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
"... 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.
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! :-) ![[happy face]](http://sethf.com/images/inline-smiley.gif)
]
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