May 20, 2005

Intellectual Property Justice League (Ernest Miller)

Intellectual Property Justice League (Ernest Miller): "

Copyfighters may want to visit the IP Justice League of America, 'celebrating the only comic book of international super-star INTELLECTUAL PROPERTY POLICY super heroes!' Not much there yet, except some Warhol-esque portraits that rollover to declare:

And the following:
Can the IP Justice League save Wil Wheaton from super-villain Jack Valenti? Will they defeat his evil army of psycho culture pirates!? Whose side is Avril Lavigne REALLY on??
I guess we'll just have to stay tuned to the same IP Justice League Channel, same IP Justice League time for more. How about an RSS feed instead, so I know when it is updated?

(And would this group actually call themselves the Intellectual Property League? Wouldn't they use some other term?)

via BoingBoing


(Via Copyfight.)

Posted by mikki at 05:42 PM

April 28, 2005

Help Break the IP Stupidity Pact (Donna Wentworth)

Help Break the IP Stupidity Pact (Donna Wentworth): "

Not long after James Boyle penned his excellent Financial Times column bemoaning the 'evidence-free' way legislators craft intellectual property law and policy, Senator Rick Santorum gave us a prime example. Specifically, the Senator introduced a bill to stop the publicly funded National Weather Service (NWS) from publishing user-friendly weather data on the Internet. Why? Because he believes that private companies like AccuWeather would make even more money if they didn't have to compete with 'free.'

As Boyle pointed out in an earlier FT column, AccuWeather likely wouldn't exist at all if it weren't for the US policy of making taxpayer-funded raw weather data freely available at the cost of reproduction. In other words, the private weather industry is already benefiting -- richly -- from our tax dollars. Senator Santorum is proposing that we pay twice for our weather information in order to further line the pockets of private companies.

In my previous post on the subject, I suggested that very few people would challenge the Senator on his assumption that the weather industry can't compete with free -- even though it already is. Here's your opportunity. EFF has just posted an action alert on the Santorum bill with a model letter so you can tell your representative you oppose it. Check it out, add your own thoughts, and send a letter today. And don't forget to pass the word along -- we need each and every voice of reason out there to chime in on this one.


(Via Copyfight.)

Posted by mikki at 10:54 PM

April 22, 2005

James Boyle on Copyright Stupidity (Donna Wentworth)

James Boyle on Copyright Stupidity (Donna Wentworth): "

James Boyle has just delivered the pièce de résistance in his three-part series on copyright for the Financial Times: Deconstructing Stupidity. The stupidity in question is the way that governments typically make intellectual property law and policy -- that is, without evidence that it will produce the desired social or economic benefit.

'If the stakes were trivial, no one would care,' observes Boyle. 'But intellectual property (IP) is important. These are the ground rules of the information society. Mistakes hurt us. They have costs to free speech, competition, innovation, and science.'

Why, then, do we make these mistakes? According to Boyle, it's not only 'corporate capture' that makes governments stupid about copyright. They also suffer from any number of delusions, making them susceptible to 'anecdote and scaremongering.'

The film and music industries are tiny compared the consumer electronics industry. Yet copyright law dances to the tune played by the former, not the latter. Open source software is big business. But the international IP bureaucracies seem to view it as godless communism.

If money talks, why can decision-makers only hear one side of the conversation? Corporate capture can only be part of the explanation. Something more is needed. We need to deconstruct the culture of IP stupidity, to understand it so we can change it. But this is a rich and complex stupidity, like a fine Margaux. I can only review a few flavours.

The three flavors in this particular tasting: 'maximalism,' 'authorial romance,' and the legacy effects of 'industry contract.'

As Boyle writes, IP delusions are not merely stupidity. They constitute 'an ideology, a worldview, like flat earth-ism. But the world is not flat and the stupidity pact is not what we want to sign.'

Absolutely not. But delusions are by their nature difficult to shake.

In part two of the series, Boyle pointed out that in the US, we make weather data available at cost -- yet we have a thriving private weather industry. Now, Siva Vaidhyanathan brings news that Senator Rick Santorum (R-PA) wants to prevent the National Weather Service from giving away weather information because it competes with the Weather Channel.

'It is not an easy prospect for a business to attract advertisers, subscribers or investors when the government is providing similar products and services for free,' says Santorum in a Palm Beach Post article. How many people will challenge the Senator on his assumption that the weather industry can't compete with free? I'll wager not many -- despite the fact that it already is.


