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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July 31, 2004
Posted by Ernest Miller
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+ TrackBacks (0) | Category: JibJab
Posted by Ernest Miller
Bloomberg News is reporting that JibJab and EFF have actually filed a lawsuit to protect their right to distribute the parody (JibJab defends use of 'This Land'): "This Land" was made for you and me, JibJab Media says in a lawsuit seeking the right to use the Woody Guthrie song This Land Is Your Land in an online parody of President Bush and Sen. John Kerry....JibJab, which is run by brothers Gregg and Evan Spiridellis, says in its suit, filed Thursday in San Francisco federal court, that the video is a parody and doesn't infringe on Ludlow Music's copyrights. There is nothing on EFF's website that I could find and this is the only report of a lawsuit I've seen. I'm trying to confirm this report with EFF.
UPDATE 1150 PT
I've received anonymous confirmation that a lawsuit was filed (JibJab Does File Lawsuit - "This Land" a Fair Use Parody)
UPDATE 2 1350 PT
Seth Finkelstein has the court electronic database information (JibJab vs. Ludlow - Court Info).
Other JibJab News
The Dallas Morning News (annoying reg. req.) (Hits and Misses - July 31, 2004): If this is danger, bring it on
The Richmond Organization is alleging that an online cartoon parodying the presidential race is causing "huge" damage to its copyright of Woody Guthrie's folk classic "This Land Is Your Land." But what it's really doing is adding some much-needed levity to a heated political season. The owners of the copyright are asking www.JibJab.com to stop distributing the cartoon that features John Kerry and George Bush as cartoon characters singing new words to the patriotic ditty. As obvious political satire, it's surely protected free speech. It's irreverent. It's funny. It jabs both sides. The true danger would be a lack of good satire in a presidential election year. [emphasis in original] With regard to JibJab the Blawg Channel points to Stanford's Copyright & Fair Use Center for more information on the issues involved ( Research Site of the Day).
USA Today had an odd column about the JibJab phenomenon. The article doesn't discuss the copyright issues, but is bizarre enough that I thought I'd point it out (This Net was made for you and me and the rest of the world).
I've now added a "JibJab Category" to my lists of categories to make following the story easier.
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+ TrackBacks (0) | Category: Copyright | Culture | JibJab
July 30, 2004
Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.
Today on Hatch's Hit List: The New York Times
Tip o' the hat to Fred von Lohmann
You would think that they would know better, given that they make a lot of money from their own copyrights. Apparently not.
Yesterday, the New York Times published an article in their Circuits section that painted a romantic picture of copyright infringers who violate the public perfomance right for films (Now Playing, a Digital Brigadoon). The article was about "guerilla drive-in" theater, in which copyright pirates go to public spaces (sometimes trespassing) and project films so that anyone can watch them. Rather than condemning the copyright thieves for what they were, the article seemed favorably inclined to what they were doing. It called them "hipsters" and "impresarios" and "movie buffs" when, in fact, they are the enemy of legitimate film.
The article touted the fact that the scoundrels used many devices that should be on Hatch's Hit List, including one that has already been covered: Hatch's Hit List #3 - AM/FM Transmitters. The article is practically a "how-to" for piracy.
A reasonable person would realize that reporting about these events will induce some people to participate or even start their own. Heck, the NY Times even admits it: Even $1,000 [for a digital projector] was too steep for John Young, a technophile in West Chester who became infatuated with guerrilla drive-ins after reading about them in a hobbyist magazine. [emphasis added] It is almost as if the NY Times is bragging about its ability to induce infringement.
Ignorance is certainly not a defense. The New York Times is quite aware that the whole guerilla drive-in movement infringes copyright: Michael Bergman, a Los Angeles-based entertainment lawyer, said the fact that Mr. Modes does not charge admission does not diminish his basic violation of copyright law. "The copyright proprietor for the film has the exclusive right to publicly perform the work," he said in a telephone interview. "Projecting a rented DVD onto the side of a building, where anybody who wants to can come and watch it, is certainly a violation of the copyright act." If the INDUCE Act passes, perhaps Mr. Bergman might have added that publishing an article about the subject might also be a violation of copyright law.
