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September 30, 2004

Surprising Things in Today's Hearing

The ICANN Congressional hearings -- like most all Congressional hearings -- are typically dull. The testimony is scripted and well rehearsed, and little new information comes out. Today's hearing was no different. The interesting moments, all of which were unscripted in response to questions, came when:

Only two of the Senators asked questions, though the record will remain open for two weeks to allow written statements, questions and answers to be filed. [Lextext]

Posted by mikki at 09:19 PM | Comments (0)

September 25, 2004

WIPO 2.0: A Declaration for the Future of IP (Donna Wentworth)

There's a battle going on at the World Intellectual Property Organization (WIPO) -- one that could accurately be described as a struggle for the soul of the organization. The central question is whether WIPO will coninue to promote the protection of intellectual property for its own sake -- IP "uber alles" -- or, as a number of developing countries and others are advocating, pursue a range of initiatives that reflect such notions as "balance," "innovation," or "access." What's at stake is much more significant than the harmony or disharmony of IP regulations. As James Boyle points out in his Manifesto on WIPO and the Future of Intellectual Property, WIPO decisions affect everything from the availability and price of AIDS drugs, to the patterns of international development, to the communications architecture of the Internet.

Jamie Love of the Consumer Project on Technology (CPTech) has been working at the front lines of this battle for many years, and today he forwarded a document proposing that WIPO formally adopt a "development agenda" and other reforms to unlock the organization's considerable power to help humanity. The document, called the Geneva Declaration on the Future of the World Intellectual Property Organization, lists a number of problems that a new direction for WIPO could address:


So what's the antidote? According to the declaration, the key is recognizing the opportunities implicit in the "astoundingly promising innovations in information, medical and other essential technologies, as well as in social movements and business models" and resolving to act upon them:

Humanity stands at a crossroads -- a fork in our moral code and a test of our ability to adapt and grow. Will we evaluate, learn and profit from the best of these new ideas and opportunities, or will we respond to the most unimaginative pleas to suppress all of this in favor of intellectually weak, ideologically rigid, and sometimes brutally unfair and inefficient policies?

[...]

The proposal for a development agenda has created the first real opportunity to debate the future of WIPO. It is not only an agenda for developing countries. It is an agenda for everyone, North and South. It must move forward. All nations and people must join and expand the debate on the future of WIPO.

[...]

Delegations representing the WIPO member states and the WIPO Secretariat have been asked to choose a future. We want a change of direction, new priorities, and better outcomes for humanity. We cannot wait for another generation. It is time to seize the moment and move forward.


Absolutely.

Love and other supporters are seeking additional signatures. If you're interested in signing, send an email to CPTech and the good folks there will guide you through the process.

[Copyfight]

Posted by mikki at 09:59 AM | Comments (0)

Iran bloggers' censorship protest

From the BBC

Iranian internet users start an unusual campaign against censorship - renaming blogs after banned newspapers. [BBC News | TECHNOLOGY]

Posted by mikki at 09:58 AM | Comments (0)

Internet Governance Has Become a Non-Issue

From CircleID

It's funny, but I recall the battle cry that the WWW was "free" back in its early days. When contributing game concept to the early and great gaming pioneers like Infocom, there was such a great esprit-du-corps amongst our team regarding the fun as well as utility that the WWW offerred. In retrospect, we were so naive. I recall the days when guys like Bill Gates prided themselves on being such a great "hackers" - it was a noble term back then. [CircleID]

Posted by mikki at 09:55 AM | Comments (0)

Going Off the Rails

From DNRC Board Member Bret Fausett

Graeme Wearden, reporting in ZDNet UK: "Individual Internet users are being frozen out of a key debate on the future governance of the Internet, Web visionary Esther Dyson warned on Friday.... 'I feel the process is going off the rails,' Dyson told the audience at the debate organised by the Oxford Internet Institute and the Internet Society UK....According to Dyson, WGIG is not the right way to address the problems facing the Internet. 'When you concentrate power, whether it's the low-rent, measly power ICANN had, or full-blown global governmental power, that focus of power attracts the wrong people,' Dyson said. 'People who are self-appointed to represent other people are there, governments are there, the private sector is there, but the world at large isn't.'"

Yeah. What she said.

[Lextext]

Posted by mikki at 09:53 AM | Comments (0)

September 22, 2004

EFF Files Brief in Email Privacy Case

An important privacy issue is being examined by the court. EFF is stepping up to the plate.