(Via Copyfight.)

Posted by mikki at 11:25 PM | Comments (0)

April 10, 2005

from the continuing-disappointment-that-is-the-NYTIMES department

from the continuing-disappointment-that-is-the-NYTIMES department: "

So there's a view about the file-sharing debate held by most people who don't know anything about the debate. It is a view the recording industry likes most people to hold. It is a view far from anything anyone interesting is saying.

The view - call it the uninformed stereotype (US) view - goes something like this: that there are just two sides to this debate, those who favor 'piracy' and those who don't. Supporters of Grokster are people who favor piracy, and who are against artists.

On Thursday, at the NYPL, I had the extraordinarily pleasure of being on stage with Jeff Tweedy and Steven Johnson, for a discussion titled 'Who Owns Culture?' The evening started with 15 minutes of me and my 'powerpoint' (actually, Keynote), and then a 50 minute discussion with Tweedy and me, moderated by Johnson. There was then time for questions from the audience.

It was an extraordinary evening. I had the chance before to talk to Tweedy, so I wasn't surprised. But he was extraordinary — funny, subtle, smart about the issues, and deeply passionate. Suffice it that neither he nor I (as is obvious to anyone on this page) subscribe to, or fit, within the US view. I explicitly denounced 'piracy'; Tweedy -- in context -- said nothing to support the view that people should infringe the rights of other artists.

David Carr of the New York Times was at the event. He wrote a review. Everyone I've spoken to loved the piece. I think they loved it because it was a piece printed in the Times, and we're a culture that loves attention more than accuracy.

The review is filled with quotes from Tweedy, taken out of context, to support the US view. Nothing in the article suggests anything was said at all contrary to the US view. One reading the piece would think, there they go again, those supporters of theft, and haters of artists.

I'm not sure why there needs to be a NYTimes, if its role is simply to reinforce what people already think, especially with pieces like this. God forbid the Nation's paper of record should reflect something more subtle or complex than the crudest view of an important debate.


(Via Lessig Blog.)

Posted by mikki at 09:08 PM | Comments (0)

April 07, 2005

What the Entertainment Industry Really Wants to Do to the Internet (Donna Wentworth)

What the Entertainment Industry Really Wants to Do to the Internet (Donna Wentworth): "

CoCo blog has what European Digital Rights says is the wish list by the European international versions of the MPAA and RIAA (the MPA and IFPI) for Internet service providers: Movie & Music Industry Proposals ISP Self-Regulation. Evidently, they want ISPs to:

Did I say 'wish list'? Sorry; that would be 'hit list.'


(Via Copyfight.)

Posted by mikki at 10:59 PM | Comments (0)

March 30, 2005

Supreme Court Justices Grill Both Sides at Copyright Hearing

Supreme Court Justices Grill Both Sides at Copyright Hearing: "

MGM v. Grokster Raises Questions About Innovation and Litigation

Washington, DC - The Electronic Frontier Foundation (EFF) was heartened to hear the Justices of the United States Supreme Court engage in a lively debate Tuesday about whether technology manufacturers should be held liable for the infringing activities of consumers. At stake is nothing less than the future of innovation in the United States - if vendors are held responsible for what people do with their products, even tech giants like Intel say they'd have to fire engineers and hire lawyers.

MGM and nearly a dozen other entertainment companies argued that peer-to-peer software manufacturers Grokster and StreamCast had built their businesses by distributing 'infringing machines.' But counsel for the entertainment industry, Donald B. Verrilli Jr. of the law firm Jenner & Block, scarcely finished his opening statements before the Justices interrupted with pointed questions about how his arguments would impact technological innovation. Justice Antonin Scalia asked how the industry would protect nascent technologies from 'out-of-the-box lawsuits,' and Justice Stephen Breyer pushed him to explain why MGM's argument wouldn't also apply to the iPod, Xerox machines, and even Gutenberg's printing press.

Richard G. Taranto of the law firm Farr & Taranto, who represented respondents Grokster, Ltd., and StreamCast Networks, Inc., replied that it was crucial for the Court to reaffirm its 21-year-old Betamax ruling, which held that companies should not be barred from selling products that may be used for copyright infringement if there is a potential for significant legal uses. Taranto also pointed out some of the many noninfringing uses for peer-to-peer software, including genomics research, archiving works in the public domain, and distributing new media whose creators use open copyright or Creative Commons licenses.

