About this Author
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
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Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T gmail.com
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June 30, 2004
Posted by Ernest Miller
Self-proclaimed LawGeek, EFF attorney, and fellow Copyfighter Jason Schultz posted a neat little comparison of the Long Room Library at Trinity College in Dublin and the Jedi Archives in Star Wars: Episode 2: Attack of the Clones (George Lucas: Public Domain Pirate). See for yourself:
 
Jason notes that "Lucas can't be sued for copyright infringement because the Long Room Library was built between 1712-1732. Lucky for him there wasn't a Thomas Burgh Copyright Term Extension Act back then. I mean theft is theft, right? Just like shoplifting a CD from a music store." Well, here is something that is still in copyright, but Hollywood thinks can be stolen:
 
The first photo, according to the Museum of Hoaxes (Lady Liberty on Lake Mendota) is thanks to: Jim Mallon and Leon Varjian, the two leaders of the University of Wisconsin-Madison's notorious Pail and Shovel (P&S) party ... [who had] promised to buy the Statue of Liberty and bring it to Wisconsin. Being men of their word, they actually made good on their campaign vow, much to everyone's surprise....Varjian claimed that the statue had been flown in by helicopter, but that the cable holding it had snapped causing Lady Liberty to crash through the ice until only the top of her head and her arm remained above water. The other photo is from some bogus disaster movie, called The Day After Tomorrow or some such pretentious nonsense.
via Satellite News
Comments (2)
+ TrackBacks (0) | Category: Copyright
Posted by Ernest Miller
WIRED reports on the launch of EFF's Patent Busting Project (EFF Publishes Patent Hit List). Slashdot discussion here: EFF, PubPat Each Seeking Some Patent Sanity. This is a much needed project, as patent abuse has become a rampant problem. EFF explains it this way: Unlike most technologies, software and the Internet have attracted a vast number of small business, non-profit, and individual users – each of whom has adopted and built upon these resources as part of their daily interaction with computers and the online world. From open source programming to online journaling to political campaigning, the average citizen is using new technology online and on her desktop as often as any traditional company.
With this increased visibility, however, comes increased vulnerability. Previously, patent holders had only targeted competing companies. These companies have established legal departments and outside counsel and are thus able to defend against illegitimate patent threats. Now some patent holders have begun to set their sights on the new class of technology users–small organizations and individuals who cannot afford to retain lawyers. Faced with million-dollar legal demands, they have no choice but to capitulate and pay license fees – fees that often fund more threat letters and lawsuits. And because these patents have become cheaper and easier to obtain, the patentee’s costs can be spread out quickly amongst the many new defendants. Our patent system has historically relied on the resources of major corporate players to defeat bad patents; now it leaves these new defendants with few if any options to defend themselves.
Illegitimate patents can also threaten free expression. More and more people are using software and Internet technology to express themselves online. Website and blogging tools are increasingly popular. Video and audio streaming technology is ubiquitous. E-mail and Instant Messaging have reached users of all ages. Yet because patents can be anywhere and everywhere in these technologies, the average user has no way of knowing whether his or her tools are subject to legal threats. Patent owners who claim control over these means of community discourse can threaten anyone who uses them, even for personal non-commercial purposes. We lose much if we allow overreaching patent claims to reduce the tremendous benefits that software and technology bring to freedom of expression. Hmmm...I wonder what would happen if you put a law similar to the patent law (only more flawed) into the hands of just about anyone who wants to abuse it (copyrights being even easier to obtain than patents)? Imagine a small team of lawyers company that put together a portfolio of copyrighted works that are shared (at least somewhat) via various networks and then start going after individuals and companies who didn't infringe the works, but "induced" infringement by numerous, unknown others. Even if the case is winnable, defending it will be very costly. Small organizations and individuals who cannot afford to retain lawyers will have no choice but to capitulate and pay license fees – fees that often fund more threat letters and lawsuits.
Yes, the INDUCE Act (née IICA) would have yet another unintended consequence.
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+ TrackBacks (0) | Category: INDUCE Act | Patent
Posted by Ernest Miller
What if CD burners had to be removed from the shelves until a license from ALL rights holders could be obtained. Would eight years have passed until the shelves were re-stocked?
- David Touve
The INDUCE Act (née IICA) would definitely have made this a possibility if it had been in force when CD burners were introduced. It is unlikely the RIAA would go after them today (but who knows? Maybe they've been saving boxes of "evidence" just in case.) After all, why would burner companies need to sell so many CD burners that could burn Red Book Audio? The burner manufacturers must certainly have known there aren't that many musicians and that the biggest use for the drives (at least the Red Book Audio capabilities) would be nothing less than piracy.
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+ TrackBacks (0) | Category: INDUCE Act
Posted by Ernest Miller
Legal website Findlaw has released the results of a study about Americans' attitudes toward the RIAA lawsuits against filesharers. Read the press release: FindLaw Survey Reveals RIAA Lawsuits Unpopular with Americans. The survey found that: According to the national survey by FindLaw, 56 percent of American adults oppose the lawsuits. Thirty-seven percent support the industry's legal actions. Seven percent of those surveyed had no opinion. One thousand adults were surveyed, with results accurate plus or minus three percent. Problem. The questions were apparently regarding the RIAA suing downloaders. Downloaders. Even survey firms are still so clueless they can't distinguish between downloaders and uploaders. I imagine the percentages would be somewhat different if the questions were framed regarding uploaders, though I'm sure the lawsuits will still be unpopular.
That's not the important point, however. In the near term, this survey will lend support to those trying to get the INDUCE Act (née IICA) passed. One of the major reasons that the RIAA, MPAA and BSA ostensibly support the INDUCE Act is because they claim to not want to sue end-users but only the P2P companies. This survey will lend their argument support. For example, let's see what Sen. Orrin Hatch (R-UT) had to say about this issue when he introduced the Act: In theory, a rule that immunizes inducement still permits enforcement against those induced to infringe. At first, this remedy seems viable because copyrights have traditionally been enforced in lawsuits against direct infringers who actually make infringing copies of works.
But a fallacy lurks here: The “direct infringers” at issue are not the traditional targets for copyright enforcement. In fact, they are children and consumers: They are the hundreds of millions of Americans – toddlers to seniors – who use and enjoy the creative works that copyrights have helped create.
There is no precedent for shifting copyright enforcement toward the end-users of works. For nearly 200 years, copyright law has been nearly invisible to the millions who used and enjoyed creative works. Copyright law was invisible to consumers because the law gave creators and distributors mutual incentives to negotiate the agreements that ensured that works reached consumers in forms that were safe to use in foreseeable ways. Now, those incentives are collapsing. As a result, artists must now waive their rights or sue consumers – their fans.
Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. That is unfair: When inducement is the disease, infringement can be seen as just a symptom. Yet artists must ignore inducers who profit by chanting, “Hey, kids, infringement is cool, and we will help you get away with it.” Instead, artists can only sue kids who succumb to this temptation. They must leave Fagin to his work – and sue Oliver Twist....
Today, artists are suing high-volume filesharers who cannot be identified until late in the process. One filesharer sued for violating federal law over 800 times turned out to be a 12-year-old female honor student. This otherwise law-abiding young girl and her family then faced ruin by the girl’s favorite artists. The public knew that something was wrong, and it was outraged. So the people who gave that girl an easily misused toy – and profited from her misuse of it – exploited public outrage with crocodile tears about the tactics of “Big Music.” And then, I imagine, they laughed all the way to the bank. With regard to this study, Hatch will be laughing all the way to a vote on the Senate floor.
via Tech Law Advisor
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+ TrackBacks (0) | Category: INDUCE Act
Posted by Ernest Miller
Continuing my series on how various aspects of the copyright law may interact with the INDUCE Act (née IICA), today let us discuss the anti-circumvention provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 1201. For those of you who have been travelling with the Mars Rover for the past few years, the relevant portions of the DMCA make it illegal to distribute devices that circumvent access controls and copy controls, basically, DRM cracks. The DMCA is a bad law, but I'm not going to go into details here.
Now the thing with many anti-circumvention devices is that they are "capable of substantial noninfringing uses" and thus avoid secondary copyright liability under the Sony (Betamax) doctrine. Backups, fair use, playback on alternative devices; all are common examples of noninfringing uses that circumvention devices enable. DMCA plaintiffs could fight this in court, but it would be tough and probably not worth it. So, while a company may get busted for violating § 1201, which is bad enough, they will generally have a pretty good defense against claims of secondary copyright liability.
