Domain Name Rights Coalition

Seth Schoen has a nice exercise in reductio ad absurdum, pointing out that the only argument the Business Software Alliance (BSA) makes in its recent legislative agenda to refute the notion that copying is beneficial to society is that restricting copying will make the software industry larger and more profitable. Says Seth, "The idea that helping a business sector get larger and richer is a primary duty of legislators or of the public is so peculiar that it bears trying to come up with a few parallel arguments."

For example, BSA asserts:

Some have attempted to paint copyright piracy as a victimless crime, arguing that "if I make a copy of a computer program, you still get to keep your copy, and we are both better off." This is hardly the case.

Reducing piracy offers direct benefits. The equation is a basic one: the lower the piracy rate, the larger the IT sector and the greater the benefits.

Some have attempted to paint conjugal sexual intimacy as a victimless crime, arguing that "if you and I have intimate relations, we both derive pleasure and a sense of togetherness, and we are both better off." This is hardly the case.

Reducing sex among committed partners offers direct benefits. The equation is a basic one: the lower the intimacy rate among committed partners, the larger the prostitution sector, and the greater the benefits.

Of course, BSA and NAB are doing no more than using the best arguments they have to further their own self interest. But it's important to recognize the arguments for what they are: myopic. You can argue all you want that because intellectual property protection is good, any form that props up your particular business model is also good -- but that doesn't make it so.

Posted by mikki at 10:26 PM | Permalink | Comments (0)

I notice how much energy the US Government is expending in order to endorse and support relatively open and public elections in Iraq despite the potential that people who oppose the status quo government might be elected.

By comparison I note how little energy the US Government (via the US Department of Commerce and its sub-agency NTIA) have expended to endorse and support the restoration of relatively open and public elections in NTIA's foster child, ICANN.

There are a lot of really scary people - people who might have more than a passing relationship with the kind of nasty folks who shoot guns, fire RPG's, and launch mortar rounds into their opponents or innocents - who could win in Iraq. Yet the US and Iraq are moving forward. (We all might want to pause for a moment this weekend and launch into the luminiferous ether a thought of peace and good will with a hope for a stable outcome to the election.)

ICANN, with the backing of the US Government, dropped public elections. The unstated reason was that they were afraid that more people like myself or Andy Mueller-Maguhn might be elected. (There is little doubt in my mind that I would have been re-elected had ICANN permitted an election.)

I guess that in the world of ICANN and the US Department of Commerce, the chance that Andy Mueller-Maguhn or I might be re-elected to ICANN is more to be feared than the chance that some unsavory folks might be elected in Iraq.

It is pretty obvious that ICANN's "reformed" board selection process has resulted in exactly what it was intended to do: fill the Board of Directors with quiet timid creatures who are afraid to ask questions, afraid to demand accountability, afraid to focus ICANN, afraid to impose onto ICANN a clear job description, and afraid hold ICANN to that description. The individual directors of ICANN have made themselves so insignificant that it is hard to remember who they are.

ICANN is in at least as much need of publicly elected board members as Iraq is in need of a publicly elected government.

Posted by mikki at 07:40 AM | Permalink | Comments (0)

Yesterday, the major motion picture studios and the recording industry filed a brief [PDF] in MGM v. Grokster arguing that the Betamax defense "should not apply when the primary or principal use of a product or service is infringing." They specifically reject the "mere capability" test that the majority of the Supreme Court endorsed in 1984.

Fred von Lohmann has now posted a response over at Deep Links. The gist? Primary uses for new technologies shift over time. If we substitute a "primary use" test for mere capability, entertainment companies would no longer see the need to explore whether they can ultimately make money from new technologies. Instead, they'd have an "incentive to let slip the dogs of litigation as early as possible," before a new technology starts proving its noninfringing potential. So while the Betamax test has allowed technological innovation to move forward, a "primary use" test would cause it to start moving in retrograde.