'The Justices asked all the right questions,' said EFF Senior Staff Attorney Fred von Lohmann, lead attorney for StreamCast. 'They were clearly worried about how this ruling would affect the future of technological invention. As Justice David Souter said, we shouldn't hang a sword of Damocles over the heads of America's innovators.'

The Court will likely issue a decision in late June or early July.

More about MGM v. Grokster.


Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation


(Via EFF: Press.)

Posted by mikki at 09:27 PM

March 28, 2005

Mark Cuban on Grokster

Mark Cuban on Grokster: "

Mark Cuban is a content owner. A content owner who understands that 'bits are bits' and wants the customer to get those bits 'in the way the customer wants to receive' them. A content owner who's exploring a range of digital content creation and distribution options. That's why, he says, he's funding the defense of MGM v. Grokster at the Supreme Court.

It won't be a good day when high school entrepreneurs have to get a fairness opinion from a technology oriented law firm to confirm that big music or movie studios wont sue you because they can come up with an angle that makes a judge believe the technology might impact the music business. It will be a sad day when American corporations start to hold their US digital innovations and inventions overseas to protect them from the RIAA, moving important jobs overseas with them.

That's what is ahead of us if Grokster loses.

With Cuban's help, we hope content owners and technology companies won't have to face that future. Thanks Mark!


(Via Wendy: The Blog.)

Posted by mikki at 10:33 AM

March 27, 2005

Mark Cuban Comes Out (Donna Wentworth)

Mark Cuban Comes Out (Donna Wentworth): " a 'little content' guy who decided to step up and defend innovation against Big Content by funding the Grokster defense (emphasis, mine):

It doesn't matter that the RIAA has been wrong about innovations and the perceived threat to their industry, EVERY SINGLE TIME. It just matters that they can spend more then everyone else on lawyers. That's not the way it should be. So, the real reason of this blog. To let everyone know that the EFF and others came to me and asked if I would finance the legal effort against MGM. I said yes. I would provide them the money they need. So now the truth has been told. This isn't the big content companies against the technology companies. This is the big content companies, against me. Mark Cuban and my little content company. It's about our ability to use future innovations to compete vs their ability to use the courts to shut down our ability to compete. It's that simple.

CNET piece; Slashdot discussion.


(Via Copyfight.)

Posted by mikki at 10:38 PM

March 16, 2005

Good News from the Broadcast Flag Fight (Donna Wentworth)

Susan Crawford has the scoop (emphasis, mine):

Good news from the DC Circuit today, which issued an opinion asking for further facts about petitioners' right to be in front of them complaining about FCC's jurisdiction in the broadcast flag matter. Everyone (including, apparently, the FCC) assumed quite reasonably that the petitioners had every right to be there -- in other words, everyone thought petitioners had "standing."

But the DC Circuit wasn't so sure about it. Under the applicable legal standard, you have to show a concrete, particularized, actual/imminent harm from an administrative rule in order to complain about it. The petitioners in this case include the American Libraries Association, Public Knowledge, and EFF. (Things would have been simpler if a single consumer electronics manufacturer had wanted to face the ire of the content community and join the lawsuit.)

At oral argument, petitioners' concrete etc. harm was sharply questioned -- how was one consumer's harm any different from that of the rest of the populace?

The court has given petitioners two weeks to provide statements of facts showing special harms caused by the broadcast flag rule -- and has provided some helpful hints: show us whether any of your members are engaged in storing TV broadcasts and sending them to distant locations; show us whether you'll be hindered in lawful copying and distribution; show us whether your member-educators (if you have any) will be hindered in distance education efforts.

I think this court wants to find standing. Once this legal threshold is in place, the court can walk right in and declare that the FCC had no jurisdiction to adopt the flag rule. And we'll be back at Congress.

The implications of this case are much broader than they may appear on the surface. FCC is asserting very broad jurisdiction over anything associated with the overall circuit of messages sent and received via all interstate radio and wire communication. The Madison River flap of two weeks ago is part of this overall picture. I don't think the FCC's powers extend beyond what is specifically given them by Congress -- and Congress hasn't given the FCC the internet, PCs, or consumer electronics devices.

When this hot potato is back in Congress's lap, it should act to lead the world in self restraint. Don't do it. Don't let one industry (content, law enforcement, or telecom) control another (high-tech innovation) without a strong social consensus to do so.


Posted by mikki at 01:24 PM | Comments (0)

Copyright Bull***t (Donna Wentworth)

Siva Vaidhyanathan @ Sivacracy, unearthing yet another demonstration of fair use dying a slow death:

Apparently Princeton Professor Harry Frankfurt does not understand his own job.