But how hard would it be to prove secondary liability under the INDUCE Act? Once you've shown that a company has violated the DMCA, it isn't much farther to push a jury to find that they "induced" copyright infringement as well, thus bringing all the secondary liability down like a ton of bricks without all the hassle associated with proving contributory or vicarious liability. Indeed, merely advertising a circumvention device or providing instructions on how to use it will probably be enough to trigger inducement liability.
Now, think about how the DMCA has been abused to do things like control markets in ink cartridges. Now, imagine that plaintiffs get to slap a secondary copyright liability suit on top of that. Bonus!
The INDUCE Act will make the unbalanced anti-circumvention provisions of the DMCA even more unbalanced.
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+ TrackBacks (0) | Category: Digital Millennium Copyright Act | INDUCE Act
June 29, 2004
Posted by Ernest Miller
Today, the Supreme Court, with a 5-4 decision, upheld a preliminary injunction preventing enforcement of the Child Online Protection Act ("COPA"), codified at 47 USC 231. Basically the law requires websites that sell material that is "harmful to minors" to implement some sort of age verification, like a credit card check on pain of criminal and civil penalties. The history of the case is slightly convoluted with two apellate decisions and this second visit to the Supreme Court. Suffice to say that, simply, the case will now return to the district court to be decided on the merits. My First Amendment guru, Yale Professor Jack Balkin has a very nice short summary (COPA sent back for retrial). Or, you can read the 41-page decision for yourself, here: Ashcroft v. ACLU [PDF].
This is the third time that an internet censorship case has come before the Supreme Court (not counting the library filtering case) and there are still a number of very interesting aspects to be dealt with. SCOTUSBlog looks at one issue with a posting under the prurient title: Sex, the Internet and congressional frustration. The frustration of Congress, and of Breyer's dissent, is that Congress wrote COPA specifically in response to the Court's decision in the first internet censorship case, and the Court is saying it still isn't good enough Reno. SCOTUSBlog believes that the majority's decision is a "broad hint ... that the lawmakers may be doomed to frustration if they try again."
UCLA Law Professor Eugene Volokh considers one particular aspect of Breyer's views (in the dissent) on the definition of obscenity ("Prurient interest"). Volokh notes that Breyer's definition of "prurient interest" is much broader than previous definitions, "it simply seeks a sexual response."
See Professor Larry Solum for a good roundup of media and commentary (Legal Theory Blog: Ashcroft v. ACLU).
More on Breyer's understanding of obscenity below, including why Breyer makes the case for a novel "least restrictive means." Read on ...
...continue reading.
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+ TrackBacks (0) | Category: Freedom of Expression
Posted by Ernest Miller
The INDUCE Act makes it a crime to induce copyright infringement in very broad terms. Most of the commentary on the Act and what technologies, creativity and innovation it threatens have focused on two types of infringement, those of the right of reproduction (the right to make copies) and the right of public distribution. We should remember, however, that there are other exclusive rights that can be infringed. The intersection of the INDUCE Act with these other exclusive rights will create an even broader swath of technology and acts that Hollywood will have an effective veto over. Let's consider one of these other rights and the technologies that might be affected.
According to 17 USC 106, the second exclusive right is the right "to prepare derivative works based upon the copyrighted work."
Hmmm, I would imagine that it will be much easier for Hollywood to go after websites that promote fan fiction. Computer game companies that do not like modding can go after websites that teach people how to mod computer games. Websites that encourage or promote Machinima are in deep trouble. Things like remix "construction sets" would probably also be under legal threat, even if they didn't contain any unauthorized material. Certain editing technologies like the ClearPlay DVD player, which allows parents to skip offensive portions of a DVD, would certainly be more threatened than they are now. See, Liberals, Conservatives Favor Different Kinds of Censorship. Third-party annotations? Well, those are right out. Heck, it might be that a parody would be illegal because it encourages the creation of derivative satires. Anything that encourages you to change, edit, or manipulate copyrighted content would likely be forced to incorporate DRM else the technology provider be sued.
Just imagine if SCO, the company that wants to stop open source, had INDUCE in its arsenal. Linux, which never had much of a process (until recently) to ensure that submitted code was clean of adverse copyrights, would be toast. And how long before SourceForge and O'Reilly get C&D letters?
Now Hollywood might not win all these potential lawsuits, assuming the defense can afford to go all the way through trial and risk having a jury look askance at what they're doing, but how heavy will the threat of litigation weigh on those who encourage creation?
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+ TrackBacks (0) | Category: Copyright | Culture | INDUCE Act | Machinima
Posted by Ernest Miller
Not too long ago, I explained why I believed Microsoft was a supporter of DRM (Metaphors Gone Wild: On Pies, Ships, Regressive Taxes, DRM and Microsoft). Basically, my argument was that DRM acted as a barrier to entry and slowed innovation so that Microsoft could remain at the top of the mountain. Today, Ed Felten makes a similar argument with regard to the INDUCE Act and why tech companies can't seem to get their act together with regard to combatting Hollywood's lobbyists ("Tech" Lobbyists Slow to Respond to Dangerous Bills). Says Felten: Giving the entertainment industry a veto over new technologies would have two main effects: it would slow the pace of technical innovation, and it would create barriers to entry in the tech markets. Incumbent companies may be perfectly happy to see slower innovation and higher barriers to entry, especially if the entertainment-industry veto contained some kind of grandfather clause, either implicit or explicit, that allowed incumbent products to stay in the market -- as seems likely should such a veto be imposed.
Just to be clear, an entertainment-industry veto would surely hurt the tech incumbents. It's just that it would hurt their upstart competitors more. So it's not entirely surprising that the incumbents would have some mixed feelings about veto proposals, though it is disappointing that the incumbents aren't standing up for the industry as a whole. Absolutely, and Felten's argument is yet another facet of the technology industries that the Boston Globe's Hiawatha Bray doesn't get ( For geeks, it's a big misunderstanding).
The question is, how do we convince the incumbent industries to defend the industry as a whole? With regard to Microsoft, I'm not sure that we can. I don't think it is anymore possible to convince Microsoft to support open innovation and markets than it would have been to convince AT&T to open up the telephone markets to competition in the late '70s.
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+ TrackBacks (0) | Category: INDUCE Act
June 28, 2004
Posted by Ernest Miller
Dr. Karl-Friedrich Lenz, a professor at Aoyama Gakuin University in Japan, has a different perspective on the INDUCE Act (A Balanced View of the INSANE Act Proposal). Of course, there must be something wrong with the translation, Dr. Lenz has the Act as named, "Intentionally Stopping Advances of the Nation's Economy," or INSANE Act. Anyway, he is not nearly as opposed to it as many commentators here in the US: First of all, while it might be true that this legislation will help to make America a technological backwater, with iPods and the Internet being illegal under this legislation, depending on your perspective, that is actually a good thing. It helps Europe and Japan in the global competition with America to have strange American laws strangling research and development there, so from an international point of view, I can only say "go ahead". Lenz notes that the law could use some improvements, and if they were made, then, "it might be better than the Japanese approach of just arresting creators and sort out later if it was actually illegal what they did."
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+ TrackBacks (0) | Category: INDUCE Act
Posted by Ernest Miller
Prof. Susan Crawford has been breaking and following some monumentally important stories recently. Her latest regards one of my favorite federal agencies, the FCC, and the huge power grab it is considering exercising with regard to the internet. This is no joke, the FCC is considering regulating everything that uses the IP protocol (Nethead/Bellhead -- Noticing DHS). If you think this is just about the big telecoms, you're wrong: "[National Security/Emergency Preparedness] NS/EP considerations provide a compelling rationale for applying a certain amount of regulation to IP-enabled services. The purpose of such regulation would be to ensure the prioritized availability of certain communication services to Federal, state, and local officials and first responders in times of emergency or national crisis." Crawford is quoting from the Department of Homeland Security filing in the IP-related services proceeding ( In the Matter of FCC Review of Regulatory Requirements for IP-Enabled Services: Comments of the Department of Homeland Security [PDF] The fun part of this document is that it won't let you copy/paste).