Councilman Case Should Be Heard Before Full Court

Boston, MA - The Electronic Frontier Foundation (EFF) today submitted a friend-of-the-court brief in a case that will have a profound effect on the privacy of Internet communications.

The brief argues that US v. Councilman, previously decided by a panel of First Circuit judges, should be reheard by the entire First Circuit Court of Appeals. In the earlier panel decision, the court ruled that it does not violate criminal wiretap laws when an email service provider monitors the content of users' incoming messages without their consent.

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent from Amazon.com, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. The court ruled that this is legal. As the panel itself stated in the ruling, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

Co-authored by Orin Kerr and Peter Swire, law professors specializing in Internet privacy issues, the amicus brief is co-signed by EFF, the Center for Democracy and Technology (CDT), the Electronic Privacy Information Center (EPIC), and the American Library Association (ALA). Amici argue that a rehearing is necessary because the Councilman decision disrupts the traditional understanding of Internet surveillance laws, raising significant constitutional questions under the Fourth Amendment.

"This court decision has repercussions far beyond a single criminal prosecution," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "The panel decision effectively rewrites the field of Internet surveillance law in ways that Congress never intended. If private service providers like Councilman can avoid the Wiretap Act's criminal prohibition on interception by a technicality in the way the messages are transmitted, it follows that the government will also be able to monitor our communications without having to ask a judge for a wiretap order. If the decision is allowed to stand, it will eliminate the Wiretap Act as the primary curb against private and government snooping on the Internet."

Links:

Amicus brief in US v. Councilman

Wired: E-Mail Snooping Ruled Permissible

Washington Post: Court Limits Privacy of E-Mail Messages

Contacts:

Kevin Bankston
EFF Attorney, Equal Justice Works/Bruce J. Ennis fellow
bankston@eff.org

[EFF: Press]

Posted by mikki at 08:43 AM

September 21, 2004

Linux Australia "Shot in the Dark" by MPAA (Donna Wentworth)

This following tactic is precisely what happens with domain name litigation, and causes many legitimate domain name holders to give up their rights rather than fight an expensive battle. Regardless of whether or not they will win, the fear of paying huge legal fees to ensure one's rights causes many to cave rather than fight.

One topic of discussion this weekend at the EFF staff and board retreat was what Wendy calls the "Attack of the Subpoena-bots" -- that is, the trend toward automatic weapons-style litigation campaigns. This is when companies or industry groups like the RIAA and MPAA use key-word searches and the like to target possible infringers before firing off round after round of seemingly indiscriminate cease-and-desist letters. The problem with this is that even if the recipient is 100 percent innocent, he or she may have no idea of how to respond to the intimidating legalese/exhorbitant demands in these letters. Rather than risk doing the wrong thing, and eager to avoid the expense of an attorney, the recipient frequently decides to give up rather than to fight -- leading to the widespread chill of perfectly legitimate activities.

Fortunately for the Internet community, every once in a while a stray round hits the wrong guy -- someone not only willing but eager to fight back. Which is evidently what happened when the MPAA recently sent cease-and-desist notices to Linux Australia for providing access to two copyrighted movies: "Grind" and "Twisted." Except that what Linux Australia actually did was provide access to a download of the Twisted framework written in Python, and Valgrind, a tool for developers to locate memory management.

Needless to say, Linux Australia was not amused. And as luck would have it, the group has the legal chops and resources to do something about it:


"This seems to be a huge misuse of resources, an infringement upon various global spam laws, an infringement upon our own Copyright Act under Section 102 and needless stress and cost upon small Australian organizations and companies," [Linux Australia President Pia] Smith said.

[...]

"Linux Australia is concerned that this kind of shoot-in-the-dark approach to copyright protection is potentially damaging for Australian organizations and companies," Smith added. "Organizations that participate in such behavior should be held accountable, and forced to put at least some effort into researching the validity of their keyword searches."


Here in the states we're waiting for a ruling to come down that may provide additional protection for those inappropriately targeted by infringement claims: the decision in OPG v. Diebold. As Wendy notes in a recent OJR article, there's a seldom-used section of the Digital Millennium Copyright Act (DMCA) aimed at stopping misuse: 512(f), which provides that anyone who knowingly misrepresents material as infringing "shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer."

[Section 512f] allows one who has been hit with a purposely abusive demand letter to reply, "Not only am I not in the wrong, but you don't have the right to say I am," says Seltzer.

What I'm wondering is what the court will require to prove that Diebold knowingly abused the DMCA to silence its critics -- and how that might compare to what it takes to prove that someone has knowingly violated copyright law.