As a professor and author of the new book Bullshit, he has taken it upon himself to be a copyright cop as well. He sent a personal cease-and-desist letter to Paul Schmelzer, author of the brilliant and essential blog, Eyeteeth: A journal of incisive ideas.

Why? Because Paul quoted [a small portion] of his book. ...Here is text from his (copyrighted, of course) cease-and-desist letter:

Dear Mr. Smelzer:

It has come to my attention that you have placed a copy of my essay "On Bullshit" on your website. I appreciate the compliment. As you may know, however, the essay has recently been published as a book by the Princeton University Press. The management of the Press and I are concerned that your use of my essay may interfere with sales of the book. In any case, it constitutes a clear infringement of my copyright. I must ask you, therefore, to remove the essay from your website as soon as possible.

Harry Frankfurt

Now, I seriously doubt that Princeton University Press objects to a blogger quoting from one of their books for commentary or criticism. I would shudder to think that a major academic publishing house would be that ignorant of or hostile toward fair use.

In the spirit of using fair use before we lose it, Siva has some additional advice:

If you have a blog out there, copy and paste the exact text that got Paul in trouble. Post in on your blog. See what happens.

Better yet, someone at Princeton should scour Professor Frankfurt's body of work for his use of quotes from copyrighted material. Could he really have made a career without quoting?


Posted by mikki at 01:23 PM | Comments (0)

March 12, 2005

French Court Says Downloading for Private Use May Be Defensible (Donna Wentworth)

Via Frank Field @ Furdlog, this news from "On Thursday, the French Court of Appeal of Montpellier released a 22-year-old Internet user free of charges after he was sued for copying nearly 500 movies on Internet, burning them on CDs and sharing them with friends. The Court based its decision on the article L-122-5 of the French Intellectual Property Code stating that 'authors can't forbid copies or reproductions that are only intented for the private use of the copyist.'"

CoCo blog (who helpfully provides a link to the statute in English):

This does not mean that the Court has judged that movie downloading is now legal in France on a general basis. Though I have not (yet) seen the judgment, it (probably) gives the indication that private use may be a defense against a claim of copyright infringement for downloading. While this might be called a recognition of the private copying clause in the digital environment, it is not clear if this will hold up. There are currently about 50 comparable criminal cases pending, and in the past users have been sentenced for these acts.


Posted by mikki at 11:42 PM | Comments (0)

January 31, 2005

On Copyright Law and Myopia (Donna Wentworth)

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. Seth suggests we might also argue:

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.

BSA's logic is not unlike that of the National Association of Broadcasters (NAB). As Fred von Lohmann points out in Kill P2P to Save TV?, its brief in MGM v. Grokster suggests that the northern star for copyright law ought to be whether or not it keeps a single group of businesses -- broadcasters -- big and rich. Or more specifically, that one particular business model (adverts) for one particular industry be protected.

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 | Comments (0)

January 25, 2005

Once More Into the Betamax Breach (Donna Wentworth)

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.

Fascinating stuff -- and no doubt there will be much more to come. Once again, the spots to watch for briefs are here and here.


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

January 21, 2005

Supreme Court Date Set for Grokster

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.


Cindy Cohn
Legal Director
Electronic Frontier Foundation

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation

[EFF: Press]

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

January 08, 2005

Music Industry Must Respect Privacy of Filesharers

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.


Cindy Cohn
Legal Director
Electronic Frontier Foundation

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation

[EFF: Press]

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

EyeTV: Get Your Fair Use While the Getting's Good (Donna Wentworth)

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 | Comments (0)

New Berkman White Paper: Content and Control (Donna Wentworth)

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 | Comments (0)

The iTunes/Apple Lawsuit and a Much Overdue Comparision to Microsoft

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 | Comments (0)

December 01, 2004

How to Get In the Game (Donna Wentworth)

One way: give up today's (and/or tomorrow's) wildly over-priced Starbucks latte and make a donation to IPac.


Wired has a nice new piece explaining why this will make a difference for the copyfight in the US, including a few words from uber-copyfighter Rep. Rick Boucher (D-VA) -- one of the six pro-balance candidates IPac supported in this past election.

