if the CTEA's 20-year term extension is literally a "limited Tim[e]," permitting Congress to extend existing copyrights allows it to evade the "limited Times" constraint by creating effectively perpetual copyrights through repeated extensions. We disagree.

As the Court of Appeals observed, a regime of perpetual copyrights "clearly is not the situation before us." 239 F. 3d, at 379. Nothing before this Court warrants construction of the CTEA's 20-year term extension as a congressional attempt to evade or override the "limited Times" constraint.16 Critically, we again emphasize, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to "limited Times" that the 1831, 1909, and 1976 Acts did not. ...

It's up to Congress:

The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain. As respondent describes, see Brief for Respondent 37 n. 38, a key factor in the CTEA's passage was a 1993 European Union (EU) directive instructing EU members to establish a copyright term of life plus 70 years. EU Council Directive 93/98, p. 4; see 144 Cong. Rec. S12377 n. S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch).

Retroactivity is fine:

On the issue of copyright duration, Congress, from the start, has routinely applied new definitions or adjustments of the copyright term to both future works and existing works not yet in the public domain.19 Such consistent congressional practice is entitled to "very great weight, and when it is remembered that the rights thus estab- lished have not been disputed during a period of [over two] centur[ies], it is almost conclusive."

Eldred loss, CTEA win, part 1

Copyright extensions have won, Eldred has lost (see Copyfight). I'm reading the majority opinion now. I'm recalling my much earlier posting on Trying to think like a conservative Supreme Court justice on copyright I'll repeat that material here now, as it seems to have been prophetic:

As the saying goes, prediction is difficult, especially about the future. Here's my worries about the Eldred case:

There's something interesting in the logic the Supreme Court uses in copyright vs. the First Amendment, e.g. where in the past they've claimed in the Harper & Row case:

In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.

It doesn't sound as if they're going to be amenable to First Amendment arguments, stirring as those may be.

The Court can duck the issue of "limited times" becoming finite-yet-unbounded, by saying the issue isn't absurd yet. If they have to face it again, in another twenty years, when (likely, not if) copyright terms are extended another twenty years, then that's someone else's problem.

There's an avenue for the court to slap down the copyright changes as exceeding copyright's power. But the famous recent time they did this, the Lopez case, that was about guns, a topic which stirs a certain passion in many conservatives, which copyright cannot match.

I've basically been trying to think like a conservative Supreme Court justice, and not found reason for optimism.

Truce != Non-Aggression Pact

There's been a great deal of discussion today about some sort of "compromise" between several content-industry trade groups and technology industries (see Copyfight summary)

I've been busy, so haven't time to write at length. But I can't resist one remark:

Like the one between Germany and the Soviet Union (I'm going to pay for that analogy!)

Creative Commons and "economic problem"?

Arnold Kling of The Bottom Line wrote:

I see Creative Commons as a form of 1960's protest theater, not as something that solves a real economic problem.

Hmm. Is Creative Commons trying to solve an "economic problem"? Or a "legal problem"? Umm, which "economic problem"? It seems to me that Creative Commons is about proving that the optimal setting for creativity is not infinite copyright. That's a social problem, not an economic one.

More on "Replace Copyright with Watermarks, Taxes"

Edward W. Felten writes in reply to my previous comment on Fisher's copyright proposal, that, paraphrased, the problem is not necessarily forcing people to use the reporting system, but in keeping them from cheating with it. In effect, not too little use, but too much use (or corrupted use). Well, either way, we have a beautiful theory slain by an ugly fact.

But even if there was perfect sampling, I think there's a major obstacle in making the money numbers work. HOW MUCH of a tax is going to be necessary? And on what? Again, the "Audio Home Recording Act" had tried a workable answer - primarily, "digital recording media". That at least attempt to scale, as recording media is consumable. I'm not sure how well it held up as media prices plummeted. But "bandwidth", although taxable, is typically flat-rate for consumer quantities, and varies dramatically for video versus audio (so any tax scaled for video likely won't work for audio, and vice-versa). I'd really like to see some numbers attached to the idea. These are the sorts of grubby details that tend to sink appealing speculations.

By the way, did anybody notice that Fisher is proposing the dreaded pay-per-view society?

Reply to "Replace Copyright with Watermarks, Taxes"

Donna Wentworth at Copyfight asks for thoughts on the following music proposal:

Fisher's first choice, he said, would be to recognize that copyright law is increasingly dysfunctional for handling music royalties and to (1) Authorize artists to insert simple watermarks in their creations, (2) Tax, at the multilateral or national level, things such as ISP access and various technologies upon which music is performed, (3) Count the frequency with which each digital product is consumed, (4) Distribute revenue from the taxes in the proportion in which the various products are accessed. Once the system is in place, he said, copyright law can be "lifted."

I think the general outlines are good, and many people (including myself :-)) have said vaguely similar things in the past. However, the devil is in the details. In particular, I've emphasized point #3 for a reason. HOW does he intend to "Count the frequency with which each digital product is consumed"? Super-spyware? Require every player to recognize the watermark? That would of course require non-watermark-responding players to be illegal, right ... (umm ... didn't we just go through this?)

Don't get me wrong, again, the overall idea, of some sort of mandatory license and statistical royalties seems to be the right thing. However, getting the details correct is the tough part. Arguably, this idea worked reasonable well in the "Audio Home Recording Act", with a tax on that digital recording media. And maybe Fisher's riffing off of it.

But if so, it's a riff in a "visionary" manner, where the details are being neglected for the Grand Idea. It's one thing to tax digital tapes, where there's a discrete object, and the tax is small compared to the price. But what is "various technologies upon which music is performed"? The $10 (?) for the motherboard sounds chips? The speakers? He's not planning to tax free-software Linux players as a "technologies", I hope (I'm having a bad DeCSS flashback here, with code as technology!) The bandwidth? It seems like there's just not enough money there.

Maybe he can make it work. But the acid test for any proposal is to work with free (in both speech and beer) software, and come up with some in-the-ballpark numbers.

DRM and Nothing-Personal-Just-Business

Edward W. Felten has some comments dissecting a New York Times article regarding Studios Using Digital Armor to Fight Piracy . I found the article reasonably straightforward. I don't agree with the executive's positions therein, but it's not as if they are fatuous.