Ed Felten also has a must-read post on two of yesterday's briefs -- the Solicitor General's brief [PDF] and a brief from a group of anti-porn and police organizations [PDF]. He points out errors amici are making with regard to technology, arguing that the briefs "are caught between nostalgia for a past that never existed, and false hope for future technologies that won't do the job." In the effort to bring down Grokster et al, for example, they make arguments that could apply to the Internet as a whole:

These arguments (as the lawyers say) prove too much, as they would apply equally to the Internet itself, which is ignorant of use and content, does not register most of its users or monitor their activities, does not limit the types of files that can be shared, and is generally anonymous, decentralized, unsupervised, and unfiltered.

Posted by mikki at 04:58 PM | Permalink | Comments (0)

Here is one of the reasons I've been relatively scarce of late -- we at EFF have been working on a brand new campaign to demonstrate the many ways that the copyright cartel is spoiling the environment for innovation:

FCC Chairman Michael Powell calls TiVo "God's machine," and its devotees have been known to declare, "You can take my TiVo when you pry it from my cold, dead fingers!" But suppose none of us had ever been given the opportunity to use or own a TiVo -- or, for that matter, an iPod? Suppose instead that Hollywood and the record companies hunted down, hobbled, or killed these innovative gizmos in infancy or adolescence, to ensure that they wouldn't grow up to threaten the status quo?

That's the strategy the entertainment industry is using to control the next generation of TiVos and iPods. Its arsenal includes government-backed technology mandates, lawsuits, international treaties, and behind-the-scenes negotiations in seemingly obscure technology standards groups. The result is a world in which, increasingly, only industry-approved devices and technologies are "allowed" to survive in the marketplace.

This is bad news for innovation and free competition, but it also threatens a wide range of activities the entertainment conglomerates have no use for -- everything from making educational "fair" use of TV or movie clips for a classroom presentation, to creating your own Daily Show-style video to make a political statement, to simply copying an MP3 file to a second device so you can take your music with you.

Rather than sit back and watch as promising new technologies are picked off one-by-one, EFF has created the Endangered Gizmos List to help you defend fair use and preserve the environment for innovation.

• Why Hasn't TiVo Improved? by Ed Felten @ Freedom to Tinker;
  
• Matt Haughey's response @ PVR Blog;
  
• Debunking a DRM Press Release by Cory @ BoingBoing; and, finally, the ever-so-delicately titled,
  
• DVD CCA Is an Innovation-Stifling Cartel, by Julie Jacobson at CEPro Magazine.
  

Posted by mikki at 04:56 PM | Permalink | Comments (0)

Washington, DC - The US Supreme Court set the date for the oral argument in MGM v. Grokster for March 29, 2005, in Washington, DC. EFF is defending StreamCast Networks, the company behind the Morpheus peer-to-peer (P2P) software, against 28 of the world's largest entertainment companies.

The companies first brought this lawsuit against the makers of the Morpheus, Grokster, and KaZaA software products in 2001, hoping to obtain a legal precedent that would hold all technology makers responsible for the infringements committed by the users of their products. The entertainment companies lost in District Court, then lost again on appeal to the Ninth Circuit Court of Appeals.

The lower court rulings were based on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

On March 29, the Supreme Court will hear oral arguments from both sides. A final ruling is expected by the end of July 2005.

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Posted by mikki at 10:02 AM | Permalink | Comments (0)

A big win for freedom. Making the Music Industry play by the same rules everyone else has to is a big plus.

Ruling in Charter Case Smashes DMCA Subpoena Powers

The Eighth Circuit Court of Appeals issued a decision today that will stop entertainment corporations from gaining access to the names of people using peer-to-peer (P2P) networks unless the companies file lawsuits against them and furnish actual evidence of copyright infringement.

The case was sparked by a series of subpoenas sent by the Recording Industry Association of America (RIAA) to Missouri-based Internet service provider (ISP) Charter Communications, Inc. The record companies claimed that these subpoenas, which demanded that Charter identify customers accused of offering infringing music on P2P networks, were authorized by the Digital Millennium Copyright Act (DMCA).