Later: Chris Cohen:

IP is an area of legislation where politicians can hand huge rewards to companies at the expense of the public without really getting any negative attention. People just don't know how important IP law is, don't realize they are actually the ones losing out, or don't care because IP doesn't make for a great above-the-fold story. As the copyright law has expanded so massively in the last decade, however, the public's interest in IP has really been piqued.
It is only natural that eventually an IP PAC would pop up. It would obviously make a huge difference to the future direction of IP law if the public took such an interest in IP that politicians were forced to react, and particularly if donors other than the MPAA and the RIAA began to consider IP issues in who they supported financially. That will be a next step that may be a few years off but appears to be happening.


Posted by mikki at 10:53 AM | Comments (0)

November 20, 2004

More good McCain work - From Larry Lessig

Senator McCain has become an important force for good in the land of IP extremism. I reported a hold he had placed on H.R. 4077 because of valid concerns about whether the freedoms it granted (to enable parents to filter "smut" from films) would be read to deny fair use in other cases.

The same careful eye has now caught a very elegant trap buried within the Intellectual Property Protection Act of 2004.

That bill adds some "Anti-Counterfeiting Provisions" to regulate counterfeit or illicit "labels." Most thought its target was physical labels. But a careful reading revealed a real ambiguity in the statute, suggesting (as the MPAA believed) it regulated both tangible and intangible labels.

Why is that a problem? Well if the act makes it an offence to distribute unauthorized copies of labels, then there's a very simple way for content owners to hack around fair use: embed a watermark into the content, and then any clip, even if fair use, would also constitute an unauthorized copy of a label. Thus, DMCA-like, what copyright law gives, this labeling law would take away.

Senator McCain is thus floating an amendment, to limit the regulation of "illicit labels" to physical labels only. And he has proposed a savings clause, which states:

Savings Clause.--Nothing in Section 2318 of title 18, United States Code, as amended by this title, shall be construed to restrict defenses or limitations on rights under title 17, United States Code, for a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, or a work of visual art, that a genuine certificate, licensing document, registration card, or similar labeling component is (1) affixed to, enclosing, or accompanying, or (2) designed to be affixed to, enclose, or accompany.

Very nice work by a very careful Senator. The Justice Department had expressed similar concerns about an earlier version in March. But the Senator has now given those concerns real life.

[Lessig Blog]

Posted by mikki at 07:53 AM | Comments (0)

November 16, 2004

Senate May Ram Copyright Bill

Yet another encroachment of Hollywood into our homes in an attempt to dictate what we do with materials we PURCHASE from them. It's bad enough that they block our ability to forward through commercials on DVDs, but now they want to make it ILLEGAL to fast forward through them with your Tivo or ReplayTV. Absolutely pathetic. It's about time consumers stood up and said "enough is enough."

As early as this week, the Senate may try to quickly pass a bill that would radically change copyright law in favor of Hollywood and the music industry. One provision: Skipping commercials would be illegal. Michael Grebb reports from Washington. [Wired News]

Posted by mikki at 09:36 AM | Comments (0)

October 29, 2004

Court Orders New Protections for People Targeted by RIAA

Public Interest Groups Help Protect Anonymity of Accused Infringers

Pennsylvania - A district court in eastern Pennsylvania has issued an order that will force the Recording Industry Association of America (RIAA) to better respect the privacy and due process rights of people it has accused of copyright infringement. After RIAA members asked the court to issue subpoenas to Internet Service Providers (ISPs) for the names and addresses of people they suspect of infringement, the court issued an order that the ISPs must first send their customers detailed notices about the subpoenas, including information about how the accused suspects can contest the subpoenas.

The controversy arose after the music industry filed a flood of lawsuits against anonymous individuals whom the industry claimed were sharing copyrighted music. Because the industry did not know the identities of the individuals, it served subpoenas to the individuals' ISPs seeking their names. The court held that before the ISPs turn over these names, they must send notices to the individuals advising them of their rights. This allows a targeted individual to make an intelligent decision about what steps to take before his or her identity is disclosed.

The Electronic Frontier Foundation (EFF), Public Citizen, the national American Civil Liberties Union (ACLU), and the ACLU's Pennsylvania affiliate participated in the case as friends of the court. The organizations have been heavily involved in protecting the right to anonymous speech and ensuring that people sued for copyright violations are made aware of their rights.

"The constitutional right of individuals to anonymous speech is just as important on the Internet as it was when the Federalist Papers were published," said Chris Hansen, an attorney for the ACLU. "The court has properly found that before someone's identity is disclosed, that person should at least have a right to be heard and to raise certain defenses."