For example:

"We have zero objection to anyone's ability to duplicate, to record, to play back and to save any copy- able content whatsoever," said Peter Chernin, the president of 20th Century Fox. "But we'd be idiots not to be wary of the risks that come with that ability, and of the vulnerability of those of us supplying digitally unprotected films and shows."

And Felten comments:

Probably what he means is that Fox doesn't object to personal use, but they will try to regulate personal use anyway, because a ban on many personal uses is an unavoidable side-effect of the regulation they seek. If so, then "we have zero objection" is irrelevant at best, and misleading at worst.

It seems clear to me, especially in context of the article discussion of DRM, copy restrictions, the problems they're causing, and so on. Chernin is saying that it's not that they are against personal use, but that they aren't interested in protecting it or assuring it per se, if that conflicts with the distribution controls they want imposed. In his statement, I heard an echo of the executive's cliche "Nothing personal, it's just business" (pun intended!). When executives say this, they mean that don't hate you per se, but that their interests are opposed to your interests, and the negatives to you are regarded as subsidiary to the positives for them. Not nice, but not unclear at all.

Copyright "harmonization" and recordings

Edward W. Felten discusses a New York Times article regarding European Copyrights Expiring on Recordings From 1950's, and observes:

There is another irony here. According to today's article, because of the disparity in copyright terms, "The [RIAA] is trying to persuade European Union countries to extend terms of copyright." Recall that U.S. copyright terms are longer, in part, because of the 20-year extension passed a in 1998. And yet, according to a February 19, 2002 article in the New York Times, "Support for the [1998 U.S.] extension also came from those who argued that it was necessary to match the copyright term granted by the European Union."

The key point to realize here is that the copyright terms were different for books and recordings. For books, the EU had a longer copyright term than the US, but for recordings, the EU had a shorter copyright term. Enter "harmonization". Does this mean the terms get set to the longer, shorter, or meet in the middle? The RIAA desired answer seems to be "maximum of every set". There's a nice article about these issues with a Harmonization Chart

This is another lesson in the failure of the thought that "regulatory arbitrage" meant the effect of conflicting laws tended to the minimum. Rather, again, in some cases, the net result is the maximum.

New report on Copyright and Free Expression from FEP

"The Progress Of Science And Useful Arts":
Why Copyright Today Threatens Intellectual Freedom

(press release)

"NEW REPORT ON COPYRIGHT & FREE EXPRESSION - Music swapping -- encryption -- the frozen public domain -- where should we draw the line between rewarding creativity through the copyright system and society's competing interest in the free flow of ideas? Check out the Free Expression Policy Project's newest policy report,

"The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom.

It covers "fair use," copyright term extension, the Digital Millennium Copyright Act, and much more -- without legalese."

[Disclaimer - I'm mentioned and am one of the people thanked in the report]

Underwriting content?

I saw an interesting proposal today about funding creative works via underwriting content. Hmm. There might be something here. Not a tip-jar. Rather, along the lines of announcements of "This program was brought to you by ...". Currently, only fairly large corporations can do that. But there might indeed be some value in making it available cheaper. That is, having classical artist patronage, but at a more affordable level. Tip jars and donations rely mostly on altruism which has some limitations. But underwriting is advertising of a gentle sort, which is not entirely altruistic. Hmm ...

DMCA, more on substantial non-infringing use

Further on the frequently-seen DMCA and substantial non-infringing use argument, this passage from the eBooks ruling should be studied (emphasis added);

The inescapable conclusion from the statutory language adopted by Congress and the legislative history discussed above is that Congress sought to ban all circumvention tools because most of the time those tools would be used to infringe a copyright. Thus, while it is not unlawful to circumvent [ed note - ONLY "rights" restrictions] for the purpose of engaging in fair use, it is unlawful to traffic in tools that allow fair use circumvention. That is part of the sacrifice Congress was willing to make in order to protect against unlawful piracy and promote the development of electronic commerce and the availability of copyrighted material on the Internet.

Accordingly, there is no ambiguity in what tools are allowed and what tools are prohibited because the statute bans trafficking in or the marketing of all circumvention devices. Moreover, because all circumvention tools are banned, it was not necessary for Congress to expressly tie the use of the tool to an unlawful purpose in order to distinguish lawful tools from unlawful ones. Thus, the multi-use device authorities cited by defendant, such as the statutes and case law addressing burglary tools and drug paraphernalia, offer defendant no refuge. The law, as written, allows a person to conform his or her conduct to a comprehensible standard and is thus not unconstitutionally vague.

DMCA and substantial non-infringing use

I've noticed in some of the DMCA-exemption discussions, that one of the very first things people tend to do is basically re-invent the "capable of substantial non-infringing use" argument - that is, if something has any use at all which is non-infringing, that should dominate. This has been thought-of before, and addressed. The principles are worthy, but arguing it as just as theory isn't so simple. It's very important to read what has gone before, in the 2000 DMCA rulemaking results (emphasis added) :

Proponents of such an exemption make two related arguments. First, some commenters argue that using Section 1201(a)(1) to prohibit circumvention of access controls on works that are primarily factual, or in the public domain, bootstraps protection for material that otherwise would be outside the scope of protection. It would, in effect, create legal protection for even the uncopyrightable elements of the database, and go beyond the scope of what Section 1201(a)(1) was meant to cover. An exemption for these kinds of works, proponents argue, is necessary to preserve an essential element of the copyright balance `` that copyright does not protect facts, U.S. government works, or other works in the public domain. Without such an exemption, users will be legally prevented from circumventing access controls to, and subsequently making noninfringing uses of, material unprotected by copyright.

...