The Electronic Frontier Foundation (EFF), along with 21 other groups, including the American Civil Liberties Union (ACLU), the Consumer Federation of America (CFA), and the Computer & Communications Industry Association (CCIA), filed a "friend of the court" brief in the Charter case, urging the Eighth Circuit to determine that the same strong protections applied to anonymous speech in other contexts also apply when copyright infringement is claimed but has not yet been proven. In a victory for privacy and anonymity, the Eighth Circuit determined that DMCA subpoenas could not be used to get this information.

EFF Staff Attorney Wendy Seltzer noted that the RIAA has already changed its tactics for the better in current suits against filesharers. In these new cases, record companies generally file suit against "John Does." Said Seltzer, "In the 'Doe' lawsuits RIAA members are currently filing, a judge oversees the discovery process and can help protect ISP customers before their names are revealed." EFF has filed amicus briefs in several of the Doe cases, and some judges have limited the record labels' discovery of identities through mass lawsuits.

In December 2003, the DC Circuit ruled that the RIAA could not use the DMCA's non-judicial subpoenas to obtain subscriber identities from ISP Verizon Internet Services, Inc. "Charter should be congratulated for following in the footsteps of Verizon in standing up for the privacy of its users," said EFF Legal Director Cindy Cohn. The US Supreme Court rejected the RIAA's appeal of the Verizon case. Today's Eighth Circuit decision is an explicit endorsement of the DC Circuit's ruling.

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Posted by mikki at 03:05 PM | Permalink | Comments (0)

We've had quite a few dicussions in the space about Hollywood's attempts to rob you of your fair use rights in order to sell them back to you (see here, here, and here). Today Fred von Lohmann has published a review of El Gato's EyeTV -- a Mac product that allows people to make fair uses of high-definition digital television broadcasts. One such fair use might be recording a clip of a movie like "The Lord of the Rings: Fellowship of the Ring" to use in the context of discussion/review -- and this is precisely what Fred has done [500 MB+ Bit Torrent download].

In only seven months, the FCC's "broadcast flag" regulatory regime will go into effect -- and the regime does not recognize the right to fair uses like this one. But if you purchase devices that aren't hobbled now, you'll be able to keep making perfectly legal uses of recorded broadcasts despite the flag.

For more about EyeTV and the issues surrounding the flag, check out this post @ Deep Links.

Posted by mikki at 03:01 PM | Permalink | Comments (0)

Check out Content and Control, the Digital Media Project's latest white paper. Copyfighter Derek Slater had a hand in researching and writing the paper; as he describes it via email, it's aimed at helping legislators and others understand the end-game results of policy/technology choices we're making to control filesharing and digital copyright infringement in general. More specifically, it considers how these choices might impact a set of budding and/or proposed business models for digital media. Right up our alley.

Posted by mikki at 03:01 PM | Permalink | Comments (0)

An interesting analysis from the DRM Blog whose link is at the end of the story

In case you haven't heard by now, a gentlemen named Thomas Slattery has filed a lawsuit in the U.S. District Court in San Jose (9th Circuit I believe) against Apple and iTunes. He makes the argument that we at DRM Blog have been spouting for a while, that Apple is using its marketing strength to lock customers into their hardware and software.


Many people think that Slattery has no chance of winning, that the lower courts shy away from ruling on such matters. But we think that his lawyers know exactly what they're doing.

"Apple has unlawfully bundled, tied, and/or leveraged its monopoly in the market for the sale of legal online digital music recordings to thwart competition in the separate market for portable hard drive digital music players, and vice-versa," the suit charged.


no one's said it outright yet, but Slattery's lawyers are making the same arguments that were used against Microsoft and Internet Explorer several years ago when the courts ruled against the software giant.


So I'll call it how I see it. I think they have a shot, if for no other reason than that they can show precedence with a similarity of business predatory business practices and pricing between Apple and Microsoft. Actually, their business models aren't all that disparate, perhaps reversed but certainly similar. Microsoft makes software that will work on the lowest common denominator of computers to lock in the largest number of people to its software products. Apple makes unique hardware that locks users into using its software products. The same business model approached from different views.


