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July 28, 2004

Mocking Woody Guthrie's Memory

As usual, Dan Gilmor cuts to the chase. Once again this proves that copyright is not about the artists, but only about the large corporate entities that suck down their talents in order to make money and perpetuate their strangleholds on innovation and creation. This is why the Internet is such a threat to them - people like the brothers who created JibJab can bring a work to the masses and totally circumvent their stranglehold.

The late, great Woody Guthrie is surely spinning in his grave today, in fury over what is happening with one of his most memorable songs, "This Land is Your Land."

But Guthrie would not be even slightly unhappy at the use of his immortal tune by the JibJab folks, whose brilliant satire of George Bush and John Kerry has become one of the most popular animations ever to hit the Web or any other medium.

No, Guthrie would be thrilled. He was a folk singer. Like all other folk singers he borrowed from others to create his art. As his son, Arlo, once said:

"We've heard some of the people talk about some of the songs he wrote tonight. And the truth is, he did steal old songs from other places. He took the old gospel songs, he took the old traditional ballads, and he put his words to them like we heard tonight. People still called it stealing. Plagarism, bad words like that, 'til Pete Seeger come along and renamed it the folk process. I think my dad's theory was that if you wanted people to be singing along with you on your new song, it'd be a hell of a start if they already knew the tune. Or even some of words."
Woody Guthrie wrote scathingly of people who steal more with fountain pens than guns. He would have loathed the people who abuse copyright so much today, trying to restrict all kinds of fair use, of which parody is an absolutely protected example.

Guthrie wanted credit for what he wrote, but he had contempt for severe legal restrictions on what others might do with it. According to Pete Seeger, in this account (widely acknowledged in the folk world to be true) from the Museum of Musical Instruments, when Guthrie was singing on the radio in Los Angeles during the Depression, he'd mail mimeographed songs to listeners, and wrote on one:

"“This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin’ it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”
I'll bet, therefore, that Woody would be horrified -- and angered -- by the behavior of an outfit called The Richmond Organization, which controls the copyright to his music. This humor-impaired crew has gone ballistic and has launched legal threats (CNN) at JibJab.

The Richmond Organization is dishonoring Woody Guthrie's memory, not that it seems to care. But it's giving us one more example of how the copyright system has abandoned common sense. [Dan Gillmor's eJournal]

July 26, 2004

Bravo (Donna Wentworth)

Fred Wilhems has written one of the most comprehensive and well-argued pieces I've seen about the Induce Act (PDF).

The core argument: copyright infringement over peer-to-peer networks is a problem for artists -- but you don't solve that problem by killing technological innovation or sending it overseas.

The fundamental problem I have with P2P is that the creators don’t get paid for the distribution of their work, and I don't really buy the arguments that this "free" dissemination encourages people to buy CDs, or that it builds a fan base, or that it promotes their live appearances. The hard numbers really don't bear these contentions out. INDUCE, however, attacks the wrong part of the problem by attempting to stop technology in its tracks. As the VCR proved, the MPAA's position in the Betamax case was shortsighted at best, and the current bill proves they and their allies haven't learned anything in the intervening 20 years.

Rather than figure out how to get paid from the technology, Big Content is supporting INDUCE in order to stop the technology from coming to market. This is just stupid. INDUCE isn't going to stop hardware and software developers outside the U.S. from working on new technology and bringing it to market. It is going to stop U.S. developers from participating in this growth, just as it will stop U.S. manufacturers, distributors, and retailers from achieving any share of the profits to be made, or employing the people who perform these functions, and no one else is going to be paid, either.

[Copyfight]

July 23, 2004

On the Difficulty of Retrograde Motion (Donna Wentworth)

Seth Finkelstein writes that the "most chilling" moment from yesterday's hearing on the Induce Act was the moment when Senator Hatch warned that whether or not the bill passes in its present form, "something has to be done" about copyright infringement via peer-to-peer file sharing. It's not the concept of a solution itself that's chilling. It's that Congress appears willing to explore only a certain subset of solutions -- those that pose a threat to technological innovation, the traditional balance in copyright, or both.