On the record developed in this proceeding, the need for such an exemption has not been demonstrated. First, although proponents argue that 1201(a)(1)(A) bootstraps protection for uncopyrightable elements in copyrightable databases, the copyrightable elements in databases and compilations usually create significant added value. Indeed, in most cases the uncopyrightable material is available elsewhere in ``raw'' form, but it is the inclusion of that material in a copyrightable database that renders it easier to use. Search engines, headnotes, selection, and arrangement, far from being a thin addition to the database, are often precisely the elements that database users utilize, and which make the database the preferred means to access and use the uncopyrightable material it contains. Because it is the utility of those added features that most users wish to access, it is appropriate to protect them under Section 1201(a)(1)(A). Moreover, all copyrightable works are likely to contain some uncopyrightable elements, factual or otherwise. This does not undermine their protection under copyright or under 1201(a)(1)(A). [footnote] \8\

[footnote] \8\ One commenter suggested an exemption for ``compilations and other works that incorporate works in the public domain, unless the compilation or work was marked in such a way as to allow identification of public domain elements and separate circumvention of the technological measures that controlled access to those elements.'' PH4 (Ginsburg). While this approach could address some of the concerns raised by proponents, it is unclear whether it would be technologically feasible for copyright owners to implement. Furthermore, as discussed below, the Register has not yet been presented with evidence that there have been or are likely to be adverse impacts in this area.

How To Win (DMCA) Exemptions And Influence Policy

Date: Mon, 25 Nov 2002 08:07:11 -0800
From: Lee Tien
Subject: guide to DMCA "exemption" process -- 3 weeks left
To: Law & Policy of Computer Communications

EFF is pleased to present a guide to the DMCA "exemption" process.

http://www.eff.org/IP/DMCA/finkelstein_on_dmca.html

Under this process, the Copyright Office of the Library of Congress must make a triennial inquiry regarding adverse effects of the DMCA's prohibition on circumvention on "certain classes of works."

If adverse effects are shown, the office can "exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works." The exemptions only last 3 years.

The author, Seth Finkelstein, is one of the very few people who succeeded in arguing for an exemption (for the act of circumventing access/copy controls on censorware blacklists) in the last round (2000). [The Copyright Office received many comments and rejected the overwhelming majority of them; I think in the end only 2 or 3 exemptions were created.]

The upcoming round is the next one, for 2003. "Written comments are due by December 18, 2002."

This is about the only part of the DMCA that can mitigate its fell sway, so if you have any interest in the topic at all, it's well worth reading.

Lee
--
**********************************
Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation

Copyright And Culture Forum Quotes

The audio for the recent MIT copyright and culture forum is now available

I transcribed a few of my favorite quotes (I was there)

Siva Vaidhyanathan:

"Even though dozens of young lawyers and law students were writing about rap sampling, most of them hadn't a clue about how the music actually works" (12:20)

"It seemed to me that this is the sort of use, the sort of transgressive use, without permission, often in a very critical way, that American culture supports, celebrates, rewards. But apparently American law had a big problem with it." (13:15)

Jonathan Zittrain:

"If you substitute the words "garbage heap" for public domain, you get the sense of what they're figuring when something loses it's copyright." (43:07)

(about the movie It's A Wonderful Life being rerun so many times since it's in the public domain)
"Which actually led Judge Posner to write an article saying that copyright is good, because it prevents us from getting sick of things by restricting their availability. I'm getting somewhat sick of Judge Posner, but that's OK." (44:18)

And I (Seth Finkelstein) can be heard asking a question from the audience:

"Given that we've talked about what the problem is, what do you think are the best ways to get to the result that we want to have?" (1:23:46)

Fritz's Hit List, my intended contribution

Ed Felten has put Fritz's Hit List. on hiatus. Though I didn't think it was a killer argument, per discussion, again, it was fun. So I'll note what I sent in as my suggestion, just for amusement:

The Furby

From the famous NSA "Furby Alert":

As harried parents scrambled in the weeks before Christmas to get their hands on these homely, high-tech cyberpets that supposedly repeat what they hear, the supersecret spy agency put out a "Furby Alert" on its internal intranet in early December and banned the Furby from Fort Meade.

"Personally owned photographic, video and audio recording equipment are prohibited items. This includes toys, such as 'Furbys,' with built-in recorders that repeat the audio with synthesized sound to mimic the original signal," the Furby Alert warned NSA workers. "We are prohibited from introducing these items into NSA spaces. Those who have should contact their Staff Security Officer for guidance."

And when you think about it, the NSA is right. It's funny to think of state secrets being smuggled out in a Furby. But, the incongruity doesn't mean it couldn't happen.

Copyright And Culture Forum

I was at the copyright and culture forum, the talk mentioned today in copyfight and furdlog. I'm not going to attempt to summarize it. The speakers were great, the discussion was excellent, the topic was timely, etc.

Instead, I'm going to write about what was on my mind as I listened, and what I asked: What's the optimum strategy for effective change? I'm awed by the amount of money on the copyright-control side. And they have lawyers too, in fact more of them, and can pay them higher fees.

The answer (from the speakers) seemed to be about working on several fronts: popular organizing, lobbying, public litigation, and technical innovation.

That was good as far as it went. I kept hearing in my mind a lot of echoes from the old "crypto wars" (the right to use encryption). That was mostly won, by a combination of lobbying/litigating over technology. Of course, as I try to make people aware, the legal grounds there were "national security" rather than "property". And that's a world of difference.

ACM DRM Workshop

From James S. Tyre :

[dvd-discuss] ACM DRM Workshop

To: dvd-discuss(at)eon.law.harvard.edu
Subject: [dvd-discuss] ACM DRM Workshop
From: "James S. Tyre" <jstyre(at)jstyre.com>
Date: Wed, 06 Nov 2002 17:24:14 -0800

Just FYI, the ACM DRM Workshop is upcoming. (Most) all of the papers to be presented can be downloaded now from the Workshop's site, http://crypto.stanford.edu/DRM2002/prog.html. Many sound interesting, but I've only read one so far, and it is worth reading:

3:50pm - 4:15 The darknet and the future of content distribution
P. Biddle, P. England, M. Peinado, and B. Willman (Microsoft Corporation)

---

James S. Tyre mailto:jstyre(at)jstyre.com
Law Offices of James S. Tyre 310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512 Culver City, CA 90230-4969
Co-founder, The Censorware Project http://censorware.net

Richard Stallman essay: Words To Avoid

Richard Stallman has an essay Words To Avoid which should be better-known. It make many interesting points about the implications of certain terms. For example:

`Digital Rights Management''

``Digital Rights Management'' software is actually designed to impose restrictions on computer users. The use of the word ``rights'' in this term is propaganda, designed to lead you unawares into seeing the issue from the viewpoint of the few that impose the restrictions, while ignoring that of the many whom the restrictions are imposed on.