How much regulation is necessary? "In the event of crisis, NS/EP national leadership must receive end-to-end priority treatment over other users. . . . NS/EP traffic must be identified with its own class of service -- above and beyond "best effort." This, of course, would mean the end of end-to-end as IP providers would have to check packets to see if they were specially marked by the government (which would require all sorts of checks so that we could be sure the packets hadn't been spoofed and what not). Basically, we would have to build into the internet a smart network. Once you've done that, all sorts of other regulations become possible.
As Crawford notes, all of this would be done in the name of national security. You're not against national security, are you?
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+ TrackBacks (0) | Category: Civil Liberties | Internet | Security | Telecomm
Posted by Ernest Miller
...continue reading.
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+ TrackBacks (0) | Category: Telecomm
Posted by Ernest Miller
Some months ago, Teleread asked the Kerry Campaign for some statements on copyright policy (such as whether Kerry supports the Sonny Bono Copyright Term Extension Act and DMCA), but got blown off. A recent post probably explains why (New Hollywood millions for John Kerry: Copyright implications?). The New York Times (reg. req.) reports on a recent Kerry fundraiser in Hollywood (Streisand Sings, Kerry Smiles): In an event that was part Woodstock ("for really, really rich people," Mr. [Billy] Crystal said), part red carpet and part Gridiron dinner, an A-list of Hollywood celebrities shared the stage in the architectural splendor of Disney Hall to raise a show-stopping $5 million for Senator John Kerry and the Democratic National Committee. Sigh...
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+ TrackBacks (0) | Category: News
Posted by Ernest Miller
The WIPO Treaty for the Protection of Broadcasting Organizations would basically give copyright protections (fixation, reproduction, distribution, DMCA) to broadcasters, cablecasters and, if the US gets it way, webcasters (whatever that means). Read more about this dangerous draft treaty here: The Broadcast Flag Treaty - Draft Available.
The WIPO treaty doesn't call for anything like the INDUCE Act, but to implement it, the US would basically have to extend most basic copyright law (and the DMCA) to cover broadcasts. What do you think? Will Congress revisit and change copyright law to apply it to broadcasters, or will Congress basically port over everything in copyright law to the new broadcast rights law? If the US signs the Broadcast Flag treaty, you don't think that broadcasters would get less protection do you?
Yep, yet another reason to make sure the INDUCE Act doesn't pass.
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+ TrackBacks (0) | Category: Broadcast Flag | INDUCE Act
Posted by Ernest Miller
For some reason, some people refuse to understand that no DRM system will do anything more than delay determined attackers (there is no way you can provide cyphertext, algorithm and key and not expect your system to be cracked). Once broken, whatever content the DRM was intended to protect will become available on the filesharing networks. The logic is pretty simple and compelling. Yet, there remain people who insist that DRM still works. I argue that it isn't DRM that works but, rather, the anti-circumvention provisions of the DMCA that are doing the work (Potemkin Village - What Secrets DRM Encryption is Really Hiding).
Still, you have arguments such as those from science-fiction author Jerry Pournelle (DRM: The Issues). His basic argument is that DRM can work "good enough." He analogizes DRM to copyright law. Sure, copyright law won't stop all infringers, but it stops enough that he can make money. Funny that he uses law as an example. Precisely. The technology of DRM isn't what is stopping people, it is the legal impediments to sharing DRM cracks (DMCA) that prevent some people from breaking DRM.
Jupiter Research analyst Michael Gartenberg's argument is a bit more perfunctory (I'd have to disagree with Cory Doctrow's position on DRM): DRM does work and it can be good for business and acceptable to consumers. While most folks might prefer no DRM, that's just not viable in today's world and most consumers will accept DRM solutions. That's not just my assertion, data driven research backs it up. That's a difference between opinion and analysis.[emphasis in original] Well, glad we have that cleared up! Just trust Gartenberg. Again, why does DRM work here? Is it because DRM is a technical marvel defeating all who attempt to break it? No, DRM works only because the law says it does. Why not simply say: The DMCA does work and it can be good for business and acceptable to consumers. While most folks might prefer no DMCA, that's just not viable in today's world and most consumers will accept DMCA solutions because the law gives them no choice. There is a simple way to prove whether DRM works: get rid of the DMCA. If DRM actually worked as a technical matter, there would be no reason for there to be a law making the distribution of circumvention devices illegal, since there would be no circumvention devices.
Oh, wait, it is the companies that sell and use DRM that are the biggest supporters of the DMCA. What does that tell you about the technical effectiveness of DRM?
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+ TrackBacks (0) | Category: Digital Rights Management
June 27, 2004
Posted by Ernest Miller
The Cleveland Plain Dealer (reg. req.) reports a disturbing story regarding a lawyer who serves as a defense expert in child porn cases (Ex-prosecutor now toppling porn cases). The defense expert, a former prosecutor, has developed a computerized courtroom exhibit that he uses to demonstrate how, with a $650 PhotoShop software program, adults can be digitally morphed into appearing as if they are children, and vice versa. The reason this is relevant is because the Ohio law requires that: a prosecutor must prove that a digital portrait of suspected child pornography is, in fact, a picture of a child. To meet that requirement, the image must be authenticated as a child and not an adult digitally enhanced to look like a child. This is becoming a bigger and bigger issue, as I've noted ( Volokh on the Future of Virtual Pr0n). The leading case on the issue is Ashcroft v. Free Speech Coalition, which threw out a Federal law that criminalized pornography that only looks like child porn, but was made with adults or virtual actors.
What's upsetting about this story is that Federal and state prosecutors are threatening this defense expert: "People from the prosecutor's office have called to warn me: 'Dean, watch your back. They don't like what you're doing with digital imaging,' " Boland said. "I'm telling the truth and they don't like it. They want me to shut up. I've been in hypersensitive siege mode ever since I got threatened with arrest in Oklahoma." Threatened with arrest?!? Indeed, A judge is expected to rule on Tuesday in Oklahoma, where federal prosecutors considered arresting Boland in April after an explicit courtroom demonstration. Some of the images involved what appeared to be children engaged in sexual acts, which angered prosecutors. Well, that's the freakin' point isn't it? That is, people can make images that appear to be children engaged in sexual acts, but aren't children. How can you conclusively demonstrate the point in court without showing some of those images and how they may be made? These threats are, as Lewis Katz, a professor at Case Western Reserve University's School of Law, calls them, a "travesty."
This doesn't mean there has to be a huge child porn loophole and all future prosecutions are futile. There is a lot of actual child porn out there. Among other things, prosecutors ought to be developing a database of authenticated child porn and prosecuting those who possess such authenticated child porn.
via Peter D. Junger's Samsara's Blog
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+ TrackBacks (0) | Category: Freedom of Expression
Posted by Ernest Miller
Prof. Susan Crawford, who was the first to post the text of the INDUCE Act (aka IICA), writes that (Overstatement and IICA): There are reasonable people walking on this earth who will say that the IICA is not a big deal. Rather than jump down their throats, I'm going to suggest that we slow things down, have some hearings, and try to get to the bottom of what's going on. Crawford's arguments are meant to be the reasonable, low-key responses to proponents of the Act. They may be that, but they conclusively show how overbroad the Act is: Let's assume, for the sake of this argument, that both sides have good points. But there is a great deal of fear on the IT sector side, and there's no limiting language in the bill that focuses on "illegal file sharing." Well, that's the problem, isn't it? There is no limiting language. What some say with a sledgehammer, Crawford says with a stiletto.
On the question of whether the INDUCE Act overrules Sony, Crawford notes: Similarly, so the argument goes, the IICA's creation of a new kind of secondary liability, triggered by "acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability," would leave judge-made theories of contributory liability in place -- but no one would ever use them again. Indeed. Although I think people would still use Sony, just because you almost always bring every charge you can.
Crawford's conclusion?: So where are we? We're worried enough to hold a hearing. We don't need to scream or claim that the other side is witless or evil. We just need to think this through. Indeed we don't have to call the other side witless or evil. Even if they were, this is a very politic and reasonable argument to make. More hearings needed. Of course.
Spokespeople need to make these arguments. However, my cynical self believes that the drafters of this law know full well what they were doing. The Business Software Alliance pays good money for their lawyers; they best not be witless. Neither are they evil; they're simply self-interested. In dealing with public policy issues, such as this one, we call this behaviour "rent-seeking." Rent-seeking isn't necessarily evil, but we don't generally like it. I'm going to call "rent-seeking" when I see it.