The article also points out that there isn't a lot of enforcement of this violation of copyright law. A reasonable person could easily see how that would induce people to violate copyright. So for now, Mr. Modes and his friends seem safe. Even the police do not really care; the Santa Cruz deputy police chief, Patty Sapone, said her officers had shut down the previous movie because Mr. Modes was using public property; as far as trespassing at the new site, it is not a matter for the police unless the property owner complains. Finally, the article has the temerity to offer testimonials on behalf of this blatant copyright infringement: "They show some awesome movies," Ms. Anderson said. "You don't often see a drive-in with 'Waking Life.' Or 'Dr. Strangelove.' " The NY Times is lucky that the INDUCE Act has yet to pass.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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+ TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act
Posted by Ernest Miller
Drudge is reporting that DNC Convention Director Don Mischer used what the FCC calls "indecent and profane" language and his unfortunate words were (inadvertantly?) broadcast by CNN ('What the F**k Are You Guys Doing Up There?'): 'We need all of them coming down. Go balloons- balloons? What's happening balloons? There's not enough coming down! All balloons, what the hell! There's nothing falling! What the fuck are you guys doing up there? We want more balloons coming down, more balloons. More balloons. More balloons'... Luckily, CNN is a cable news network and not subject to the FCC's indecency regulations (yet). However, if the language had accidentally been broadcast over the air, wouldn't the FCC have to fine the stations unfortunate enough to have broadcast the profanity? After all, they could have taped delayed the political convention. They should have realized, given numerous precedents, that politicians and associated types are prone to using profane language, just as rock stars are. If you can get into trouble because Bono spontaneously says "fucking brilliant" on an awards show, why is this different? It is more or less an awards show anyway, right? That is what they hire Don Mischer for, isn't it?
Listen to the audio clip: DNC Convention Profanity [MP3].
via Lost Remote
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Posted by Ernest Miller
Jeevan Jaisingh is an assistant professors in the Dept. of Information and Systems Management at HKUST Business School in Hong Kong. He has recently published a very interesting paper on SSRN. Link to the 24-page paper here: Piracy on File Sharing Networks: Strategies for Recording Companies.
Here's the abstract: In this paper we study the impact of selling music as downloads, on piracy, and the strategies recording companies should adopt to increase profits. We find that total music sales and profit of firm is higher, and total piracy (demand on file sharing network) is lower, when the firm sells a downloadable version. We look at the firm's optimal choice of Digital Rights Management (DRM) protection, and find that revenue decreases with increased protection, and so it is optimal for the firm not to employ any DRM, in the absence of network effects. Listening to music or watching video protected by DRM is cumbersome to users. They have to download license files, there are restrictions on the number of times the file can be copied, and restrictions on the type of devices that can play the file. As a result there is a disutility to the legal consumer, because of which the firm charges lower prices. Loss in revenue due to decreased prices cannot be compensated by the increase in demand, and hence revenue decreases with higher protection. When network effects (NE) is high, and a nominal search cost is above a certain threshold, then non-zero protection becomes optimal. This result is exactly the opposite of what was found in previous research (Conner and Rumelt 1991), where protection was found to be optimal in the absence of NE, and zero protection was optimal if NE is high enough. Having read the paper, there are a number of questions I have about some of the assumptions and models, but overall it is a very engrossing paper.
There are also some interesting asides as well. For example, The German media conglomerate Bertelsmann has announced recently that it is to begin offering “nofrills” and luxury versions of CDs in a bid to combat piracy. Bertelsmann will offer three versions of its CDs, a €=9.99 version, with only the title printed on the disc and nothing else; a €=12.99 version, which will look like a regular CD, with a cover and liner notes; and a deluxe version costing €=17.99, which will include video clips and other additional material (Philips 2004). This provides anecdotal evidence which supports our result that versioning is an appropriate strategy to fight piracy. The versioning we considered was providing a no-frills version through downloads, while the strategy Bertelsmann is adopting is providing a "no-frills" version of the CD, however the intuition for both is the same. Bertelsmann’s record label, BMG, hopes that the move will boost sales by up to 25 per cent (Philips 2004). Definitely a paper I'd like to see some responses and extensions to. A highly recommended copyfighter read.
via Legal Theory Blog
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+ TrackBacks (0) | Category: Digital Rights Management | File Sharing
Posted by Ernest Miller
 Image via Wikipedia and Lucas Gonze
Commentary On Guthrie Borrowing the Underlying Tune
A number of commentators have noted the importance for fair use analysis of Guthrie having apparently borrowed the underlying tune for This Land is Your Land from an earlier tune. The earliest mention of this I found was in the comments here (Comments: Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads): On a different tack, the consensus among folkies is that Woody Guthrie himself put his own "This Land" words to an existing tune, "Little Darlin' Pal of Mine". That tune was copyright by A.P. Carter and/or Ralph Peer, both of whom were notorious for recording and copyrighting materials which were already being sung by others. One source cites the melody going back to an older tune, a Baptist Hymn "Oh My Lovin' Brother". The author of the comment is John Dowell who blogs for Macromedia, developers of Flash. See also, Dowell's post on this subject ( JibJab update).