Good alternatives include ``Digital Restrictions Management'' and ``handcuffware.''

And

`Intellectual property''

Publishers and lawyers like to describe copyright as ``intellectual property.'' This term carries a hidden assumption---that the most natural way to think about the issue of copying is based on an analogy with physical objects, and our ideas of them as property.

But this analogy overlooks the crucial difference between material objects and information: information can be copied and shared almost effortlessly, while material objects can't be. Basing your thinking on this analogy is tantamount to ignoring that difference.
...

It's interesting reading.

Digital-Rights-Management / Newspeak article

I've adapted some earlier entries on the subject of Digital-Rights-Management matching Newspeak, into a small stand-alone essay on my site. This is now being run in this month's edition of the webzine Ethical Spectacle. Note Lawmeme also liked the idea.

Wishful Thinking, Leeway, and Copy Control

Ed Felten has two posts which I think make an unexpected point in contrast - Wishful Thinking, roughly regarding universal copy-control in hardware, and "leeway" about making laws function effectively.

I suggest that applying the "leeway" concept to the Wishful Thinking post yields an interesting result.

That is, in a way, the spokesman for Hollings, regarding controls, is more correct than is being granted:

Andy Davis, a spokesman for Mr. Hollings, said the technology-minded critics of the bill were "missing the thrust of the senator's argument," which is that there is need for more protection of copyright works if online content and broadband Internet access are to flourish

This is a "politics" reply, which focuses on the short, snappy soundbite, i.e., what-about-the-children, it's-against-theft, motherhood-and-apple-pie, etc. But that shouldn't blind us to the existence of an argument underneath it all.

The idea of Felten's Fritz's Hit List, is mocking Hollings by applying the law as if there were NO "leeway" in it. That's fun.

But I think this is being mistaken for a killer argument that any mandatory copy control proposals must fail, because they must blindly be applied in the most extreme and literal sense. That's appealing to the technical mindset, because one can equivalence all general computers at some abstract level. But it's a much weaker argument in practice.

What the spokesman doesn't want to say, because it would be horrible press-speak, is the following: "Look, this isn't about talking dog collars. It's about locking down what 99.9% of the population uses for business or entertainment. The hard problem is coming up with a solution that works for all of Hollywood and Intel and Microsoft. The practical difficulty is there, not in dog collars."

I don't think it's necessarily correct to believe that this is an unsolvable problem, because we postulate there can be no leeway in the required control for their purposes. Their goal is working the difference between theory and practice.

Compulsory licensing as attempting statistical payments

The ideas of solving the copyright logjam from Ed Felten's proposal of compulsory licensing music, and Ernest Miller's riposte of compulsory licensing pornography, seem to me to touch on something subtle - statistical payments.

Consider the typical hassle with micropayments - every penny, perhaps even every micropenny has to be shipped-around and accounted-for. That's true by definition. Nobody has figured out how to do this with any efficiency.

Perhaps we're looking at the problem the wrong way. Maybe a better way is to try to have some system that just comes out roughly even in an overall statistical sense. I think that's what being groped at (pun unintended) with the above ideas.

I don't know how to do this myself (if I did, I'd be doing it ...). By my suggestion is to, indeed, not special-case it to music, or pornography, or any particular item. Rather, if we somehow lift the constraint that every transaction must be paid, the focus was merely ensuring that overall, there was enough payment in the system somewhere to make it viable, could we have a workable protocol?

Can You Trust Your Computer? - essay by RMS

Richard Stallman has a great essay about the issues surrounding "Trusted Computing"/Palladium/DRM, etc:

Can You Trust Your Computer?

Notably, it touches on many issues that have been discussed in the past few weeks, such as general vs. restricted purpose: (my emphasis)

"Treacherous computing" is a more appropriate name, because the plan is designed to make sure your computer will systematically disobey you. In fact, it is designed to stop your computer from functioning as a general-purpose computer.

The language aspect:

The presentation made frequent use of other terms that we frequently associate with the context of security, such as "attack," "malicious code," "spoofing," as well as "trusted." None of them means what it normally means. "Attack" doesn't mean someone trying to hurt you, it means you trying to copy music. "Malicious code" means code installed by you to do what someone else doesn't want your machine to do. "Spoofing" doesn't mean someone fooling you, it means you fooling Palladium. And so on.

And all the wonderful things we'll be able to do with these new capabilities:

Making sharing impossible is bad enough, but it gets worse. There are plans to use the same facility for email and documents -- resulting in email that disappears in two weeks, or documents that can only be read on the computers in one company.

Stirring:

There are proposals already for U.S. laws that would require all computers to support treacherous computing, and to prohibit connecting old computers to the Internet. ... To oppose treacherous computing, we must join together and confront the situation as a collective choice.

Digital-Rights-Management indeed matches Newspeak

In further replying to Ed Felten regarding Seth Schoen Makes a Doubleplusgood Point, and to my point about Restricted-Purpose Language - note the description of Newspeak matches the purpose of Digital-Rights-Management, on the intended expression side in addition to the suppression side.

That is, for Newspeak, we have:

Its vocabulary was so constructed as to give exact and often very subtle expression to every meaning that a Party member could properly wish to express, while excluding all other meanings and also the possibility of arriving at them by indirect methods.

Don't we have, exactly, for Digital-Rights-Management:

Its vocabulary was so constructed as to give exact and often very subtle expression to every business model that a content industry member could properly wish to sell access, while excluding all other access and also the possibility of arriving at them by indirect methods.

Remember, this was and will be heavily backed by law. Un-dmca codespeak doubleplusungood for the speaker.

This works, though:

Digital-Rights-Management ... the Newspeak of the 21st century.

More on The Truism of the Restricted-Purpose Language

Ed Felten's written a reply to my item about " The Truism of the Restricted-Purpose Language", ending:

I believe that code is speech, and I believe that its status as speech is not just a legal technicality but a deep truth about the social value of code. What the code-regulators want is not so different from what the speech-regulators of 1984 wanted.