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+ TrackBacks (0) | Category: INDUCE Act
Posted by Ernest Miller
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+ TrackBacks (0) | Category: INDUCE Act | Oddities
Posted by Ernest Miller
On Friday, C|Net News reported that the Senate had passed the PIRATE Act (S.2237 Status) "overwhelmingly" (Senate OKs antipiracy plan). The Act would permit government to bring civil enforcement lawsuits against willful infringers. As Frank Field said on Furdlog, "So much for all the whistling past the graveyard, claiming that Congress had too much real work (like passing a budget) to mess with the copyright fights" (PIRATE Act Passes Senate). Indeed. Previous coverage here: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry and PIRATE Act - Wiretaps for Civil Copyright Infringement?.
Of course, attention-wise, the PIRATE Act has taken a backseat to the INDUCE Act this past week. The INDUCE Act claims that "Whoever intentionally induces any" copyright infringement "shall be liable as an infringer." How does this interact with the PIRATE Act? Could the government start suing P2P companies and putting them out of business? Possibly. I'd like to say, unlikely, but I'm not sure.
Under the PIRATE Act, for the government to go after someone, they have to meet the requirements of 17 USC 506:
(a) Criminal Infringement. - Any person who infringes a copyright willfully either -
(1) for purposes of commercial advantage or private financial gain, or
(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement. Proving "for purposes of commercial advantage or private financial gain" would definitely be pretty easy in the case of most commercial entities sued under the INDUCE Act. The question is whether being "liable as an infringer" is the same thing as one who "infringes a copyright willfully." Although a plain reading of the statute would seem to indicate it isn't, I believe there are some plausible arguments that it is. If someone who "infringes a copyright" is the same as someone "liable for infringement," then the government would be able to bring civil law enforcement suits under the INDUCE Act. Certainly an agressive DOJ might try to push this issue. And how many juries would fail to convict with the government telling people what rotten dirty inducers the defendants are?
Hmmm...
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+ TrackBacks (0) | Category: INDUCE Act
June 25, 2004
Posted by Ernest Miller
Brilliantly satirizing (is it really satire if its true?) how easily Hollywood (or any copyright holder) could bring a lawsuit under the proposed INDUCE Act, EFF attorneys have drafted a mock lawsuit complaint against Apple (for making the iPod), C|Net (for reviewing the iPod), and Toshiba (for supplying hard drives for iPods).
Read the press release: Will the Inducing Infringement Act Kill the iPod?.
Read the 9-page complaint: Fake Apple Complaint [PDF].
My take on the INDUCE Act here: The Obsessively Annotated Introduction to the INDUCE Act.
The complaint is rock solid and shows how easy it would be for a plaintiff to force an extended court battle:
Because the Induce Act defines "intent" as being "determined by a reasonable person taking into account all relevant facts," it's unlikely that a technology company like Apple would be able to easily dismiss any lawsuit brought against it. It would face the prospect of an expensive trial, with all the attendant legal fees and negative publicity. One such company, SonicBlue, recently fought against a group of copyright holders in court over its ReplayTV and spent close to $1,000,000 per month in legal fees alone. In essence, this means that copyright owners can use the "inducement" theory to inflict an arbitrarily large penalty on any tech company that builds a device they don't like. That's not a pleasant possibility for an innovator to face as he or she tries to launch a new product. Read on...
...continue reading.
Comments (8)
+ TrackBacks (0) | Category: INDUCE Act
June 24, 2004
Posted by Ernest Miller
Yesterday, as C|Net News reported, Senator Orrin Hatch (R-UT) officially introduced the INDUCE Act to the public (Senate bill bans P2P networks). See also, Susan Crawford (INDUCE Act introduced) and Larry Lessig (even I can’t believe this). Read the bill here: Inducing Infringement of Copyrights Act of 2004 [PDF].
In introducing the bill, Hatch provided extensive justifications and arguments on behalf of the bill. Eight pages worth: Before the United States Senate on Introduction of the “Inducing Infringement of Copyrights Act of 2004” S. 2560 [PDF]. Since it looks like this bill will move quickly in Congress, opponents will have to get up to speed quickly. Thankfully, Hatch provided an excellent guide to the talking points proponents will use. Consequently, I've decided to go through Hatch's introduction and extensively annotate it. However, this is just a response piece and many arguments against the bill won't be here. The annotation is long, but I think there are definitely some valuable nuggets of information, such as, towards the end, Hatch makes clear he wants criminal enforcement of the Act.
My comments are in brackets, bold and italics. I've added hyperlinks to Hatch's text as I thought useful. Read on...
UPDATE 23 July 2004
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
...continue reading.
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June 23, 2004
Posted by Ernest Miller
Yesterday, I noted that a new consumer electronics coalition was launching, part of the good news regarding the anti-DMCA bill moving slowly through Congress (Anti-DMCA Personal Technology Freedom Coalition to Launch). Today, The Register publishes a story on two conspicuous absences from the nascent coalition, Microsoft and Apple (Microsoft, Apple snub consumer freedom coalition). Could it be that my analysis of why MSFT and Apple would support DRM and the DMCA is correct? Read and decide for yourself: Metaphors Gone Wild: On Pies, Ships, Regressive Taxes, DRM and Microsoft.
My post on the Personal Technology Freedom Coalition also pointed out that anti-DMCA Congressional leader Rick Boucher (D-VA) sounded pretty optimistic. Well, the leadership of the House Judiciary Committee has struck back (Judiciary Committee Leaders Issue Statement on H.R. 107, the Digital Media Consumers’ Rights Act):
WASHINGTON, D.C. - House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.), Ranking Member John Conyers, Jr. (D-Mich.), and Judiciary Courts, the Internet, and Intellectual Property Subcommittee Chairman Lamar S. Smith (R-Tex.) issued the following statement regarding H.R. 107, the Digital Media Consumers’ Rights Act.
“We strongly oppose the substance of H.R. 107. This legislation would eviscerate a key provision of the Digital Millenium Copyright Act (DMCA), which is successfully protecting copyrighted works and providing consumers access to more digital content than ever before. In fact, a DVD player is now as common a household item as the VCR was 15 years ago precisely because of the DMCA. H.R. 107 would undo a law that is working and destroy the careful balance in copyright law between consumers’ rights and intellectual property rights.
“Furthermore, our strong objections to the substance of H.R. 107 are matched by our objections to what appears to be a bold jurisdictional power grab. The Judiciary Committee has - and has long had - exclusive jurisdiction over copyright law. Rest assured, we will wholeheartedly oppose this move in a bipartisan fashion, as we would expect Energy and Commerce Committee leaders to do if we attempted to write energy legislation.”
This will definitely be an uphill fight.
via Furdlog and beSpecific
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Posted by Ernest Miller
Today, Alan Turing, one of the formative giants of the computer age, a man who saved many lives during WW2 and helped ensure victory for the Allies, would have been 92. That is, if he hadn't been hounded to suicide by government homophobes.
via BoingBoing
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Posted by Ernest Miller
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+ TrackBacks (0) | Category: Copyright
Posted by Ernest Miller
C|Net News reports that the RIAA has filed another 482 direct infringement lawsuits against John Doe filesharers (RIAA takes hundreds more 'John Does' to court).
In response, Joe Gratz does some back of the envelope calculations to determine the monetary value of the risk filesharers bear with regard to the lawsuits (The Cost of RIAA Risk). Joe Gratz concludes that the risk is about fifty-four cents per month. One could quibble with the figure, but without more data it is impossible to know how accurate it is. For example, the RIAA is of necessity targeting uploaders not downloaders. I would imagine that the uploaders are a smaller proportion of the filesharers than the downloaders. The RIAA is also targeting those sharing an unknown but relatively large number of files; they aren't going after someone sharing twelve songs, but probably one hundred or more. So, those actually targeted by the RIAA are probably a relatively small number of the number of filesharers and their risk is consequently greater.
However, let's assume that the value is this low (heck, it might be lower). Does this mean that Gratz's conclusion is correct?:
My point, though, is that the RIAA is just making everybody hate them, needlessly. If people actually ran the numbers, they’d see that while there are many rational reasons not to use P2P networks to infringe copyrights, fear of these RIAA suits shouldn’t be a significant one.
I disagree. If there is to be any voluntary solution to the filesharing issue, then legal enforcement is going to have to be part of that solution. Otherwise, even if the voluntary alternative compensation plan was $5 a month, there would be sufficient incentive to create well-functioning free alternatives and a significant free-rider problem ( Thoughts on the EFF P2P Solution White Paper). I don't know for sure, but I suspect Gratz would support enforcement through lawsuit in such a case. Lawsuits would also be more effective when the number of illicit filesharers substantially decreases as people shift to licit downloading. Read on...