Compare clips of the two songs:
Guthrie's This Land is Your Land [MP3] - Courtesy of the University of Virginia Library's Lift Every Voice exhibit.
Carter's When the World's on Fire [MP3] - Courtesy of EFF.
Martin Schwimmer notes, "So now there are two widely-known clouds on the title that weren't widely-known last week" and asks, "What alternatives were available to the copyright owner?" (All Jib Jab, All The Time). Yep. Ooops.
Doc Bug wonders if strict enforcement of copyright would have kept Guthrie from recording "This Land is Your Land" in the first place (More JibJab, and thinking about deregulation). Answer: Probably. Maybe we need to change the law then, according to Doc Bug: As Lessig points out, we citizens have the right to change the law. Copyright is a government regulation on the marketplace of ideas, one that restricts some speech in the hope that it will encourage others to produce more. We're all fully aware that the Net has radically shifted how the marketplace of ideas now works and will continue to work in the future. Isn't it about time we reexamined whether this government regulation still makes sense?
Other, brief commentary on this issue:
Reason's Hit and Run: This Song Was Their Song
Eugene Volokh: This Song Is Whose Song?
General Commentary on the Controversy
Martin Schwimmer has more comments on having noted the parody of Guthrie in JibJab's version (Copyright: Blawg Channel Gets The Joke): Now, before you dismiss the fact that I saw the parody clearly merely because I practice copyright and trademark law and do this stuff all day, please note that as early as eighth grade, Mrs. Jacobson, our English teacher, lauded my ability to spot metaphors and the like in the assigned reading (a comparative advantage accruing to me by being the only person wonky enough to do the reading).
Be that as it may, as the Nader/Priceless court says, perceiving the parody clearly (or readily) is not the critical factor - parody can be subtle. Andrew Raff has some very nice analysis about post-hoc rationalization and parody ( Post-hoc Parody).
Free Culture Blog is worried what would happen if the parody isn't a fair use (Some troubling implications about the Jibjab case).
Finally, Technician Online claims that, in regard to the controversy, Guthrie would laugh his guitar off.
Previous Coverage
Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads
EFF Defends JibJab Animation as Parody
JibJabapalooza
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+ TrackBacks (0) | Category: Copyright | Culture | JibJab
July 29, 2004
Posted by Ernest Miller
An interesting commercial speech case was published today. The Pitt News had challenged the constitutionality of a Pennsylvania law that prohibited advertisements for alcoholic beverages in media affilitated with a university, college or "educational institution." The newspaper is an independent student organization, but is affiliated with the Univ. of Pittsburgh. The Third Circuit overturned the statute on First Amendment grounds, after an earlier appellate ruling had denied a preliminary injunction because the paper was unlikely to prevail on the merits. Read the 17-page decision: The Pitt News v. Pappert [PDF].
After determining that free speech was implicated (the earlier appellate decision didn't think denying revenue to newspapers from certain advertisers implicated free speech), the decision to overturn the law was based on two arguments. First, the law violated commercial speech doctrine and, second, it placed too great a financial burden on too small a group of speakers. Under commercial speech doctrine, "the government must demonstrate that the challenged law 'alleviate[s]' the cited harms 'to a material degree.'" The problem with the law, according to the court, is that it only affects a very small number of alcohol advertisements: Section 4-498 applies only to advertising in a very narrow sector of the media (i.e., media associated with educational institutions), and the Commonwealth has not pointed to any evidence that eliminating ads in this narrow sector will do any good. Even if Pitt students do not see alcoholic beverage ads in The Pitt News, they will still be exposed to a torrent of beer ads on television and the radio, and they will still see alcoholic beverage ads in other publications, including the other free weekly Pittsburgh papers that are displayed on campus together with The Pitt News. The suggestion that the elimination of alcoholic beverage ads from The Pitt News and other publications connected with the University will slacken the demand for alcohol by Pitt students is counterintuitive and unsupported by any evidence that the Commonwealth has called to our attention. Additionally, the statute must be "narrowly tailored" to meet the government's ends. Here, the court concluded that the law was both overbroad and under-inclusive. As noted, more than 67% of Pitt students and more than 75% of the total University population is over the legal drinking age, and, in Lorillard, the Supreme Court held that a restriction on tobacco advertising was not narrowly tailored in part because it prevented the communication to adults of truthful information about products that adults could lawfully purchase and use. Not only does Section 4-498 suffer from this same defect, but the Commonwealth can seek to combat underage and abusive drinking by other means that are far more direct and that do not affect the First Amendment. The most direct way to combat underage and abusive drinking by college students is the enforcement of the alcoholic beverage control laws on college campuses. And, thus, the statute fails commercial speech analysis.