I agree with all of this!

But I'd say the comparison works well for exactly the opposite reasons as intended. Newspeak doesn't conjure up images of the idea that you can't make a language where certain concepts are unexpressible, therefore the Party was silly and stupid to even try. Rather, it conveys images that you can have an official system which is restrictive and oppressive and works to impoverish the vast majority of the population. That is, the comparison to Newspeak is not "it can't work", but "it can work, so beware".

Suppose we remove the literary flourishes from the description of Newspeak. That is, rather than proclaiming:

The purpose of Newspeak was ...to make all other modes of thought impossible. It was intended that when Newspeak had been adopted ... a heretical thought ... should be literally unthinkable ...

Let's have a more qualified, less hyperbolic:

The purpose of Newspeak was ...to make all other modes of thought cumbersome and onerous. It was intended that when Newspeak had been adopted ... a heretical thought ... should be difficult to articulate, easy to be derided and mocked, readily attacked when conveyed to others.

This lacks the punch and flourish of the stark statement of impossible. But it's a much more accurate description of what would likely be the case in practice.

And the idea of computer-language libraries in fact supports this point. What's one big problem with C and C++? The fact that there are so many different libraries which do similar, but not quite identical, functionality. Merely having the ability to extend the language by new definitions is not adequate. There must also be a process to have those definitions accepted in "society" as common, otherwise the process of communication breaks down. Every time a program needs to ported from one library to another, it's a proof that there's a big difference between having the ability to express something, and doing it in a fashion which can be effectively used by other people.

Let's also remember that the strictures of Newspeak weren't going to be enforced by its language merits. Rather, people who started creating unauthorized language-extensions were going to quickly become unpeople - rather like the idea of the DMCA, etc. that programmers or researcher who publish unauthorized expressions are going to be fined/jailed.

From the Eldred oral argument transcript

I've now gone through the Eldred oral argument transcript. If I were to put my finger on the key point, I think it's here:

JUSTICE BREYER: Why -- I mean, I think you have a point on this equity principle. I wonder, is there any review there? That is, suppose you have a statute, as this one arguably is, where 99.9 percent, many billions of dollars of benefits, are going to the existing holders of copyright on grounds of equity, and the effect of the statute in eliciting new works is near zero. I mean, that would seem -- where this equity idea is the camel and the production idea is the gnat, and is there any -- can we say something like that, or does Congress have total leeway in respect to --

GENERAL OLSON: Well, it --

JUSTICE BREYER: -- who they want to give the money to, basically?

When Breyer asks "... is there any review there", he's putting the Constitutional question in a nutshell - basically, is the Court going to say that Congress has gone too far? Several justices seem to think Congress has, but are they going to make that law? I'm uneasy with predicting that the conservatives are going to do something which is bad for Disney.

I'm heartened, though, to see these comments about "limited times",

JUSTICE SCALIA: General Olson, you say that the functional equivalent of an unlimited time would be a violation, but that's precisely the argument that's being made by petitioners here, that a limited time which is extendable is the functionable, functional equivalent of an unlimited time, a limited time that 10 years from now can be extended, and then extended again, and extended again. Why -- their argument is precisely that, a limited time doesn't mean anything unless it means, once you have established the limit for works that have been created under that limit, that's the end.

Great minds think alike? :-)

The Truism of the Restricted-Purpose Language

I have to disagree strongly with the idea that the best example for "The Fallacy of the Almost-General-Purpose Computer" is "The Fallacy of the Almost-General-Purpose Language" In fact, I'd say this example undercuts the point, and actually strongly argues the reverse.

I think we get too wrapped-up in the idea of "impossible", along the lines of the idea that Newspeak was to make it impossible to speak frankly about politics. Yes, right, nothing will ever make it "impossible". But my own experiences with Libertarianism thoroughly convince me that it's certainly common to have a political language that makes it very difficult to express certain thoughts. I can't remember how many times a Libertarian has told me that a concept is invalid, because the English sense of the word used to describe the concept doesn't have that sense in the specialized argot of Libertarianism. As in, for example "censorship means ...". The problem is that the word "censorship" has several different meanings in English, but only a single meaning in Liberspeak ("by the government"). Thus in so many conversations, it's a massive chore to convince the Libertarian that just because their definition is restrictive, doesn't make the concept invalid _per se_. And the Libertarian is likely to endlessly repeat some variant of the idea that because the word in Liberspeak has only a specific Libermeaning, other concepts are invalid. It's not utterly and completely beyond human achievement to explain the differences between Liberspeak and English. But wow, it's an amazingly difficult task, and requires a great deal of analytic and writing skill. It's the best example I've ever seen of how Newspeak would actually function in action.

There's a computer-language version of this too. After all, what's the whole point of the Software-As-Speech argument? Programming languages are designed to make it easy to express certain abstract concepts, where English or other languages don't work well. It's not impossible to express the concept in those same languages, but it is much harder and more error-prone. And then it follows that other concepts may be more difficult to express in the programming language. I remember a parody song, where the punchline was "We're a string-processing in FORTRAN shop". Why is that considered hilarious? Because FORTRAN, as a language is so ill-suited for string-processing as to make doing it typically so difficult as to be a joke. Now, it's not impossible to do string-processing in FORTRAN - but it is certainly cumbersome and hard.

So in the abstract, what Hollywood wants might be impossible. But I'm starting to think the focus on the impossibility is leading to ignoring a much more frightening practicality.

Agendas, and Information Wants To Be Paid-For

One of people's first reactions to the increase in communications from the growth of the Internet, has always been roughly "Oh my God - there's too much information available - we've got to find some way to control it, some means where people who shouldn't have certain information, can be prevented from being able to read it.".

This reaction was not, as sometimes imagined, exclusive to governments concerned with political subversion. In fact, it was a very standard reaction by many people, regarding many types of information (sex, racism, etc.)

It's entirely logical, even expected, that copyright-based businesses should have exactly this reaction too, when faced with exchanges of information which they feel are threatening - namely, that which has not been paid-for.

