As reported by Donna Wentworth on Copyfight, Verizon has emerged victorious in its effort to thwart the RIAA's subpoenas under the DMCA (Verizon Wins Victory for Privacy). The US Court of Appeals for the District of Columbia Circuit has reversed a lower court's ruling and held that the RIAA may not send subpoenas to ISPs for information on alleged infringers using P2P. Read the DC Circuit decision: RIAA v Verizon [PDF].
The decision is a victory for privacy, but not a victory for privacy as such.
The result was reached on a technical reading of the statute, and turned on the fact that a subpoena can only be sent if a DMCA notice-and-takedown letter can also be sent. A DMCA notice-and-takedown letter can only be sent to the ISP if the ISP can remove access to the material (and not if the only way to remove access is to terminate a user's account). Thus, a copyright owner cannot send a DMCA notice-and-takedown to an ISP for what a user shares via P2P (the ISP can do nothing but terminate the user's account, which is not a remedy under a DMCA notice-and-takedown letter). Consequently, if no notice-and-takedown may be sent, no subpoena may be issued.
The constitutional issues that would have made this a victory for privacy as such, or for freedom of expression, were not addressed by the court.
What does all this mean?
Continue reading "Verizon Wins Against DMCA Subpoenas"Nap·ster·i·za·tion n. The disruption by new technologies and digital media of old economy institutions and analog frameworks.
Mary Hodder, of the bIPlog, has started a new blog dedicated to the process of Napsterization. The mission of the blog is described as follows:
Napsterization.org blog focuses on positive, fair-use and legal examples of peer-to-peer file sharing of works approved by their creators for sharing, helpful in learning about works that are then lawfully purchased, or otherwise considered fair use under the "fair use doctrine" in American copyright law or the copyright laws of other countries.The blog also gives examples of digital expresssions of disruptive technologies effects and old analog systems and institutions, as well as analysis and opinion of the effects of distruption.
C|Net News reports that more government organizations, this time in Israel and Texas, are adopting or testing open source desktop software, such as OpenOffice, as an alternative to Microsoft Office software (OpenOffice makes government inroads). This is great news. However, I'm not nearly as concerned that the government uses Microsoft software as that the government organizations are not committed to open formats. Sure, the government should be able to use Microsoft Office software if it is more efficient, but the government should publish and receive documents in open formats. I shouldn't need proprietary software to open a government document properly. I applaud the switch to open source, but I would cheer a firm commitment to open formats.
Using a TiVo is a conversion experience. It transforms the way you interact with broadcast media and creates entirely new expectations regarding entertainment, even more so, in many ways, than MP3 players. This is why I am excited by a number of reports this week regarding personal media recorders, such as a story in Newsday that notes a high demand for DirecTV set-top boxes that include TiVo (TiVo-Based Set-Top Boxes in High Demand).
I'm excited because everyone I know who uses TiVo won't go back to traditional television viewing. Simply using TiVo creates consumer expectations that are going to run smack dab into the anti-consumer mandates of the broadcast flag. Sure, the FCC says that the broadcast flag won't inhibit uses consumers have today, but it does and will. People habituated to the ease of use of TiVo, of burning shows to DVD, of networking television throughout the home, are in for a rude awakening when the broadcast flag takes effect. Frankly, there are going to be some seriously inconvenienced consumers come July 2005 and I would hate to be the politician on the other end of their anger. I can see the bumper stickers now: The FCC can have my TiVo when the pry it from my cold dead fingers.
Of course, the more people habituated to TiVo, the bigger the resulting backlash, which is why I recommend giving TiVos as holiday gifts for all your TiVo-less friends and family (there is a good chance it will be the best gift they get this season). I'm not really a big believer in consumerism ... but sometimes consumerism and activitism go hand in hand.
Of course, I'm using TiVo in the generic sense. Add the homemade touch (like those holiday cards you made from posterboard, glue and sparkles in elementary school) by building your friends an open source TiVo (Freevo, MythTV, KnoppMyth, XMLTV). By the way, MythTV explicitly supports the pcHDTV card and undoubtedly will support software HDTV as well (GNU Radio: Hacking the RF Spectrum with Free Software and Hardware).
As CNN notes in an otherwise slow newsday, porn is a popular business on the internet (Sex sells, especially to Web surfers). However, see Seth Finkelstein's dissection of the "report" CNN is relying on (N2H2 "State Secrets" - PR and lying with statistics [part 1]) and (CNN, "web porn", and censorware PR Managers).
Regardless of the validity of the report, it is undisputed that pornography is popular on the internet, including P2P networks (of course, porn has been popular in every medium). Note, that contrary to some claims, pornography hasn't been shown to be more of a problem on P2P networks than the internet generally as a leaked GAO memo obtained by TechNewsWorld concludes (U.S. Congress: P2P E-Smut 'Not Necessarily' More Dangerous than Other Forms).
In any case, the debate over compulsories has raised a serious barrier to their implementation - the political unpopularity of systems which will provide cross-subsidization for pornography. In other words, taxes (whether levy or general) would be collected and then distributed to pornographers. This would not be, to put it mildly, politically popular. Furthermore, I use the term "pornography" only as the most blatant example of content that would be politically unpopular. I can imagine, for example, that certain genres of music, such as "gangsta rap," would raise similar objections (how would people feel about tax dollars subsidizing music that glorifies cop-killing?). This is a serious problem and one that hasn't really been addressed by proponents of government mandated compulsories, especially given the track record of political debate over the relatively small amount of money dedicated to the National Endowment for the Arts.