The second and independent reason for the law's unconstitutionality is that it was too narrow. Normally, general burdens on speakers are perfectly acceptable. Newspapers have to pay for a business license, just like any other business. However, when media is singled-out for special financial burdens (such as denying them the ability to obtain alcohol advertising revenue), the law may be unconstitutional. The court decided that, because the law basically only applied to university affiliated media, it was too narrow.
via How Appealing
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Posted by Ernest Miller
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+ TrackBacks (0) | Category: Copyright | Culture | JibJab
Posted by Ernest Miller
I've been writing a lot recently about the Real / Apple imbroglio (What Real's Hacking of FairPlay Doesn't Do, Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM?, and Can Real Sue Apple Under the DMCA?). Short story, Real has developed a technology, Harmony, that will convert files encrypted with Real's Helix DRM into files that mimic Apple's FairPlay DRM, but not the reverse. Interesting legal questions are raised.
Today, Apple has issued a press release with a legal threat (Apple Statement): We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod(R), and we are investigating the implications of their actions under the DMCA and other laws. We strongly caution Real and their customers that when we update our iPod software from time to time it is highly likely that Real's Harmony technology will cease to work with current and future iPods. As if being a hacker is a bad thing. What do you call those two guys who built a computer in their garage and started a little computer company named after a fruit?
Derek Slater has a good selection of links and analysis (Apple Threatens Real). CNN has an article that quotes yours truly (Apple: RealNetworks hacked iPod). Slashdot comments (Apple Not Too Harmonious with Real).
Will Apple sue? I think they may, in order to set a precedent and warn Microsoft off. A lawsuit would also create further FUD about Real's ability to survive in this cutthroat market.
It isn't clear what issues will actually come to the legal forefront. If Real's software was a clear violation of the DMCA, Apple would have said so (and Real probably wouldn't have tried this). There are also various state law possibilities, such as unfair competition and whatnot. This will certainly be a case to watch.
UPDATE 1150 PT
Over on engadget, Siva Vaidhyanathan, copyfighter, has a guest editorial on DRM lock-in that starts with coffee machines and ends up with Apple/Real (The Trouble with Tethering). See also, Derek Slater (The Practical Impact of Lock-in). Concludes Vaidhyanathan, If Apple is smart (as it occasionally is, but rarely in this domain) it will welcome Rhapsody users. Tethering may be the hot corporate move of the moment. It may be what all the consultants are pushing (corporate consultants are basically anti-competitive). But it’s ultimately bad business and - when backed up by law - bad public policy.
Real has also issued a countervailing press release: RealNetworks Statement about Harmony Technology and Creating Consumer Choice
Real is delighted by initial consumer and music industry support for Harmony. Compatibility, choice and quality are critically important to consumers and Harmony provides all of these to users of the iPod and over 70 other music devices including those from Creative, Rio, iRiver, and others. RealPlayer Music Store provides the highest sound quality of any download music service. That's why so many consumers have welcomed news of Harmony. Consumers, and not Apple, should be the ones choosing what music goes on their iPod.
Harmony follows in a well established tradition of fully legal, independently developed paths to achieve compatibility. There is ample and clear precedent for this activity, for instance the first IBM compatible PCs from Compaq. Harmony creates a way to lock content from Real's music store in a way that is compatible with the iPod, Windows Media DRM devices, and Helix DRM devices. Harmony technology does not remove or disable any digital rights management system. Apple has suggested that new laws such as the DMCA are relevant to this dispute. In fact, the DMCA is not designed to prevent the creation of new methods of locking content and explicitly allows the creation of interoperable software.
We remain fully committed to Harmony and to giving millions of consumers who own portable music devices, including the Apple iPod, choice and compatibility. UPDATE 2 1205 PT
Ed Felten weighs in (Apple Threatens Real) via Copyfight Okay, so Apple was mighty ticked off that Real had made Apple's product better, without even getting permission or anything. So Apple cried foul. Apple was shocked 'n' saddened that Real was trying to improve Apple's product, like those hacker guys are always doing. So Apple drew a line in the sand, and swore to make its own product worse again.