Explaining General Purpose vs. Special Purpose Computers

An item from Ed Felten asks how to give a "simple, non-technical explanation" for the truism:

Either you make a general-purpose computer that can do everything that every other computer can do; or you make a special-purpose device that can do only an infinitesimally small fraction of all the interesting computations one might want to do. There's no in-between.

Here's my try at such an explanation, geared to Washington concepts:

Suppose you want telephone calls answered, for an office. You can either hire a human and have that person be a receptionist, or buy an automated telephone answering machine. The human receptionist who has the task of answering telephone calls will also be able to answer letters or do any other clerical task. The automated telephone answering machine will never be able to do anything other than answer telephone calls. There is no in-between, where there's a machine which will do all general clerical work, but nothing else.

Moreover, to continue the analogy, the human receptionist, as a consequence of general-purpose ability, will also be able to tell unauthorized people who has been telephoning the office. And perhaps even what the contents of the telephone calls contain (copying!). An automated telephone answering machine will never be able do that either (on its own).

This is simply two sides of the same coin of having general-purpose ability. Note this problem has been well-known since ancient times - where rulers would maim servants in various ways (e.g. cutting-out the tongues of slaves) in brutal attempts to prevent what might be called nowadays, unauthorized information transfer. Recent legislative proposals are perhaps the modern equivalent of those crippling practices.

Copyright vs First Amendment strategy in Eldred

I don't usually bother pointing to articles which are publicized several orders of magnitude better than this poor blog. The following message is a mailing-list gem. Anyone who isn't overloaded with the Eldred copyright case by now should read law professor Peter Junger's excellent analysis of the First Amendment strategy.

It's also useful to keep in mind the "First Amendment" discussion section in the case's most recent opinion.

Attempting optimism on the Eldred copyright case

I decided to see if I could come up with a good optimistic well-grounded argument for the commons side to prevail in the Eldred copyright case. The best place to look seemed to be in the last round of court hearings, the case's dissent. Two judges dissented, what were the reasons? You can't go too far wrong quoting a bona-fide dissent. The most promising material here seemed to be the following:

Contrary to my colleagues, I do not accept that it is sufficient for Congress to merely articulate some hypothetical basis to justify the claimed exercise of an enumerated power. The Copyright Clause only bestows the power "to promote the progress of science and useful arts." In exercising this power, Congress "may not overreach the restraints imposed by the stated constitutional purpose," which is "the promotion of advances in the 'useful arts.' " Graham v. John Deere Co., 383 U.S. 1, 5, 6 (1966). I accept that extending copyright terms for future works may well increase creative efforts at the margin. Once a work is published, however, extending the copyright term does absolutely nothing to induce further creative activity by the author--and how could it? The work is already published. A simple finding by Congress to the contrary is not sufficient to demonstrate that the exercise of that power is "necessary and proper." As the Supreme Court noted in Lopez and again in Morrison, that Congress concluded a given piece of legislation serves a Constitutional purpose "does not necessarily make it so." United States v. Lopez, 514 U.S. 549, 557 n.2 (1995) (citation omitted); United States v. Morrison, 120 S. Ct. 1740, 1752 (2000).

But the US vs Lopez case was about guns, and now I see the US v. Morrison case is about "gender-motivated violence".

Bluntly, the losers from those decisions were going to be gun-control advocates in the former, and violence-against-women activists in the latter. Here, the biggest loser would be Disney. Maybe that's an overly political view. But it's something to think about.

Trying to think like a conservative Supreme Court justice on copyright

Well, everybody's talking Eldred. So I might as well do it too.

As the saying goes, prediction is difficult, especially about the future. Here's my worries about the Eldred case:

There's something interesting in the logic the Supreme Court uses in copyright vs. the First Amendment, e.g. where in the past they've claimed in the Harper & Row case:

In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.

It doesn't sound as if they're going to be amenable to First Amendment arguments, stirring as those may be.

The Court can duck the issue of "limited times" becoming finite-yet-unbounded, by saying the issue isn't absurd yet. If they have to face it again, in another twenty years, when (likely, not if) copyright terms are extended another twenty years, then that's someone else's problem.

There's an avenue for the court to slap down the copyright changes as exceeding Congress's power. But the famous recent time they did this, the Lopez case, that was about guns, a topic which stirs a certain passion in many conservatives, which copyright cannot match.

I've basically been trying to think like a conservative Supreme Court justice, and not found reason for optimism.

Another "limited times" thought

Another thought on "limited times":
The following is not a strong argument, because the legal contexts aren't identical. But I think there's a kernel of an idea here. Is there a way to have " limited times" be thought of in the same manner as the Constitution's Fourth Amendment prohibition against "unreasonable searches and seizures", or the Eight Amendment "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."?

Those prohibitions would be nullified in practice if one adopted the view that "unreasonable" is up to Congress to determine, or "excessive", "cruel", "unusual", are all purely a matter of legislative discretion. Though a problem here is on occasion, that very nullification may arguably have happened.

Another obvious flaw here is that those prohibitions are restrictions, but the copyright clause is a grant of power, so they can't be treated identically.

So I'm not putting forth that this ideas works as stated. But maybe it'll inspire something better.

"Free Mickey" day

October 9 is Free Mickey day (that's free as in speech, not free as in beer). I've been musing more about the "limited times" issue in copyright. Someday, I think the question of "how much" is going to have to be answered strongly and directly by the intellectual-commons side. The finite-yet-unbounded side has given their answer - infinite in practice, not as long as one penny of profit remains. But I'm thinking the opposition might someday need to have a specific rebuttal.

Palladium and selling oneself into slavery

Regarding Palladium and similar systems, Seth Schoen recently mused:

I was writing about trusted computing and the claim that trusted computing systems give you new features without taking away features you had before. ...

In particular, the suggestion is that you can run any software which you could run before. ...

So there seems to be a clear technical sense in which you can do what you did before and you are only gaining capabilities and not losing them.

Still, people who believe this may still believe that Palladium is not a good thing overall for many users, or will still introduce disadvantages. How can that be?