Nevertheless, the issue of compulsories and pornography may create other problems as well. One I am concerned about is the potential for mandatory filtering to go along with the mandatory compulsories. Although none of the proposed compulsory systems speaks to the issue of filtering (and I am sure the proponents would oppose it), the systems certainly enable a mechanism that would make such filtering possible. All of the proposed government mandated systems envision some form of centralized registry for copyrighted works so that the works can be monitored and tracked and appropriately compensated. How much more of a step would it be to require works in the registry to also include self-labeling information?
I can imagine that many people would make the claim that, for example, pornographers shouldn't be compensated for having their files shared by minors. Two 15-yr olds file share a pornographic movie. Should the pornographer be compensated? If not, then the system will have to include self-labeling by the pornographer as well as parental controls (filters) in the file-sharing/playback devices. How will this work? Will political pressure force "voluntary" labeling schemes onto content producers who wish to be compensated? How will the survey/monitoring systems handle devices with and without filtering mechanisms?
No compulsory scheme advocates for labeling and filtering. However, we should consider likely ramifications of such compulsory schemes, and increased political pressure for labeling, whether "voluntary" or not, is likely.
C|Net News reports that Toshiba will be unveiling a new micro hard drive, about the size of a quarter, next month (Spare a microdrive, Toshiba?). The storage capacity is anticipated to be about 1-4 GigaBytes. Hard drives continue to kick Moore's Law's behind. Any consumer electronics device worth more that about $100 will soon have massive amounts of storage available to it. The advent of such huge amounts of storage everywhere has some important implications of intellectual property law. In particular, it significantly raises the cost of a mandatory DRM dystopia as well as the costs of monitoring for compulsory licensing schemes. Levy compulsory systems that raise money through a tax on consumer electronics and connectivity will be challenged by such rapid development. The digital revolution is far from over.
Prof. Ed Felten, who attended the Alternative Compensation Systems conference this past week, has made a challenge to compulsory licensing proponents on Freedom to Tinker (Devil in the Details):
So here is my challenge to compulsory enthusiasts: tell us, in technical detail, how you propose to do the measurements. You don't have to give us working code, but do tell us which programs you would write or modify, and what specifically they would look for. Tell us how you would cope with backward compatibility, and the diverse formats in which people download and store music. Tell us how you would deal with non-PC platforms such as Macs, Linux boxes, and iPods, as well as non-traditional network setups such as public WiFi access points.
For example, monitoring can be optional for voting systems. If your devices support monitoring, then they can help you allocate how your "votes" are "spent" based on use. However, since it is a voting system, the monitoring can be optional.
For a Nielsen-type system the monitoring issue is somewhat easier since there are a smaller number of families/devices being monitored and they have volunteered for duty (meaning compliance would be higher). PC Software for the three major desktop systems (MS, Mac, Linux) that monitors P2P usage (downloads, uploads, plays) might be all that is necessary to be acceptable, given how imprecise Nielsens are in the first place. If necessary, there might be some extension of play monitoring to some mobile devices, perhaps specially configured devices provided free of charge to the Nielsen family.
The problems of monitoring for voting and Nielsen-type systems don't seem particularly challenging to me (unlike widespread monitoring of all users). However, voting and Nielsen-like systems create their own set of peculiar challenges.
Copyright Scholar and Law Professor Jessica Litman has posted a new work in progress dealing with the question of file-sharing and compulsory license (Sharing and Stealing). It is an interesting paper, and one that I am thinking about and hope to write a few more comments on. However, I did want to point out a sentence that has been quoted on Legal Theory Blog and Copyfight:
The fact that more than sixty million consumers are currently exchanging music over peer-to-peer networks in the U.S. gives them a stake in the building consensus and both a moral and a political claim to a seat at the copyright bargaining table.
I don't believe that the fact that you file-share gives you any more moral or political claim to a seat at the copyright bargaining table. Copyright is about issues of culture and free speech. I think that is a sufficient basis for a strong moral and political claim for every citizen to have a seat at the copyright bargaining table. Prof. Litman certainly didn't mean that only file-sharers have a right to be at the bargaining table, but the impression given is that file-sharers somehow have privileged status.
Sixty million people can't be wrong is the oft-heard phrase. Yes, they can. A stronger moral claim to be part of the bargaining process can be made by those who boycott the artists whose representatives attack innovation and fair uses, rather than those who merely desire "free music."
C|Net News has published an unsigned commentary lamenting the lack of encryption defaults on WiFi gear (A fate worse than lack of access). According to the opinon piece, the Wi-Fi Alliance does not request WiFi manufacturers to turn on Wired Equivalent Privacy (WEP) as a default.
Of course, consumers can easily enable WEP if they so desire (it has been part of the basic instructions for every WAP I've set up). But C|Net is concerned that consumers aren't using WEP because, "Consumers may disregard the risk [of not using WEP] for two reasons: They don't value the resources or data on their network, and WEP is not completely effective against break-ins." Well, number two is certainly a consideration. If I was worried about security, I wouldn't use WEP, I would stick with a physical LAN. However, there is a third option ... not that people don't value their resources, but rather that they do find them so valuable that they would want to share them with others. I value my data and resources, but I also am willing to share those resources through means that require little effort on my part.
C|Net has an answer for those who like to share: bad people might take advantage:
What consumers may not be considering is that open access leaves their networks vulnerable to hijackers who may want to launch an anonymous virus from their broadband connection or download child pornography.
If the virus is anonymous, what does it matter where it is launched from, as long as it can be launched? There is plenty of child porn to be had without going through the trouble of using WAPs. But to the extent that WAPs are useful for downloading child porn, WEP will be a mere inconvenience. In other words, you can make access impossible for the vast majority of good citizens in order to inconvenience technically sophisticated hackers and similar bad actors.
I'm not sure why C|Net is against open access, but the arguments leave much to be desired.