"Judge Rufe has required the recording industry to meet the same standards of proof that are required when other plaintiffs seek to identify anonymous Internet users," said Public Citizen attorney Paul Levy. "We can only hope that judges throughout the country will follow this example."

EFF legal director Cindy Cohn added, "Receiving notice from your ISP that you are being sued by the record companies is a terrifying experience for the grandmas, students, and working mothers who have been caught up in the RIAA's lawsuit crusade. By requiring ISPs to include basic information such as the right to challenge lawsuits and where to go for help, the court took a big step toward helping people understand their options."


Cindy Cohn
Legal Director
Electronic Frontier Foundation

Paul Alan Levy
Public Citizen Litigation Group

Paul Silva
Media Relations Associate
American Civil Liberties Union

[EFF: Press]

Posted by mikki at 02:21 PM | Comments (0)

INDUCE's biggest threat: Me2Me apps (Jason Schultz)

During the CATO Institute panel on INDUCE last week Markham Erickson of NetCoalition made an interesting point. While discussing the various flaws in the INDUCE drafts, he noted that several versions attempted to outlaw P2P appliations based on language prohibitng specific technological architectures. For example, some of the drafts from the Copyright Office specifically targeted technologies that were "capable of widespread distribution of copyrighted materials."

Markham noted that when he talked to engineers in tech companies about this particular aspect of INDUCE, their main concern was that the direction that P2P architecture is headed (decentralized services vs. central server intermediaries) is the same direction that all network technologies are headed. Today's cutting edge markets -- Wifi, WiMax, Camera Phones, MP3 players, etc. -- are all trending toward flexible decentralized distribution mechanisms, just as P2P does. Therefore, any approach to INDUCE that targets a specific or general architecture threatens not only legitimate innovation in principle but also legitimate innovation in practice, at least according to the engineers on the ground.

This got me to thinking. Why were the RIAA and MPAA so insistent during the negotiations on a broad technological definition? Why not just write a bill that narrowly targets P2P companies by name and be done with it? (For example, one could simply make it illegal to write a software program that utilizes the GiFT, FastTrack, Gnutella, Bittorrent, or OpenFt protocols and that would effectively ban most current P2P apps).

The reason, of course, is that INDUCE is not really just about P2P apps. It's about the future of all distribution technologies and in particular, about what I like to call "Me2Me" apps. As network and distribution technologies evolve, they offer consumers and computer users more and more control over their own media. P2P technology broke into the mainstream as a mechanism for distributing files amongst different people, but the same architecture is becoming popular among technologies designed to distribute one person's content amongst his or her various platforms.

For example, consider iTunes and the iPod. iTunes allows one to stream music to any computer on your local area network. It also allows you to transfer files to any number of iPods. It also allows you to rip, mix, and burn CDs. In essence, it allows massive distribution of content, albeit primarily to one's self, family, and friends.

Or consider the Media Package on Tivo via Wifi. I use my Tivo Media package to listen to music streamed from my computer over my home wireless network. I also use it to view photos. Both of these mechanisms are "Me2Me" distribution technologies which allow me to shuffle my content from one platform to another. Technologies like the Airport Express and SlingBox further extend this capability by allowing you to shift content from your computer to stereo or from your Tivo to your laptop or PDA. And finally, don't forget cell phones. More and more, they are becoming dissemination technologies for audio, video, photos, and music.

The next generation will go even further. Imagine a wireless iPod that can synch with any iTunes application within 75 feet. Or a MP3 player for your car that automatically syncs with your home computer when you pull into the driveway. Or a media player on your laptop that automatically syncs with your TiVo to download the latest episode of your favorite Prime Time addiction.

This is, of course, the RIAA and MPAA's worst nightmare. Both industries have based their business models on controlling each and every permutation of playback for their content. The RIAA wants to make you pay when you buy the CD, when you download the iTune, when you listen to an Internet webcast, etc. The MPAA wants to charge you at the theater, for every copy of a DVD you buy, and (via advertising) for every show you watch on TV. Yet the more and more we as users and consumers are allowed to control and choose our own form of playback, the less Hollywood can justify charging us for each one. The more utility we get out of Me2Me apps, the less we're willing to pay someone for an extra copy or delivery mechanism. In the end, Me2Me technology may pose a larger threat to Big Cotent's bottom line than P2P ever did.

So how does this play into the politics of INDUCE? Well, P2P has been an easy political target for the RIAA and MPAA. Its an easy case of massive unauthorized distribution. In the Grokster case, they were able to show that over 90% of P2P is used for infringement of copyright. Its transfers take place outside the privacy of one's home and often include socially-stigmatized content like pornography, spam, spyware, and viruses.