To argue that point by analogy, you'd want to find examples of where gaining something, or possessing something you didn't possess before, is a disadvantage to you in the end.
[Long list follows in entry]

Why overcomplicate things? It seems very simple to me: Any system which allows control where it didn't exist before, can be said to being "gaining" or "possessing" the brand-new ability to enforce that control. Concretely, consider a Libertarian-esque "ability to sell oneself into slavery". Now, you don't have to sell yourself into slavery. But if it's an option - that is, if you gain or possess something you didn't have before, namely, the option of selling yourself into slavery - it should be clear how it can be a disadvantage. An option to give up rights can leave you worse off than not having such an option, via an expectation or arrangement that makes such giving-up of rights, commonplace (which is exactly what these systems are designed to do, enforce the giving-up of usage rights).

A more realistic example is gaining the unchecked ability to request physician-assisted suicide in the case of serious illness. One might ask, as long as it's an option, how can it be a disadvantage? Well, think of a possible interaction with "cost-containment". Suppose an insurer offered a lower premium if you agreed in a contract, that if a suffering a terminal illness, past a certain point, you would request physician-assisted suicide instead of medical treatment ("cost-containment" with a vengeance ...). While this is a somewhat macabre example, the economic logic of it should be clear. As well as the way it could turn out to be a disadvantage.

More humorously, to become, with one click, Bill Gates' Towel Boy, may not be a blessing.

Myself, I'd just say something like "Gaining the ability to sell yourself into slavery is not necessarily good for you.".

"Fox Trot" comic strip about P2P *and* file corruption

Check out the Fox Trot comic strip for September 29 2002. P2P sharing and file corruption as topics (funny too). More significantly, you know that something is reaching public awareness when it's a theme in a newspaper comic strip.

"intellectual property" vs "granted monopoly"

Thought for consideration : We should change usage from "intellectual property" to "granted monopoly".

I'm coming to believe that the term intellectual property is more and more leading to an inability to think about the issue. Copying isn't theft. But what is it? In the case of copyright, it's a violation of the business model of a granted monopoly. This violation may be trivial, or may indeed threaten the business model. But talking of it in terms of property is threatening to crowd out anything else.

More on copyright, "limited times", and "legal hacks"

I received a nice reply (from Derek Slater, a person on the civil-liberties side) about my last entry, where he gently elucidated many key legal differences between copyright clause interpretation and DMCA interpretation. All good material. I didn't mean to give any impression that I was arguing the situations are legally identical in all respects. What I was trying to do earlier was to examine Valenti's copyright comment in terms of implications regarding practice versus formalism. If "'limited' is whatever Congress says it is.", then in practice, that's unlimited, through the method of making "limited" mean something along the lines of "finite (yet not necessarily reached)". A copyright which never expires in practice, is unlimited for business purposes, whether or not it qualifies as limited in a legal sense. Note I'm echoing the Eldred dissent here:

Second, and more importantly, the Court's construction of the Copyright Clause of the Constitution renders Congress's power under Art. I, s 8, cl. 8, limitless despite express limitations in the terms of that clause. ... Under the Court's decision herein, Congress may at or before the end of each such "limited period" enact a new extension, apparently without limitation. As the majority conceded, "[i]f the Congress were to make copyright protection permanent, then it surely would exceed the power conferred upon it by the Copyright Clause." Eldred, 239 F.3d at 377. The majority never explained how a precedent that would permit the perpetuation of protection in increments is somehow more constitutional than one which did it in one fell swoop.

But again, that's the dissent. What strikes me as interesting here, is the way what I call the "finite yet unbounded" interpretation, works around an apparent limit in limit. A geek would call that a "hack". Valenti seems to argue that copyright could be made permanent in all but name (though admittedly the courts don't think we are at that point yet).

But compare the above dissent passage to what Judge Kaplan said about the DMCA, "effectively controls access" argument, in the DeCSS case:

Finally, the interpretation of the phrase "effectively controls access" offered by defendants at trial--viz., that the use of the word "effectively" means that the statute protects only successful or efficacious technological means of controlling access--would gut the statute if it were adopted. If a technological means of access control is circumvented, it is, in common parlance, ineffective. Yet defendants' construction, if adopted, would limit the application of the statute to access control measures that thwart circumvention, but withhold protection for those measures that can be circumvented. In other words, defendants would have the Court construe the statute to offer protection where none is needed but to withhold protection precisely where protection is essential. The Court declines to do so.

Now, I'm NOT saying that these situations are equally valid, and have an identical legal basis behind them. But there did seem to me to be something of the same "hacking" (in the old-style meaning of the word) spirit in the two arguments. That is, nullifying something in practice, by using a definition which reduces the apparent meaning to one having virtually no real-world significance.

If "effectively" meant "successful", then the DMCA would have no power. And if "limited" means "finite yet unbounded", then "limited times" is no practical constraint.

I suppose my point is that what Valenti is doing still strikes me as "legal hack", even if it's a better-premised "legal hack" than the one tried for DeCSS.

Copyright, "limited times", and "legal hacks"

I was thinking about this passage regarding copyright and "limited times", from copyfight:

Jack Valenti on the Constitution's Copyright Clause, quoted in Dan Gillmor's Valenti Presents Hollywood's Side of the Technology Story: "[Just] read Article I, Section 8 of the Constitution, which gives Congress the power to 'promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.' There's no ambiguity...'limited' is whatever Congress says it is."

There's certainly a logical problem here - if "limited" could be a million years, that's not limited in any but the most formal sense. I'm not claiming any special insight on that point, it's been said many a time. However, I was struck by the thinking going on here. It's a mirror of exactly the sort of geek-mindset that tries and fails to come up with a "legal hack". In discussion of the DMCA, I've seen so many programmers say something along these lines: the DMCA language talks about a measure which "effectively controls access", but if such a measure is broken, it must not have been "effective", gotcha, ha-ha. This was in fact addressed as a legal argument in the DeCSS case, and the court didn't buy it all. But it seems the copyright interests are doing precisely the same sort of word-gaming - "limited times", sure, limited to expire 20 years from now, always, an unreachable limit, but still a "limit", gotcha, ha-ha. And so far, they have been prevailing with this argument, though with a shade of dissent.

There's a lesson (politics, or maybe "Critical Legal Studies") in here somewhere.