Wendy Seltzer responded to the news yesterday that TiVo has been dragged into a battle with Hollywood over the "portability" of recorded television programs with an apropos warning: "Don't be lulled by the copyright industries' claims that 'it won't hurt much.' Ceding to technology mandates gives the entertainment companies a screw they'll just keep tightening."

The Induce Act doesn't propose a technology mandate. But it does propose to extend liability for copyright infringement the only inch that the entertainment industry would need to take a mile. Already, it has emboldened Copyright Office Registrar Marybeth Peters to argue that the Betamax doctrine be abolished, presumably along with the 20 years of innovation it enabled.

Thankfully, the push to "do something" à la Orrin Hatch is facing push back. Evidently recognizing that the Induce Act would eventually come for its members, the Business Software Alliance is backing off from its endorsement of the bill as is. But as Ernest Miller points out, the bill "might never have gotten as far as it has without [BSA's] initial support."

It's not possible to overstate the importance of fighting this bill now, before it gets any further. Seth and Ernie each have had personal experience with battling uphill against misguided copyright law that remains firmly ensconced at the top. Retrograde motion is extremely difficult, and both time and resource-consuming. There aren't very many Seths or Ernies out there. Please, take a few minutes today to tell your representative why the Induce Act is the wrong way to deal with the conflict over P2P neworks. It's not too late to make a difference in this battle. Don't wait until it is.

[Copyfight]

The Site Finder Reprise

I have been attending the Icann conference in Malaysia this week. One of the key events was the submission of the report from the Security & Stability Advisory Committee regarding Site Finder. In reading the committee's report I discovered what I believe is an incredible breakdown in logic and as a consequence, a very mistaken, or at least confused, set of conclusions. So, why do I say that? [CircleID]

July 22, 2004

Looking at the CDT paper

From DNRC Board Member Karl Auerbach

I'm looking at the CDT Back to Basics paper on ICANN.

I was disappointed to see the paper begin with the recital that ICANN is a "technical coordination body." That is incorrect - ICANN avoids technical issues as if they carried the plague. With the exception of internationalized domain names (a matter that ICANN ultimately left to the IETF) and ICANN's current action with regard to Versign's sitefinder, the entire life span of ICANN has been marked by the way that ICANN has avoided establishing any policy that could be characterized as "technical coordination". ICANN has instead devoted its lifeblood to regulation of business and economic activity that has utterly nothing to do with technical coordination.

Those jobs that do involve technical coordination - jobs such as ensuring that the root servers are run well and with adequate resources and protections - have been abandoned by ICANN into the hands of independent and non-accountable groups.

In addition, I was surprised to see a resurrection of the old language that ICANN is the result of a "carefully crafted" effort. Nothing could be further from the truth - ICANN was born in a closed room with ICANN's founder and "outside counsel" acting as chamberlain controlling what people and views could enter and who could not. The only careful crafting that went into ICANN was to ensure that ICANN would conform to the desires of a few large industrial actors.

The CDT paper claims that the IFWP endorsed the White Paper. That is incorrect. The IFWP effort did not endorse the "White Paper". The forces behind ICANN destroyed the IFWP effort before that effort could reach closure. And, being a participant in the IFWP, I saw very little support within the IFWP process for the evolving ICANN.

The CDT report claims that ICANN is a body of limited powers. That claim grates against reality: ICANN has imposed upon the internet a price support regime that pulls well over $100,000,000(US) out of the pockets of internet users every year and puts that money into the pockets of registries and registrars. ICANN has also imposed a worldwide de facto law of trademarks. These are not the acts of a body of limited powers. None of these acts of ICANN have any relationship to "technical coordination". But they do have much to do with the exercise of governmental powers by a body that has completely rejected the concept of public participation in its decision making forums.

The CDT report, which frequently mentions ICANN as a "bottom-up" organization fails to remember how ICANN eviscerated every form of meaningful public participation in ICANN, including the repudiation of ICANN's explicit promises to have publicly elected members on its Board of Directors. ICANN's ALAC has proven to be a joke - after nearly two years its membership is nearly zero, a situation that compares very poorly with the robust and evolving public system that ICANN dismantled when that system elected me to ICANN's Board of Directors.