...continue reading.
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Posted by Ernest Miller
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Posted by Ernest Miller
Everyone who is reasonable about the DRM debate agrees that DRM is not going to keep protected content off the filesharing networks forever. All DRM will eventually be broken and, at the very least, the analog hole will for the forseeable future remain an open path for copyright infringement. However, let's assume for the nonce that DRM can significantly delay the spread of protected content onto filesharing networks.
This leads to one of the problems with DRM that I've noted before (Speed Bumps on Your Car). DRM typically outlives its usefulness:
Long after DRM has provided whatever "speed bump" effect it can, consumers are still inhibited from many perfectly legitimate uses of a work. Indeed, many of the costs of DRM are backloaded. DRM likely doesn't create much of an initial issue for many. However, down the line, when people purchase new PCs or devices, DRM is likely to make transfers from old to new devices more difficult or impossible. Looked at from a long term perspective, DRM seems an extremely poor choice if all you're interested in is short term benefit.
I stand by my analysis. But recent DRM debates here and on Copyfight have given me an idea. Read on...
...continue reading.
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Posted by Ernest Miller
I'm not really sure who Brad Hutchings is, but he is a frequent pro-DRM, pro-extensive-copyright commentator on Copyfight. Anyway, in response to my post on Cory Doctorow's Microsoft Research DRM talk, he had a number of comments (Cory on DRM @ Microsoft). Actually, his last comments had portions that I agree with (and, in fact, have said previously). However, I post here to distinguish where he and I disagree. Read on...
...continue reading.
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June 22, 2004
Posted by Ernest Miller
Cory Doctorow is not the first person to say it, nor will he be the last, but he certainly said it well in his popular talk on DRM he gave at Microsoft (Microsoft Research DRM talk):
DRM systems are broken in minutes, sometimes days. Rarely, months. It's not because the people who think them up are stupid. It's not because the people who break them are smart. It's not because there's a flaw in the algorithms. At the end of the day, all DRM systems share a common vulnerability: they provide their attackers with ciphertext, the cipher and the key. At this point, the secret isn't a secret anymore.
However, DRM does hide (sort of) secrets, they just have nothing to do with the plaintext. Read on...
...continue reading.
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Posted by Ernest Miller
Michael Moore, who is ever quick to decry "censorship" targeted at himself, is threatening those who criticize him by putting together a libel and defamation "war room," according to this nice piece in Slate (Libel Suit 9/11).
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Posted by Ernest Miller
Last week, on Copyfight, I noted Some Good News - Support for Anti-DMCA Increasing. Now, C|Net News has a couple of articles expanding on the good news (Tech heavies support challenge to copyright law and The Hill's property rights showdow). The first article reports on a new coalition of PC OEMs, chip manufacturers, and consumer electronics manufacturers, who will coordinate lobbying efforts to rollback the DMCA's anti-circumvention provisions. The group will be known as the Personal Technology Freedom Coalition - a pretty good name, I think. The second article is an interview with an optimistic Rep. Rick Boucher (D-VA), sponsor of the anti-DMCA bill. See also, Slashdot (Boucher's Anti-DMCA Bill Gets High Profile Allies).
This won't be an easy win, but it is significant forward progress.
UPDATE 0935 PT
Freedom to Tinker: Tech Giants Support DMCA Reform
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Posted by Ernest Miller
Constitutional law professor Jack Balkin has been writing a series of posts on the incredibly broad interpretation of the president's constitutional war powers promulgated by the Bush Administration. The latest here: The Election and the Constitution. Any true republican has to be concerned when:
In the past three years, the Bush Administration has reinterpreted the Presidency, and hence the constitutional system of checks and balances, in the image of an all-powerful Commander-in-Chief. In its most extreme form, it produces the logic of the OLC torture memo, which asserts that Congress may not interfere in any way with the President-as-Commander-in-Chief, and that all laws and international obligations that might interfere with his decisions as Commander-in-Chief must be construed not to apply to him.
Read the whole thing, and the rest of Balkin's blog, but this passage struck me as quite illustrative of what is happening:
The Constitution we are likely to inherit from a second Bush Administration will be a bit like the famous New Yorker cartoon of the New Yorker's vision of the World, with the Commander-in-Chief Clause dominating the page in powerful, large letters, and the rest of the Constitutional text shrinking away into tiny, barely readable prose.
Herewith, my un-artistic version of The Constitution According to Bush [PDF].
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Posted by Ernest Miller
First, I just want to be clear when that I'm talking about "DRM" here, I mean DRM backed by force of law, that is, the DMCA's anti-circumvention provisions. It would hardly be important to discuss DRM at all except that the law makes it illegal for companies to provide circumvention devices. All DRM will be cracked, and without law prohibiting the distribution of circumvention devices, there would be hardly any sense in spending money on DRM at all.
Last week, on Copyfight, I wrote up a short piece on Cory Doctorow's rightfully popular piece on DRM (Cory on DRM @ Microsoft). In my piece, I agreed with four of Doctorow's five theses. I disagreed with his ultimate conclusion that DRM is bad business for Microsoft. Fellow copyfighter Wendy Seltzer disagreed with me (DRM Is Bad for Monopolists, Too). Read on for more of my thoughts on the issue...
...continue reading.
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June 21, 2004
Posted by Ernest Miller
Robert Heverly has been blogging up a storm on Displacement of Concepts recently and he has several good posts on Cory Doctorow's recent speech at Microsoft on DRM including, I wish I had said that and Still More on Cory's Talk. In a slightly longer post, Heverly disagrees (Not Wanting to Bully, but Not Having That Choice) with a posting by Microsoft evangelical blogger Robert Scoble defending MS's use of DRM (Cory wants Microsoft to be a bully with the RIAA).
Scoble argues that:
Cory wants us to bully the RIAA and push a format that is easily copyable (for music, at least). He says that's exactly what the VCR industry did (yes, he says, they got sued, and won, and were repaid hansomely in the marketplace). Interesting argument. I don't agree with Cory that that'd be a good thing for Microsoft to do. I want to see us avoid the courtroom if at all possible and avoid situations where we're bullying anyone.
Heverly responds:
But Scoble's take is just plain wrong. Microsoft, by including DRM in its technology and not providing the option to operate without it, is bullying consumers. Even in Scoble's own framework, it's not really a "bully or not bully" choice; it's a "who to bully" choice. Put (hopefully) a bit more articulately, it's a question of where Microsoft's own interests lie, and it seems in the eyes of most people, that they lie with the consumers (remember, the customer is always right). [italics in original]
However, I'm not sure that Microsoft is the one doing the bullying in either case. Why, if the RIAA and MPAA are the ones threatening lawsuits over technology, they aren't the bullies? When Scoble is saying that Microsoft should avoid the courtroom in such a case, he is merely saying that Microsoft should accede to the bullying. Of course, one would think that if any company could stand up to litigious bullies, it would be Microsoft. Thus, the real reason must be that Microsoft sees supporting DRM as in its interest. So, I guess Heverly is right after all, Microsoft is on the side of the RIAA and MPAA in bullying consumers.
For more of my thoughts on Cory's speech, see:
my comments here: DRM Is Bad for Monopolists, Too
Cory on DRM @ Microsoft
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Posted by Ernest Miller
WIRED is carrying an AP wirestory on the Democrats' decision to permit bloggers at their upcoming national convention (Blogs Welcome at Dems' Convention). Only a certain number of bloggers will be credentialed and the official selection process sounds like it can hide a fair amount of subjectivity:
More than 50 bloggers met last Tuesday's deadline to apply for the Democratic National Convention credentials, of which an undetermined number will be selected based on originality, readership level and professionalism, said convention spokeswoman Lina Garcia.
But wait, Dave Winer says, this ( This AP article about bloggers):
should disgust anyone who believes in the First Amendment, and by the way, it probably strongly indicates why no news ever comes from either of the major conventions. They only want bloggers who will carry the party's message.
Robert Heverly on Displacement of Concepts claims something similar if only using more temperate language ( Blogs and Politics):
In other words, [Democrat Party officials will] check out the applicants, and pick the ones most likely to be nice to them. Why wouldn't the Republicans do the same?