Me2Me technology, however, would be much much harder to outlaw. Many Me2Me uses would arguably be fair or non-infringing uses. For instance, they tend to be private uses involving only family or friends. Many would involve use of media legitimately purchased by both the sender and recipient of the content (i.e. oneself). Thus, under current copyright law, it would very difficult to outlaw any of them. It would also be difficult to chastize them politically in front of Congress.

This is why the battle over DRM, the Broadcast flag, and now INDUCE has become so important for them. If the RIAA/MPAA wait too long, more and more platform distribution technologies with primarily legal uses will come to market and undermine their case for outlawing specific architectures. As these technologies take hold, public and political sentiment will continue to grow against harsher restrictions and enforcement and more toward allowing and embracing such technologies. Thus, the window of opportunity for the content industry to pass a restrictive law like INDUCE is very short. They must act now (dare I say pre-emptively strike?) while they can to frame the targets as a bunch of "bad" actors (i.e. the P2P companies) before too many "good" actors (i.e. Me2Me products and services) infiltrate the market and obfuscate the ability to outlaw one architecture without threatening the others.


Posted by mikki at 02:20 PM | Comments (0)

October 13, 2004

Supreme Court Denies RIAA's Cert. Petition: DMCA not a fishing license

The Supreme Court today denied cert. to the RIAA in RIAA v. Verizon, leaving the D.C. Circuit's opinion as law. Good. Bad as much of the DMCA is, it was never meant to give the RIAA blank fishing licenses to issue subpoenas for Internet users' identities. As we've been establishing in this case and in subsequent "Doe" suits, it takes more than a bare allegation of copyright infringement to overcome Internet users' privacy and First Amendment rights.

[Wendy: The Blog]

Posted by mikki at 12:33 PM | Comments (0)

October 01, 2004

Dangerous Ruling Menaces Rights of Free Software Programmers

Contract and Copyright Trump Fair Use and Competition in BnetD Case

St. Louis - Fair use was dealt a harsh blow today in a Federal Court decision that held that programmers are not allowed to create free software designed to work with commercial products. At issue in the case was whether three software programmers who created the BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA).

BnetD is an open source program that lets gamers play popular Blizzard titles like Warcraft with other gamers on servers that don't belong to Blizzard's service. Blizzard argued that the programmers who wrote BnetD violated the DMCA's anti-circumvention provisions and that the programmers also violated several parts of Blizzard's EULA, including a section on reverse engineering.

The Electronic Frontier Foundation (EFF), co-counsel for the defendants, argued that programming and distributing BnetD was fair use. The programmers reverse-engineered purely to make their free product work with it, not to violate copyright.

EFF Staff Attorney Jason Schultz said, "Consumers have a right to choose where and when they want to use the products they buy. This ruling gives Blizzard the ability to force you to use their servers whether you want to or not. Copyright law was meant to promote competition and creative alternatives, not suppress them."

EFF will appeal the case, challenging the court's ruling that creating alternative platforms for legitimately purchased content can be outlawed.


Jason Schultz
Staff Attorney
Electronic Frontier Foundation

[EFF: Press]

Posted by mikki at 08:40 PM | Comments (0)

September 21, 2004

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?"


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.


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?


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?


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

October 18, 2003

RIAA Croons a New Warning Tune

This type of strategy is very similar to what goes on in the domain name arena. Threaten unsophisticated people into paying money, whether they are "guilty" or not. If they don't pay, the litigation costs would likely be far more than the settlement. Then the RIAA can parade the number of settlements as proof of "guilt."

Will they ever learn that suing one's customers is not a good means of doing business?

The recording industry group says from now on it will send out warning letters to suspected music-file traders before taking them to court, allowing them to negotiate a settlement. Those who do not respond within 10 days will be sued. [Wired News]

Posted by mikki at 09:36 AM

October 10, 2003

SunnComm won't sue grad student

Seems that SunnComm got some common sense and will not sue

In an abrupt reversal, the antipiracy company decides not to sue the Princeton University grad student who published a paper that describes how to bypass CD copy protection technology. [CNET]

Posted by mikki at 03:58 PM

Student sued over CD piracy study

Use of the shift key is now going to be actionable under the fatally flawed DMCA. Will the stupidity ever stop?