Now it's time for a little history lesson. Microsoft's main legal downfall during their anti-trust battle was that they used their market position to predatorily price a product to undercut similar products that were being sold by the competition. In that case it was Internet Explorer which they gave away for free and bundled (key words there) it with their operating system. By doing so, they made it virtually impossible for Netscape and other companies to sell their browsers when another one was being given away for free.


Apple has essentially done the same thing. Apple gave away their iTunes multimedia player software completely free first to MacIntosh users then bundled (there's that word again) the player software with the iTunes store software for PC users.


Then Apple priced songs at far below market value, 99-cents, a level that many have argued Apple can not be making a profit on, and at best, can only break even. The courts understand that consumers will naturally choose a lower-priced product, and that predatorily low prices have routinely been used by market leaders to drive out competition.


Finally, Apple wrapped it all up in their FairPlay DRM agreement, to which all users are required to consent, that forbids all music purchased from iTunes from having the DRM removed. Although you can burn a back-up of your songs to CD (the Redbook CD format, the standard that all CD players recognize), but allows no transfer of said purchased songs to other mp3 players (i.e. Apple's competition). And since it breaks the DRM agreement to do so, a customer is forbidden to rerip that back-up CD to mp3 form. Thus, to truly take your digital music on the go, you have to buy their iPod. Check out iTunes Music Store's ToS. It says you're allowed to export your music for personal use, but literally can't because the songs won't play on any other device.


Another argument that begs to be made is that Apple took the open mp4 standard and changed it so that it would not work with standard mp4 players. By wrapping their digital rights management scheme around it, Apple broke an open standard. Compare this with Sony's approach. Sony took ATRAC and added DRM that locked it down. The difference is that Sony owns ATRAC and ATRAC was never an open licensed standard. This can also be compared to Nintendo and its console market. Nintendo was clearly the market leader in the console market but no other manufacturer could build cartridges for the Nintendo. This was challenged in court several times and Nintendo always won. The reason that both Sony and Nintendo will always win these cases is that those two companies were using proprietary technology that was never licensed to anyone else. The reason that this might hurt apple is that MP4 is an open standard that Apple licensed from another company and consumers have the assumption that their MP4s will work with any MP4 player.


Under the guise of intellectual property protection, Apple has created a very predatory business model intended to lock consumers into their technology. They sell the songs to sell the device, but the real problem is that they've potentially violated anti-trust laws to do it. One way that Apple could probably diffuse this issue would be to simply licens FairPlay to other hardware and software makers.


I should also add that the Ninth Circuit is one of the most liberal courts and tends to be overturned more than another other circuit. What this means is that regardless of the outcome, we may very well see this case, or another one like it, go all the way to the Supreme Court, or at least be remanded back down to the lower courts by the Supreme.

[DRM Blog]

Posted by mikki at 02:58 PM | Permalink | Comments (0)

From Declan McCullugh's list

http://news.com.com/ICANN+partying+like+its+1999/2010-1071_3-5495758.html

ICANN partying like it's 1999
December 20, 2004, 4:00 AM PT
By Declan McCullagh

It's been five years since Internet users had to worry about paying an extra $1 or so annual fee--akin to a tax--for each .com, .net or .org domain name they own.

Now the international organization that oversees domain names has rediscovered the idea. The Internet Corporation for Assigned Names and Numbers (ICANN) believes it needs a fatter budget funded by domain name fees--and plans to start charging domain name owners in a process that will begin next year.

Starting sometime in 2005, owners of .net domain names will have to pay a 75-cent additional annual fee to ICANN. There's nothing stopping ICANN from upping the levy in the future, and its executives have indicated that other top-level domains will be targeted as well.

Before deciding to play tax collector, though, ICANN should consider what happened back in 1999 that caused it to concoct and then abandon the idea.

[...remainder snipped...]
_______________________________________________
Politech mailing list
Archived at http://www.politechbot.com/
Moderated by Declan McCullagh (http://www.mccullagh.org/)

Posted by mikki at 10:41 AM | Permalink | Comments (0)