Well, I suspect that both Heverly and Winer are right; the Democrats are likely to only select bloggers who will, more or less, blog in the party's interests. However, I can't seem to muster any surprise or interest in this story, which I wouldn't even care about except for Heverly and Winer's comments on it. Read on...
...continue reading.
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+ TrackBacks (0) | Category: Blogging and Journalism
Posted by Ernest Miller
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June 19, 2004
Posted by Ernest Miller
UCLA law professor Eugene Volokh poses an interesting hypothetical this afternoon regarding the future of pornography (Guess who'll be in porn movies in a decade or two?):
Within about ten years, there will probably be software that can merge people's photographs and voices with movies that depict someone else. ... But, practically, the most common use of this would probably be for pornography. Consumers would buy the program; get ordinary, nonpornographic photographs of celebrities or of acquaintances; merge the photograph with a pornographic movie; and then be able to watch pornography that "stars" whomever it is they lust after. ... if I were the sort of person whom either acquaintances or strangers would like to merge into a porn movie -- even one they'd only watch by themselves -- I wouldn't be at all pleased by this technology. Even if they watch the movie in the privacy of their own homes, there'd still be something mighty icky about them watching pictures that show me having sex.
I've actually written something along the same lines back in 2002 on LawMeme (The Future of Virtual Kiddie Pr0n and Other Notes on Ashcroft v. Free Speech). I think my example of virtual child pornography is even more disturbing and icky than celebrity porn.
However, I have to disagree with Prof. Volokh. As someone who is (peripherally) involved in the Machinima community, I believe that although pornography will be quite prevalent so will many other legitimate uses. The tools available to the pornographer will be the tools available to the budding film student. I think we are going to see many more non-pornographic uses than not. Yes, people will make pornography, but they will also download comedic scripts and the images of their favorite comedians.
Heck, it may become a significant art form with those who make the script suggesting several actors (or synthespians) for a particular role, but leaving the final "casting" decisions up to the consumer. Why pay for actors if you can direct the script and have the consumers add in the actors that they want later?
In any case, there better be significant legitimate uses, otherwise you are going to have a lot of explaining to do when your spouse/significant other stumbles across the program on your converged media center.
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+ TrackBacks (0) | Category: Freedom of Expression | Machinima
June 18, 2004
Posted by Ernest Miller
According to Ubercyberlawprof Larry Lessig, Microsoft is threatening Sergio Amadeu, President of the National Institute of Information Technology (ITI) of Brazil, with a defamation lawsuit for comments he has made about Microsoft's business practices (the local ordinance we call the first amendment). According to a translation of the complaint (Microsoft Complaint [PDF]) Amadeu is apparently guilty of:
With purposes still to be clarified, the Defendant, at the condition of President of ITI, gave an intervitew to the magazine Carta Capital, in which he makes reference and imputations of offensive nature to the Plaintiff, using phrases and expressions from which defamation is inferred, under the terms of the article 21 of Statute 5.250/67, as follows:
In defending free software, Mr. Amadeu does not abstain from criticizing Microsoft, accusing the company of a "drug-dealer practice" for offering the operational system Windows to some governments and city administration for digital inclusion programs. "This is a trojan horse, a form of securing critical mass to continue constraining the country".
To Amadeu, this will be a decisive year to win the "strategy of fear, uncertainty and doubt", as he classifies the business model of Microsoft."
Apparently, in Brazil:
The offensive expressions launched by the Defendant at the interview violate the rule of Article 12 of the Press Law, which leads to the application of the aforementioned especial statute whenever there is an excess in freedom of speech and freedom of thought, by means of the dissemination of information.
Read the offending article here: The Penguin Advances [PDF].
As Lessig notes, perhaps this is defamation in Brazil, but this would not be considered defamation in the United States, thanks to First Amendment jurisprudence. I guess Microsoft only believes in the First Amendment when it has to.
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Posted by Ernest Miller
...continue reading.
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June 15, 2004
Posted by Ernest Miller
Yesterday, the Supreme Court dodged a political bullet by refusing to rule on whether the phrase "under God" should remain in the Pledge of Allegiance as led and recited by public school teachers and instead declared that the challenger had no standing (Thank God It's Standing). Today, a Washington Post (reg. req.) editorial declares, Never Mind the Pledge.
But should we ignore the Pledge?
I think not. Though many see the pledge as an expression of patriotism (not to mention a national religiosity), I believe it instills a very poor idea of what this nation is all about in schoolchildren. Not only is the phrase "under God" either meaningless "ceremonial deism" or an affront to our freedom from the establishment of religion, but the whole pledge celebrates values anathema to a democratic people. It seems clear to me that the best solution, the solution true patriots ought to support, is that children recite the Preamble to the Constitution of the United States of America.
Let us compare the two texts:
...continue reading.
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June 11, 2004
Posted by Ernest Miller
You want to start reading HERE.
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+ TrackBacks (0) | Category: News
Posted by Ernest Miller
One of the most interesting aspects of the gaming world for me is the LAN party. Sure, online play is great, but the social atmosphere of playing a networked game in physical proximity to the other players on a LAN is fantastic. LAN play and online play hardly compare.
Just a couple of examples: there are few lamers and griefers at a LAN party thanks to the social norms resulting from physical proximity; and, sure, you can use headsets to talk during online play, but it is nothing compared to the before/during/after social interaction of LAN play.
Anyone interested in seeing gaming thrive even more should be supporting and encouraging LAN play.
However, setting up such LANs can be burdensome: hauling around and setting up network gear, PCs or Xboxes, and enough displays is not easy, nor is ensuring all software is patched and up-to-date.
Of course, there are commercial establishments called cybercafés or LAN centers where you can join a group of friends in LAN play without the hassle, for a fee. Many also sponsor regular league play and tournaments. However, the cybercafé industry is new, small and fragmented. Most are barely profitable. Though I like to think of them as the new bowling alleys, they haven't really caught on. [Disclosure: I run a small company on the side, GameJockeys, that will set up a private LAN party for corporate events, parties, etc.]
Game licensing is a serious concern for cybercafés; they realize they need it to operate legally, but it has been hard to come by. Most software companies don't understand their needs and have difficulty negotitating such small licenses with individual members of a fragmented business community. This is changing, however, with companies such as Microsoft offering licenses through cybercafé organizations like iGames such that as long as each copy of a title is legitimately purchased, cybercafés may use them. This licensing arrangement benefits the struggling cybercafé industry and the game industry as a whole by promoting social LAN gaming. [disclosure: GameJockeys is a member of iGames]
On the other hand Valve, a company that has thrived in significant part because of LAN play, is taking a different tack. They are requiring cybercafés to use some seriously problematic software to run the games (Steam) as well as charging what is, for cybercafés, a significant amount of money to have any Valve game available. Fair enough. If that is how Valve wants to license its games, that is their choice. If LAN center customers want to know why Valve games aren't available, that can readily be explained to them.
Of course, these requirements are relatively new. Prior to these licensing requirements, some cybercafés operated in a bit of a grey zone, making the games available in their centers as the licensing issues were worked out. I'm not sure why BattleGround PC Gaming was making Counter-Strike - the five-year old game which is freely downloadble as a Half-Life Mod - available in their center without a proper license, but they did.
Well, Valve Software has sent BattleGround PC Gaming a cease and desist letter. Normally, such a letter would offer three options: a) cease using the software; b) license the software; or, c) get sued. In a bullying fashion, Valve has dropped option a). Rather than simply allow BattleGround PC Gaming to stop using the software, Valve is demanding that BattleGround pay up front for a one-year license or get sued.
What Valve is doing is legally permissible. That doesn't make it right. Perhaps fans of LAN gaming and the professional gaming leagues ought to consider whether Valve's aggressive, overbearing stance is helpful to the gaming community or not. Next time you're considering playing a game of Counter-Strike, why not consider Halo or Battlefield instead?
The text of the License or Be Sued letter is below:
...continue reading.
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June 10, 2004
Posted by Ernest Miller
As I noted earlier today, there is an odd absence in the compliance plan the FCC agreed to with Clear Channel (Where's the Profanity?). Strangely, while the compliance plan requires Clear Channel to do many things in the event they broadcast obscene or indecent language, there is no corresponding requirements for action in the event Clear Channel broadcasts profane language, which is one of the categories of language the FCC regulates.
I found this odd, so I called the FCC to ask why the apparent oversight. The response I got was thus:
If issues were to arise about the consent decree then the FCC would review them at that time.