A US student is being sued for showing how to get around anti-piracy technology on a new music CD. [BBC News | TECHNOLOGY]

Posted by mikki at 07:30 AM

October 03, 2003

CDT concerned about copyright enforcement

In a letter to the House Subcommittee on Courts, the Internet, and Intellectual Property, CDT expressed support for the goals of a pending copyright enforcement bill (HR 2517) but highlighted privacy concerns raised by a provision that would facilitate sharing of information between law enforcement agencies and private copyright holders. CDT also wrote that a provision designed to reduce the spread of spyware is overly broad. The Subcommittee was scheduled to complete its markup of the bill on October 2nd, but debate over controversial provisions delayed final consideration until the following week. October 3, 2003 [Center for Democracy and Technology]

Posted by mikki at 06:14 PM | Comments (0)

September 18, 2003

Privacy latest salvo in DMCA war

As the U.S. Senate explores the privacy problems with the DMCA's subpoena process, one senator introduces a bill to repeal that section of the law. [CNET]

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

September 11, 2003

Lawsuit Attacks RIAA Amnesty Plan

A California man has filed a legal challenge to the music industry's amnesty program. The complaint says the plan will not protect file traders from lawsuits, contrary to what the RIAA promises. By Katie Dean. [Wired News]

Posted by mikki at 10:23 AM | Comments (0)

September 06, 2003

Google Pulls Links

In a very scary move, Google has complied with the demands made by Kazaa's parent company and pulled links to sites that it has deemed "infringing."

Declan McCullagh reports further in this CNet Article.

Posted by mikki at 10:29 PM | Comments (0)

August 27, 2003

writing to ms. boland

The following call to action from Larry Lessig's Blog is WELL worth your consideration. While many may think that this is not directly within the mission of the Domain Name Rights Coalition, strongarming of user, author, and intellectual property holders' rights by monied corporate interests is precisely one of the things that the DNRC wishes to fight. In this case, open source software is software governed by copyright laws, in which the intellectual property holder has made a decision of how to use his or her rights in order to benefit the industry and users as a whole. It recalls the original constitutional reason for the grant of intellectual property rights; in order to provide incentive for creation of works that will eventually be brought into the public domain. Only in certain cases is that incentive solely monetary.

The pattern followed by corporate interests who feel threatened by non monetary incentives for creation of useful works is precisely the same as has occurred with regard to domain name holders offering information that may harm the current status quo. In many cases, it is easier to stifle the easy accessability to that information by taking access to intuitive domain names, than to do what they truly desire - silencing the speaker.

Those concerned with domain name rights must also be concerned with any other practices in which corporate power is used to strongarm individuals and organizations into limiting discourse. Please consider writing to Ms. Boland, a government employee paid with your tax dollars, and helping to educate her as to the real issues in these cases.

From Larry Lessig's Blog:

Ed Black of the Open Source and Industry Alliance has written Ms. Lois Boland a very nice and good letter about the recent statements about “open source.”

Meanwhile, there’s much reporting that Microsoft is behind the lobbying to kill the WIPO meeting. I don’t know anything about that (for some reason, I’ve been removed from Mr. Gates’ lobbying-strategy list). But it is useful to contrast the sophisticated, moderate, and well-informed work of Microsoft’s GC, Brad Smith, about “open source” software, recently published in a Joint AEI/Brookings book.

In addition to Ed Black’s letter, and perhaps letters from you, she might find Brad Smith’s essay useful.

[Lessig Blog]

Posted by mikki at 12:30 PM | Comments (0)

August 25, 2003

California Supreme Court Upholds Free Speech in DVD Case

Sets High Standard for Publishing DVD Decoding Information [EFF: Press]

San Francisco - The California Supreme Court ruled today that publication of information regarding the decoding of DVDs merits a strong level of protection as free speech and sent a key case back to a lower court for a decision on whether a court can prevent Andrew Bunner from publishing this information, whether on the Internet, on a T-shirt, or elsewhere.

In the case, DVD Copy Control Association (DVD-CCA) v. Bunner, California resident Andrew Bunner was one of thousands of people worldwide who republished DVD-decryption software called DeCSS. DVD-CCA, the company that licenses the use of the DVD encryption code, convinced a trial court to issue an order barring publication of DeCSS pending a final decision in the case, claiming that DeCSS contained its trade secrets. The Court of Appeal ruled that the ban on publication was unconstitutional. The Supreme Court today required the Court of Appeal to reexamine the evidence.

Posted by mikki at 02:35 PM | Comments (0)