CDT is a well intended organization and its opinions are often worthy of respect and consideration. However, it is hard to give credence to a report that begins with as many errors of fact and historical fairy tales as does this report.

[CaveBear Blog]

Copyright Bill to Kill Tech?

A Senate committee will hear testimony on the controversial 'Induce' copyright bill Thursday. Critics say the bill is the biggest threat to innovation in 20 years, letting Hollywood dictate what consumer electronics companies can do. By Katie Dean. [Wired News]

July 07, 2004

Tech Companies Rally Against the Induce Act (Donna Wentworth)

Four quick pointers on the Inducing Infringements of Copyright Act (a.k.a. the Induce Act), which by extending copyright liability to those who "induce" infringement would give copyright holders an incredibly powerful tool to hamper the development of technologies like the iPod:

USA Today: "Internet search giants Google and Yahoo, chipmaker Intel, Internet service provider Verizon, auctioneer eBay, website operator Cnet Networks, and phone company MCI are among 42 companies and groups who signed a letter that will be delivered Tuesday to bill author Sen. Orrin Hatch, R-Utah, requesting hearings on the issue.

Two copyright bills were passed by a voice vote in late June without hearings, which is why the tech industry is concerned."

The letter itself (emphasis, mine): "By combining (1) a new and separate cause of action for "intentional inducement," (2) a lower civil, rather than higher criminal, standard of liability, and (3) a circumstantially "reasonable" test, [the Induce Act] would seem to ensure that massive and intrusive discovery proceedings, and a jury trial, would await any innovator or investor who introduces to the market a product that some copyright owner, someplace, believes will 'induce' infringement."

Copyfight author Ernest Miller "translating" statements by Senator Hatch's office on the possibility of holding hearings on the bill: "Hearin's? Hearin's? We don't need no stinkin' hearin's. And if we tells you the schedule, how we goin' to sneak the bill through?"

The EFF Action Center, where you can send a letter opposing the bill: "Right now, under the Supreme Court's ruling in Sony v. Universal (the Betamax VCR case), devices like the iPod and CD burners are 100% legal -- not because they aren't sometimes used for infringement, but because they also have legitimate uses. The Court in Sony called these 'substantial non-infringing uses.' This has been the rule in the technology sector for the last 20 years. Billions of dollars and thousands of jobs have depended on it. Industries have blossomed under it. But the Induce Act would end that era of innovation. Don't let this happen on your watch -- tell your Senators to fight the Induce Act!"

[Copyfight]

July 06, 2004

Comments to ICANN's TF3

From our very own Karl Auerbach

Here's what I sent to ICANN's Task Force 3. My general impression of the TF 3 output was that it was a prettified way of accusing the community of internet users as being cheats and liars and demanding that the costs of trademark enforcement be offloaded from the trademark owners onto the backs of domain name registrants and the DNS registration industry.

(It is amazing how often the trademark industry forgets that the purpose of trademarks is to protect the consumer's right and ability to identify goods and services and to distinguish such goods and services from one another.. The trademark industry forgets that trademarks are intended to benefit the customer, not the seller, and that any benefit to the seller is merely incidental.)

Here's what I sent in:

Thoughts on the TF3 (accuracy) report (WHOIS TASK FORCE 3 - IMPROVE THE ACCURACY OF DATA COLLECTED FROM GTLD REGISTRANTS PRELIMINARY REPORT)

I find the report to be inadequate and lacking both the factual and logical foundation to support its conclusions and recommendations.

The report begins by failing to comprehend the meaning of "accuracy".

Accuracy is not an absolute term. One definition of accuracy is the absence of incorrect information. In that regard, a blank field on a form is completely accurate. The task force's report makes it clear that this is not the definition of accuracy that is being used by the task force. If the task force wishes its report to itself be able to claim that it is accurate then the task force must necessarily articulate what it means by accuracy.

I submit that accuracy is measured by context. In the case of business data the typical metric of accuracy is whether the data exchanged, in all directions among all parties to the transaction, is whether that data is sufficient to support the business being transacted.