Not a "no comment" but it didn't really answer my question as to why the term "profane" was not included in the first place. Nor does the statement really mean anything. Of course if issues arise you should review them. But review doesn't necessarily lead to action. I can review things all day long and not accomplish a thing, except for the "reviewing."
Even if the review determines that the FCC should have insisted that Clear Channel include "profane" language as triggering disciplinary action on Clear Channel's part, there is nothing the FCC can do about it now. The reason is that such a modification would most likely be seen as modifying the agreement to Clear Channel's prejudice, which would mean the admission of Clear Channel's guilt goes away.
Of course, Clear Channel is free to modify its compliance plan, presumably at will, as long as the FCC is notified 30 days in advance. There is no requirement for public notice either:
Clear Channel reserves the right to revise the plan from time to time, provided that the Commission shall be given not less than thirty (30) days advance written notice of any revisions to the plan.
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Posted by Ernest Miller
...continue reading.
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Posted by Ernest Miller
The FCC just entered a major consent decree with Clear Channel resolving (by terminating) all existing and ongoing investigations into whether Clear Channel broadcast obscene, profane or indecent language. Basically, Clear Channel now has a clean slate for anything that happened before today. In return, Clear Channel is paying a $1.75 Million fine, admitting to broadcasting indecent (but not profane) language, and implementing a compliance plan. Interestingly, however, the compliance plan doesn't mention anything about profane language, although Clear Channel has been absolved of violating restrictions on broadcasting profane language. Why doesn't the compliance plan include anything about profane language? I believe the FCC has some pretty devious reasons.
UPDATE 0910 PT
I called the FCC to ask about this issue and got their answer.
Read about it here: FCC "Responds" on Lack of Profanity in Clear Channel Consent Decree.
Background
On March 18, 2004, the FCC went out of its regulatory way to declare that broadcasting the use of the word "fucking" as an adjective, as in "fucking brilliant," was not only indecent but also profane - a designation unused for many decades (FCC Revives Notion of the Profane). The definition of profane speech provided by the FCC is not terribly clear (Enforcement Bureau - Obscene, Profane & Indecent Broadcasts):
The FCC has defined profanity as “including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” See Complaints Against Various Broadcast Licensees Regarding Their Airing of the Golden Globe Awards Program, FCC 04-43 (released: March 18 2004) (“ Golden Globe Awards”). In announcing this definition, the FCC ruled that the single use of the “F-word” in the context of a live awards program was profane. The FCC further stated that it, “depending on the context, will also consider under the definition of profanity the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. to 10 p.m. We will analyze other potentially profane words or phrases on a case-by-case basis.”[link and emphasis in original]
But what does this brand spanking new doctrine of profane speech mean, exactly? My first post speculated a bit, and I followed up with some other posts exploring the concept of the "profane" (Howard Stern Should Ask FCC: What is Profane? and Violence is the New Profanity?). Profane speech could possibly incorporate things like blasphemy, hate speech and violence, I believe.
After announcing this new profane speech doctrine, the FCC has had a single opportunity to clarify this doctrine when it issued a massive NAL against a Howard Stern broadcast, but no analysis of profane speech was part of the decision (Howard Stern: Indecent But Not Profane). This is exceedingly strange as the definition of profane speech overlaps a great deal, if not entirely, with the definition of indecent speech. Certainly anything that is indecent is also plausibly profane and one would expect the FCC to make the distinction, being that they were so proud of reviving the doctrine of profane speech just a short, few months ago. Read on...
...continue reading.
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June 09, 2004
Posted by Ernest Miller
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+ TrackBacks (0) | Category: Telecomm
Posted by Ernest Miller
Prof. Michael Froomkin had a neat little post last week about the use of highly-partisan movies to skirt campaign finance laws (Movies as a Campaign Finance Law End-Run). The basic idea is to make a partisan movie, such as Michael Moore's virulently anti-Bush film Farenheit 9/11, and then advertise the heck out of it prior to an election. The 30-sec trailers for the movie could be as effective as campaign commercials as anything the candidates and the campaigns "officially" run. As Froomkin notes, this will be a "loophole it will be next to impossible to close."
It is funny, you know. The advent of campaign finance laws have tracked closely with the advent of traditional broadcast mass media. The money is raised for massive television ad buys, not print ad buys or billboards or a whole bunch of other things. I don't think the Democrats lose sleep over the fact that the Republicans can out spend them with regard to Washington Times page buys. But what is the common solution to the television ad problem? All sorts of arcane, loophole-ridden, cynicism-increasing, lack of respect for law fomenting, First Amendment-threatening regulation of how money is to be raised and spent (basically for television advertisements).
I look at this and I'm baffled. If the problem is the need to raise lots of money to run an expensive television-ad based election campaign, maybe the problem isn't campaign finance but the durn fool way we've regulated our broadcast medium. Rather than see the problem as one of campaign finance, why don't we see the problem as one of television regulation? If the major networks weren't bottlenecks and gatekeepers for the most popular medium of all, I don't think we'd have 1/10 the problem with campaign ad buys (and the money raised) that we have now. Read on...
...continue reading.
Comments (0)
+ TrackBacks (0) | Category: Broadcatching/Podcasting | Freedom of Expression | Telecomm
Posted by Ernest Miller
Lucas Gonze has a post I completely agree with regarding the origins of the term "broadcatching" (Where did the term broadcatching come from?). See also, Marc's Voice (Broadcatching).
More importantly, Gonze breaks down the difference between "RSS" and "syndication" (RSS and weblogs tag team mano a mano vs. syndication and broadcatching). I've played fast and loose with using RSS for broadcatching, letting the herd spread a bit much. Gonze flanks the cattle back into line:
The reason for the awkwardness is that RSS is about content from the creator of the RSS feed, while playlists are about deep linking to resources not owned by the linker.
Absolutely. Gonze also identifies some subtle differences between reading RSS feeds and using television. As TiVo has proved, useability is absolutely critical. Gonze also points out that some of the tools being used to make RSS more efficient ( Technorati, Google, Feedster) will have to be seriously retooled to be effective for broadcatching.
Diablog connects broadcatching with the spread of broadband in Europe (Broadcatching, the future of “broadband television”). The two early posts link to articles that demonstrate that traditional broadcasters still don't get it. For example, Strategy Analytics gives bogus advice to broadcasters (Broadcasters Beware: Broadband Is Stealing Your Viewers):
TV programmers and service providers can deal with this trend by continuing to emphasise iTV services and products like Digital Video Recorders (DVRs), which can offer viewers the same kind of interactivity and personalisation associated with the Internet.
The problem with this vision is that it doesn't forsee programmers and service providers providing the tools to let the public provide the personalization. iTV has always meant, "why don't you buy this?" It should mean letting consumers help to organize and even provide the content. Read on...
...continue reading.
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June 08, 2004
Posted by Ernest Miller
Last week, I wrote about John Kerry's position on cable indecency (Opponents of Cable Indecency Regulation). I thought his position was a less than ringing endorsement of free speech for cable, merely noting a distinction (however, minor) between broadcast and cable and not definitively opposing censorship of cable.
Well, others might have gotten a bit confused and thought Kerry was actually opposed to regulating cable indecency, so his campaign has issued a clarification as reported by Broadcasting & Cable (Kerry 'Clarifies' Indecency Position):
[Kerry spokesperson] Davis suggested that Kerry was not seeking either a crackdown or a free pass for cable and satellite, but a middle ground.
Well, glad we got that clarified. Although, one wonders how that "middle ground" squares with Kerry's claim that "there are some standards and pretty generally people should know what they are." Perhaps, Kerry could tell us what his standards are and how they differ for various varieties of broadcast technologies. Yeah, like that would happen.
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Posted by Ernest Miller
C|Net News runs yet another hyper-libertarian/quasi-anarchist rant from Declan McCullagh, this time about getting rid of the FCC (Why the FCC should die). Don't get me wrong, few people despise the FCC's current incarnation more than me. Even fewer government agencies suffer as much cognitive dissonance as the FCC; worshipping free markets where there is market failure and embracing censorious paternalism where people can make their own choices. However, McCullagh is also suffering a serious bout of cognitive dissonance when it comes to his solution.
For example, the article complains about the FCC enforcing the broadcast flag. Would private spectrum be any different? After all, software is mostly free of government regulation, but every major media software option provided incorporates DRM that is frequently worse than the broadcast flag. The FCC isn't requiring (yet) WMA and iTunes to incorporate DRM, but they do anyway. Private ownership doesn't protect against market structure created by other aspects of law.