DRM and lesser vs. both evils

At the risk of repeating myself, I'd like to make one comment about something Ed Felten just said - "... and that what Lessig calls "token based" DRM is a lesser evil than what he calls "copy protection"

Voting, for example, is an exclusive "or" - that is, one candidate winning, means that all the other candidates lose. But here, the control systems being discussed don't have the property that one being implemented means any others will not be also in force. Indeed, it's entirely possible for the ultimate result to be both evils. In fact, object-control plus network-control works together in a very natural belt-and-suspenders fashion.

And this makes a great deal of sense from a Congressional standpoint too. I don't think this discussion has intense politics behind it. But I'd worry if people seriously seemed to get caught up in the idea of actually advocating object-control as a way of supposedly warding-off network-control. I don't think that's being seriously advocated now, just speculated in an academic sense. But I still have the scars from the censorware wars. Beware seductive theory.

The "end-to-end"s versus the means of DRM

Regarding Felten's comments on what is an "end-to-end argument", I took Lessig's reference to "network design" not to be about re-engineering TCP/IP. Instead, I believe the idea was that IF the media industry was given object-control, THEN they'd be happy to go away and not bother about Napster or Aimster or similar, not be concerned about sharing systems. Because they would then feel secure (pun intended) that whatever those sharing systems exchanged, the object-control would prevent unauthorized use. I take this from where Lessig says: "if a technology could control who used what content, there would be little need to control how many copies of that content lived on the Internet"

But to point out the flaw in the above proposition via another way, the statement seems to conflate "content" with "objects". That is, there might be official versions of a song which are controlled objects. But you can be sure, since bootlegs existed even before computers, there will be many, many, unapproved versions in circulation. The technology can control who uses what objects But that's not the same as content.

There's no contradiction at all here in terms of "end-to-end argument". Felten: "If copy-protection is to have any hope at all of working, it must operate on the end hosts". Right. I think Lessig agrees, roughly. The argument is, put the control inside the machines, (via an operating system or hardware which examines objects) AND THEN there will be no problem with the Napster-ilk or other network-based exchange innovations, since the content industry will be able to "trust" that the sharing of controlled content will be prevented ( Lessig: "A different DRM would undermine that push").

But, per Felten: "It must try to keep Aimster ... from getting access to files containing copyrighted material". Right also. That's the flaw in the object-control argument. Because if "wild" objects can still be used and shared, then the network is just as much a threat as before, and still needs to be controlled too (as in Aimster is still a problem).

It's not so much about "end-to-end", but coming to a bad end.

DRM and object control vs network control

I've been reading Lessig's article on Digital-Right-Management, Anti-trusting Microsoft, and various comments I found the article very clear. Let me try to boil it down, in my prosaic paraphrase. I believe the key ideas are as follows:

1) Usage control can be either object-based or network-based.
2) IF control is object-based, THEN it doesn't have to be network-based.
3) Coming from Microsoft doesn't automatically make it a bad idea.

In some reactions, I'd say too much emphasis is being placed on aspect#3. Now, being suspicious of anything from Microsoft is formally an ad-hominem argument, though that suspicion is also prudent. This Microsoft element is generating much attention, since it's at the start of the article, expressed in a humorous way, and has the word "Microsoft" in it. It's generally great pundit-fodder, allowing asking how truly evil is Microsoft in the first place, whether it's thought to be more evil than it deserves versus an overwrought image of evil, and then whether such a stench of evil is clouding our perceptions.

However, this isn't the fundamental problem with the piece, as I see it. The difficulty is in aspect #2. That portion is an appealing thought. The argument runs IF, IF, IF, the desired usage control is put in objects THEN THEN THEN, the network control is unnecessary.

It's such a seductive proposition. I've seen the idea so many times in various contexts. Years ago, it was roughly the same scheme of argument I called censorware-is-our-saviour, during the time censorware was being promoted by some people as a "solution" to censorship laws. Implement control locally, it's thought, and the powers at issue will let the global net alone.

Every time I see one of these arguments, I have the same question:

Show me that the other side believes it.

Not that one would think the other side should accept it, based on the theory which has been elucidated. No, no, no, that is not my question, why they'll be happy. Don't repeat back to me the theory. I understood the theory. Rather, show me some evidence that the other side does in fact consider this enough. Because perhaps the theory is wrong. Here, perhaps they won't consider object-control to be sufficient, and will rather take it as precedent for network-control in addition.

And that's the subtle flaw in aspect #1. The argument is:

1) Usage control can be either object-based OR network-based.

I think the reality is best rendered:

1') Usage control is desired as object-based AND network-based.

The theory fails in the same way for all these types of arguments - they start out by setting up two things as opposites (object versus network), which the other side sees as complements (object plus network). In programming terms, it argues an exclusive "or", where the opponent believes in an inclusive "and".

What I think will happen, is that if object-control is implemented, then lack of network-control will be viewed as a threat. Since, unless the machine is limited to using only those objects which are "domesticated", those which are "wild" will proliferate. That is, all the P2P music and video trading will still be a "problem", just using one-generation-down "wild" copies made from speakers or screens, or otherwise "cracked".

In fact, the fallacy is very clear from thinking of the days of copy-protected software packages (object control). That didn't stop all the illegal file-trading sites (uncontrolled network) - they tended to be full of "cracked" copies (uncontrolled objects). And sometimes the "cracked" copies were even preferred for legitimate users, since they were often less hassle overall, to back-up and re-install. I can hear Jack Valenti now, saying something along the lines of perhaps "the open network is like a diseased sewer which threatens the sterile environment of the industry".

Moreover, there is a terrible social cost attached to such an argument. If people pin their hopes on object-control as the answer against network-control, then the flaws in object-control - exactly those uncertified, unapproved, unMicrosoft materials - will be cast as threats to the "solution", as spoilers against the supposed means of defeating network-control.

I should stress my points here aren't particularly ideological. It's not about whether Microsoft can be trusted with power, or if open-source is good. Rather, the proposed architectural code has a subtle bug in it - it has an XOR (exclusive "or") early in its model, where the system will want an AND (i.e. "both"). We will not save the network by object sacrifice.