In the case of domain name registrations, the parties to the transaction are the registrar and customer (registrant) or his/her agent. There are no other parties to the transaction. (The report of task force 1 makes it clear that when examined on the basis of real numbers rather than chicken-little-like anecdotes that the interests of trademark owners in domain name transactions are based on events so rare and of such individually miniscule impact on the internet community as to amount to a factor that can be best remedied through recourse to traditional legal processes.)

As measured in the context of the registrar-customer transaction the first metric of accuracy is whether the information conveyed at the time of the registration is sufficient to support that registration. The second metric is whether the information conveyed is sufficient to maintain the relationship. And the final metric is whether the information at the time of potential renewal is sufficient to support renewal, if the potential for such renewal was part of the original understanding.

Before going further it is necessary to distinguish the concept of "accuracy" from that of "precision". It is perfectly accurate for every domain name registrant in existence to indicate that he or she lives on planet Earth. But most would not consider that to be usefully precise.

At the time of the initial registration of a domain name the following information needs to be conveyed:

Customer-to-Registrar:
Desired domain name
List of name servers

Registrar-to-Customer:
Whether the name requested name has been allocated to the customer (implying that the name and customer's name server list have been placed into the appropriate zone file.)

Not all registrations involve money and billing. Nor do all registrations necessarily impute a desire for renewal - one area of domain name businesses that have been arbitrarily foreclosed until now by ICANN have been non-renewable, short term registrations for single-time events, elections, movies, etc.

If a registration involves the payment of a fee, then the exchange of information must be adequate to facilitate the payment of that fee. After that payment, that information is no longer needed to support the registration process. It is a well known principle of privacy that information should be retained only if it is relevant to a transaction. Thus a registrar that is desirous of protecting privacy would be acting quite within reason should it erase transactional information once that information has ceased to be of value.

Maintenance of the relationship between registrar and customer is largely driven by the needs of the customer. For that reason there is no particular reason, in the context of maintenance of the registration information (i.e. the list of name servers) for the registrar to retain precise, that thus privacy infringing, information regarding the customer.

Third parties who today bombard the DNS whois databases are not parties to the maintenance relationship. As task force 1 indicated, such third parties ought to be required to make a preliminary showing that they have reason to examine the registration data. The degree of precision of the data disclosed must, therefore, vary in conformance with the degree of precision of that showing and of the nature of the purported grievance.

Finally, renewal processing only requires sufficient information to consummate the renewal transaction at the time of the transaction - there is no need for such information to be exchanged in advance of renewal or to be retained after renewal.

Additional data gathering and maintenance burdens the system with additional costs. Absent a clear showing of illegal activity on the part of the majority of domain name registrars and customers it would be improper to impose such costs on all transactions. Yet the task force's report seems to have elevated the ill-actions of a very, very few into a blanket accusation against all domain name registrants as a self-bootstrapping argument to encumber the entire domain registration system with excess costs and an institutional system of excess information disclosure amounting to a wholesale violation of the privacy of every member of the community of internet users.

If the demands of such third parties trigger the gathering and maintenance of data above and beyond the data used for registration, maintenance, and renewal then those third parties ought to pay the costs of such gathering and maintenance.

[CaveBear Blog]

Did ICANN Even Notice .Org's Problems?

Last week .org had problems.

Many users reported an inability to resolve domain names under .org. The scope and nature of the problem was masked by .org's heavy use of anycast technology: the problem, and even the appearance of trouble, very much depended on your location in the topology of the internet.

Network operators noticed immediately. ICANN did not.

ICANN, the body that proclaims itself to be in charge of the stability of the internet's domain name system, appeared to be completely unaware of the existence of problems with one of the internet's largest top level domains.

Instead ICANN, as is typically the case, was obsessed with other matters that have no relation whatsoever to the reliable provision of internet domain name services.

Perhaps it is time to establish a new body, one that actually is concerned with the stability of the internet, so that ICANN can finally stop the obviously untruthful promotion of itself as an organization that has any technical competence, technical knowledge, or concern for the secure, stable, reliable, and efficient technical operation of the internet's domain name system.

[CaveBear Blog]