[Copyfight]

Posted by mikki at 09:55 AM | Comments (0)

Induce Act on the Move (Donna Wentworth)

There's a new Hollywood Variety piece (ad-view req.) on Friday's coalition letter (PDF) asking Senators Hatch and Leahy to put the breaks on the Induce Act, which could see some movement in committee as early as tomorrow. It's short but sends precisely the right message, especially in stating unambiguously that "The Induce Act would usher in the most sweeping changes to current copyright law since the U.S. Supreme Court blessed the VCR in 1984."

Luckily, as Jason points out at Deep Links, the companies that could be targeted by any or all of the competing versions of the bill are now stepping forward. The question they're finally asking: "We've got two weeks to weigh the merits of a bill that would reverse the doctrine that brought us twenty years of technological innovation?"

[Copyfight]

Posted by mikki at 09:47 AM | Comments (0)

September 10, 2004

Updating the Copyright Clause (Donna Wentworth)

Walt Crawford of the excellent Cites & Insights has a new piece over @ EContent in which he updates the Constitution's copyright clause to reflect today's unfortunate reality:


Original: "The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries."


Crawford's update: "Members of the MPAA, RIAA, and AAP shall have the right to control technological change in order to enforce perpetual rights to creative works. Congress shall ensure that the corporate right to control over and payment for every use of those creations takes precedence over outmoded notions such as freedom of speech, fair use, and the first purchase doctrine."


Nice. Or rather, not so.

Crawford notes that he's been writing a lot about copyright in Cites & Insights, and adds that there's no shortage of other sources on the Web -- but "no matter where you look you'd best be paying attention to the evolution of copyright as it hits closer and closer to rights you may have taken for granted." Spot on.

[Copyfight]

Posted by mikki at 07:44 PM | Comments (0)

September 07, 2004

RIAA Lobbyist: DRM 'up or INDUCE is gonna getcha (Jason Schultz)

So why do we allow scum like this to dictate innovation? Why do we allow them to dictate what we can do with content or CDs or other things that WE PURCHASE. We PAID these people to use these things.


And now they are forcing innovators who create LEGAL products that we want to buy, to kowtow to their demands or they will get the politicians who are already in their back pockets, to write bad laws to force them to comply. And we just sit back and take it.


It's time we closely examine the records of these politicians who vote for this anti-consumer, anti-innovation, anti-American stuff and vote their sorry butts out of office forthwith.

On the heels of Fritz Attaway's antagonistic comments about P2P the other week, there was an interesting Q&A in CNET last week with Mitch Glazier, head DC lobbyist for the RIAA. I found this exchange particularly illuminating:

There has been speculation that the original Induce Act could make Apple Computer liable for selling like the iPod. Could it?

No.

Why not?

The original Induce Act focused on the totality of the circumstances. There's no way that a company that produces great digital rights management for a licensed product is ever going to be shown to want to profit from piracy.

In other words, the RIAA intends to use INDUCE as leverage to pressure companies into incorporating DRM. If you incorporate "great digital rights management for a licensed product", they won't sue. Leave out the DRM, however, and well.. you enter the marketplace at your own risk.

Also, it appears that Mitch is confusing his Apple products. Apple's iTunes Music Store does put DRM on each of its songs, but the iPod can handle an unlimited number of DRM-free MP3 files without any restrictions. Apple could have designed the iPod to only handle DRM-protected content, but it didn't. Does the fact that it enforces DRM rules for some songs but not for others still mean it can't INDUCE?

[Copyfight]

Posted by mikki at 07:50 PM | Comments (0)

September 06, 2004

A Little Tale - From Karl Auerbach

Netburg is a nice place to live. It barely existed a decade ago. Today it is home to millions of people and corporations worldwide are moving their headquarters.

Netburg is built of wood, nice dry wood; the kind that catches fire easily.

Netburg has a problem. There are people and groups around the world who send incendiary devices into Netburg 24 hours a day, seven days a week, 365 days a year. So far only small parts of Netburg have burned. But everyone knows that a big fire could happen at any time.

Netburg does not have a fire department. It has thirteen self-appointed fireman who have invested their own money in trucks and equipment. But those fireman aren't obligated to put out fires or to be impartial about choosing whose fires to put out and whose buildings it will let burn. To date these fireman have had the self motivation, the resources, and good will to do the job.