Gee, think about how the DMCA will work with regard to private spectrum. Only authorized devices will be permitted to connect to the network. Hmmm ... sort of sounds like when the FCC banned homeowners from owning their own non-Bell phones, except the decisions this time will be made by a corporatist oligarchy.
Now, in his free market worship, McCullagh thinks that spectrum is more valuable if it is excludable - that is the "owner" can keep others from using the same spectrum. He doesn't even consider the possibility that spectrum could be free to use, as long as everyone obeys certain rules.
The FCC shouldn't be abolished, it should be re-chartered. We'd be better off if the point of the FCC was to attempt to enforce the end-to-end principle and make spectrum as dumb and free as possible.
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Posted by Ernest Miller
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June 04, 2004
Posted by Ernest Miller
Broadcasting & Cable reports that presumptive Democrat presidential candidate John Kerry has come out, sort of, against indecency regulations for cable television (Kerry Opposes Cable Indecency Crackdown):
"I think there is a distinction between public broadcast and the notions we’ve had historically about family time, family hour -- and what you buy privately and personally," Kerry told C-SPAN in an interview to be broadcast Sunday.
"I am not in favor of government interference and censorship and restriction of what an individual privately can decide to do in their home, in their own space, so to speak," he said, but he did seem to be OK with indecency regulation "where you have children involved, where you have a broader crossection of the public, where there is sort of a sense of family time or hour."
Not quite a ringing endorsement of free speech. Yes, he sees a distinction between cable and broadcast, but if there are "children involved, where you have a broader crossection of the public," then regulation would be okay, apparently. Perhaps someone should let him know that it isn't only the rich who have cable today, that some 85% of Americans (a broad crossection of America and many of whom are children) get television via cable. Nor does Kerry believe there has been an overreaction to Nipplegate: "there are some standards and pretty generally people should know what they are." Yeah, it would really be nice to know what the standards are. Kerry also seems to be implying that the crackdown on Howard Stern is justified, that it is not part of an overreaction.
Unsurprisingly, the libertarian CATO Institute's Adam Thierer isn't afraid to come out strongly against cable censorship in the National Review (A PG Tony Soprano). UCLA Law Professor Stephen Bainbridge completely agrees (I Want my Sopranos Uncensored).
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Posted by Ernest Miller
The cover story for this week's Broadcasting & Cable is about the FCC's coming crackdown on violence in broadcast and possibly cable (Congress and FCC Take Aim):
Under orders from leaders of the House Commerce Committee, FCC Chairman Michael Powell by the end of the year will start investigating whether the commission should restrict onscreen violence. Cable can't count on immunity either. Growing ranks of lawmakers say cable must do more to make sure that children aren't exposed to potentially traumatizing content.
It should be noted that these lawmakers are quite bi-partisan, including leading members of both parties. Of course, the FCC has an important role to play as well.
At the FCC, the TV-violence inquiry will focus on whether the government can limit violent programs without violating free-speech rights. If those constitutional issues can be resolved, then the FCC must decide how tough the limits should be.
Unfortunately, there is no clear law in this area. One can plausibly argue that it is as permissible to regulate violent broadcasts to protect children as it is to regulate indecent broadcasts. From an institutional perspective, particularly under the current censorship-happy regime, I can't imagine a report that says, "Nope, we can't regulate violent programming." Heck, I rather expect that the FCC will discover that it already has the power to regulate violent programming under their new definition of what constitutes profane expression ( FCC Revives Notion of the Profane).
It may be that the one of the only major problems with regulating violence is the unclear impact it has on children. Not to worry, though, Sen. Lieberman will fix that:
Because so much of the data is inconclusive and sometimes contradictory, Lieberman calls it a "patchwork" of data. "We can do better than that," he says.
Glad he already knows how the scientific studies will turn out.
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June 03, 2004
Posted by Ernest Miller
...continue reading.
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June 02, 2004
Posted by Ernest Miller
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Posted by Ernest Miller
Brother Dana has a post worthy of much consideration this morning arguing that the anti-spam laws will drive spammers into the arms of organized crime (Spammer In A Can):
Within a year, I predict, the days of the individual spammer will be over. The days of the corporate spammer will be here. And the volumes of hard-to-trace spam that will result will dwarf anything we have seen to date.
This is worrisome not simply because the spam problem will continue but, because once organized crime has taken root, other opportunities for socially detrimental activities will increase. For example, I've often compared those who would game alternative compensations systems to spammers. The problem becomes worse if the spammers are part of organized crime. Of course, that is a single example ... there are many more nasty things that become possible with organized criminals manipulating our network.
For those interested in SPAM laws world wide, be sure to check out LawMeme's comprehensive coverage: LawMeme's Spam Archive.
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June 01, 2004
Posted by Ernest Miller
Tomorrow, the FCC and the Department of Homeland Security will be co-hosting a media forum: Federal Communications Commission and Department of Homeland Security to Host Media Forum Wednesday, June 2 [PDF]. The purpose is to "examine the relationship of media and government in times of emergencies." FCC Chairman Michael Powell had this blurb:
Media and government must be partners in preparing for emergencies. The public needs clear lines of communication of accurate and timely information. Only by working together can we ensure full readiness for when disaster strikes. During this forum we want to explore how this relationship can be strengthened at the local level.
The press release also noted that:
The forum will address means of fostering coordination between local government and media before an emergency occurs, media awareness of service vulnerabilities, and plans for restoration of service to community, including the special needs of disability communities.
Read the final agenda here: Final Agenda Released for FCC and DHS Media Forum [PDF].
Of course, I doubt this forum will have anything innovative to add. The focus is on broadcasters and how best to use their platform. Yes, broadcasters are and remain important, but they aren't the only information distribution game in town anymore. Perhaps the best way to distribute information is to bypass the broadcasters all together, or use a separate channel. You want local? Have emergency RSS fron any entity that thinks it needs one. Let people subscribe to these emergency RSS feeds so that they show up on their television screen no matter what they are watching. I've written more on the concept here: RSSTV Emergency Broadcatching System. Problem with my idea, though, is that it reduces, as opposed to aggrandizes, the power of traditional media. The other problem with the concept is that is a forward-thinking innovative take on the difficulties of distributing emergency information.
Interestingly, given that the FCC desires to regulate as much distribution technology as possible, when I forwarded the concept to the FCC, I received this response:
Thank you for your interest in this issue but the FCC and its rules do not address the technologies that the covered entities might use.
Imagine that, a technology involving broadcast that the FCC has no interest in regulating.
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Posted by Ernest Miller
C|Net News reports the somewhat surprising move by Microsoft to extend support for older versions of their software that are still widely used (Microsoft slows to support customers' pace). Microsoft has been frequently accused of dropping support for older software in order to force users to upgrade to newer software. After all, if Windows 98 works just fine for a business, there is little incentive for them to upgrade to Windows XP or Longhorn. If there is no upgrading, Microsoft doesn't make money.
In this case, extending support is likely a response to the Linux threat. One of Microsoft's main claims against Linux is the claimed lack of support for the open source operating system. Doesn't sell your case if you don't have much in the way of support either.
Related to the support issue is the claim that Microsoft updates its file formats in order to also encourage upgrades of software. If Word 98 doesn't open files from Word XP, eventually I may have to upgrade to Word XP in order to easily read the files others send me. Personally, I wouldn't even have a copy of Word on my hard drive except for my need to read Word documents from others.
Prof. Michael Froomkin reports an exasperating example of such file format upgrade cycle shenanigans by financial software giant Intuit: Annals of Software Obsolescence: Intuit is Evil (Quicken Dept.) and Annals of Software Obsolescence: Intuit is Even More Evil than I Thought.
Apparently, Intuit isn't satisfied with dropping support for older file formats in newer versions of its software, but they are somehow encouraging banks to stop supporting older formats in communicating with their customers. Froomkin was quite happy with Quicken 2000, which allowed him to easily download account information from his bank and reconcile his records. He was not happy with Quicken 2003, which locked up his display. So, he switched back to Q2000. Now, however, his bank has upgraded their system and he is unable to automatically download and reconcile his records. He can still do it manually, but that is nearly as inefficient as reading a paper bank statement.
Read Froomkin's posts for the details of this evil example of forced software obsolescence.
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