Six years ago, back in 1998, Netburg's traffic department empanelled a board of fire commissioners and instructed them to professionalize Netburg's fire prevention and firefighting systems. Nobody has ever explained why it was the traffic department rather than the city counsel or mayor rather that set up the fire commission . And nobody is sure whether the traffic department's actions are within its scope of authority or not. But that is another tale for another day.

To help get things started, the traffic department gave Netburg not only the right to decide who can build a home or business on each street in Netburg but also to charge a fee for making that decision. The traffic department told the fire commissioners that they could also levy a yearly charge on every home and business in Netburg. Few complained at the time: the traffic department had formerly been charging a $35 yearly fee and the fire commissioners lowered it to about $15 and practically nobody noticed that that $15 amount was an arbitrary figure and much higher than could be justified.

The traffic commission, the fire commissioners, and the firemen have worked to create a public belief that no other firemen ought to be allowed into Netburg. And the commissions have ceaselessly encouraged the public to believe that the commission is protecting Netburg against fires and that everything is safe and under control.

Unfortunately, Netburg's fire commissioners want to be real estate commissioners.

As a consequence the fire commission has done nothing to protect against fires. Netburg's fire commission has no fire station, no fire trucks, no hoses, no ladder. Netburg is about as well protected against burning down as Chicago was protected from Mrs. O'Leary's cow.

In the meantime, the fire commission has proven itself rather poor at the real-estate game. They have allowed only seven new houses to be constructed in Netburg during the last six years. And those houses are mostly small, shabby affairs. Some are so ill conceived that they are barely able to stand without being propped up.

Netburg is suffering from a dual curse: it is unprotected against fire and its real-estate industry is an over-regulated shambles with business practices that would embarrass even a used-car salesman.

I hope the reader recognizes Netburg as the internet and the fire commission as ICANN.

What's the point of this tale? It is this: ICANN has done nothing, absolutely nothing, to protect the internet from disaster.

instead, ICANN has squandered its entire existence pretending to be the Pooh-Bah of domain-name trademark rules and the Grand High Commissioner of domain name business practices.

ICANN has not suffered from its digression - ICANN's budget now wants to be $15,000,000(US) a year. ICANN's directors and staff flit around the world (and most do not fly coach class!) to be wined and dined and flattered and partied. And how the law firm that created ICANN is raking in the legal fees!

The internet, on the other hand, has been left unprotected and vulnerable.

ICANN has not done anything to improve the technical stability of the internet or to make the upper layer of DNS less vulnerable to attack or failure. The only protection has come from the efforts of an amazing cadre of independent actors who, perceiving the vacuum, have stepped in and assumed the job that ICANN promised that it would do.

These actors, however, are mortal or are institutions that have goals and budgets that may not always coincide with the level of effort required to continue in this role.

ICANN, by pretending that it is protecting the net, has created a grave danger.

The community of internet users has been misled by ICANN to believe that the net is being guarded. Yet ICANN, because it is engaged in other matters, has left the internet at risk, protected only by a few volunteers who are free to walk away at any time.

Netburg, the community of internet users, deserves better.

ICANN seems to be neither willing nor able to do what it was supposed to do in the first place, which is to ensure that the upper layer of the domain name system runs reliably, accurately, and efficiently 24 hours a day, 7 days a week, 365 days a year.

A city that has a fire department that doesn't care about putting out fires ought to replace its fire department.

ICANN has had six years to get its act together; there is no sign that it is improving. The internet community is paying for an ICANN that ensures the stable technical operation of DNS. We are not getting what we are paying for. How much longer are we willing to tolerate a status quo in which the entire internet is put at risk?

[CaveBear Blog]

Posted by mikki at 11:44 PM | Comments (1)

September 05, 2004

ICANN UDRP and Contract Disputes

When domain name conflicts between manufacturers and distributors rest on contractual disputes over the use of the trademark owners' marks, ICANN UDRP panels have frequently denied relief. See generally the cases cited and discussed in Western Holdings, LLC v. JPC Enterprise, LLC d/b/a Cutting Edge Fitness and d/b/a Strivectin SD Sales & Distribution, D2004-0426 (WIPO August 5, 2004) by Mark Partridge as sole panelist. The decision summarizes other ICANN UDRP decisions involving... [CircleID]

Posted by mikki at 09:37 AM | Comments (0)

September 04, 2004

We've moved the DNRC website

We've moved the blog and the entire website to new hardware. If you happen to notice anything that isn't quite working right, or any other issues regarding our site, please write to admin at netpolicy dot com. Thanks.

Posted by mikki at 10:42 PM