I don't know about you, but I find this all very confusing. I guess I just don't have a head for business. UPDATE 3 1225 PT
Derek Slater has even more ( Real Responds; Pot Persists In Calling Kettle Black).
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+ TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management
Posted by Ernest Miller
I'm not sure what triggered it, but there is a slew of coverage of the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) today.
Sen. Orrin Hatch's hometown newspaper, the Salt Lake Tribune runs an article that looks at the opposition to the INDUCE Act (Does Hatch have iPod, TiVo, Google and Legos in his sights?). The article even mentions Hatch's Hit List specifically.
The Lawrence Journal-World of Kansas has an interesting and wide-ranging column on modern copyright law (Laws regarding copying music need fine tuning). The article deals with INDUCE, click wrap licenses, the DMCA, and whether memorizing a song from the radio violates copyright. It is a fascinating expression of current copynorms.
The Wayne State South End provides a brief overview of the issues, focusing on the arguments made at the Judiciary hearing (Proposed legislation could make iPods illegal).
Ernie the Attorney totally disses the Save the iPod campaign (The INDUCE Act is not going to threaten my iPod) Having said that [the INDUCE Act is overbroad], I'm also going to say that I'm not a fan of the whole 'chicken little' approach that some opponents of the INDUCE Act are taking. When you try to get people's attention by saying that the INDUCE Act threatens the iPod you just lose credibility. Instinctively, we all know in our gut that Apple's fabulously successful device, which is used by all kinds of celebrities and musicians, is not going to be subjected to restrictions based on the INDUCE Act. Oh, sure, one could argue about the theoretical lawsuit that could be filed to limit use or sale of the iPod, but who is really going to bring that lawsuit? The record companies? After most of them have cut deals to sell music through iTunes Music Store? No, I don't see it.
The reality is that the INDUCE Act, if it is passed, might perhaps threaten some innovation and may even lead to some stupid lawsuits. But it isn't going to threaten the iPod, and people who make that argument are engaging in foolish demagoguery. Which proves that 'foolish demagoguery' isn't the exclusive province of companies that are threatened by new technologies. [italics in original] I warned that this argument would be made ( Are the Opponents of the INDUCE Act (IICA) Claiming that the Sky is Falling?). I do think it is valuable to discuss the theoretical merits of a lawsuit against the iPod, but opponents of the INDUCE Act shouldn't claim that a lawsuit against Apple is likely. However, we should always keep in mind, in regard to proposed legislation, Lyndon B. Johnson's famous aphorism: You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.
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.
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Posted by Ernest Miller
WIRED writes a story on the JibJab controversy, looking fairly closely at the claims for and against fair use (Sue You: This Song Is Our Song). See also, this shorter Newsday article ('This Land' was made for comedy).
For a much more detailed analysis of the legal analysis, however, you can (and should) read the dueling letters between the legal representatives for the This Land is Your Land copyright holders and EFF, which is officially representing JibJab.
Ludlow's 4-page Cease and Desist Letter to JibJab's Lawyer: Re: JibJab Media Unauthorized Use of 'This Land is Your Land' [PDF] Mr. Guthrie's musical composition is an iconic portrait of the beauty of the American landscape and the disenfranchisement of the underclass. As both a populist anthem and an ironic metaphor, "This Land Belongs to You and Me" contrasts a view of the "sparkling sands of her diamond deserts" and the sun shining on "wheat fields waving" with the city's working class in the "shadow of the steeple near the relief office" who grumble and wonder if such natural treasures embody their own experiece with this country. The Unauthorized Movie does not comment on those themes. Instead, Jib Jab merely uses Mr. Guthrie's lyrics and music as a convenient vehicle to caricature the partisan climate of the current presidential campaign. Although the combination of Mr. Guthrie's music with Jib Jab's script and animation is very funny, the caricaturing of the candidate's sound-byte attacks on each other does not transform the work into a parody of Mr. Guthrie's work. EFF's 4-page Response to the C&D: Re: Jib Jab Media, Inc. and Ludlow Music, Inc. [PDF]While your view of Guthrie's "This Land is Your Land" as being predominantly about "the beauty of the American landscape" and "the disenfranchisement of the underclass" is interesting, most Americans think of the song as an iconic expression of the ideal of national unity. Jib Jab's parody addresses, among other things, the lack of national unity that characterizes our current political climate (ending with the optimistic hope that unity might be rediscovered). In short, "This Land" explores exactly the same themes as the Guthrie original, using the parodic device of contrast and juxtaposition to comment on the original. See Abilene Music v. Sony Music Entertainment, 320 F .Supp.2d 84, 90-91 (S.D.N.Y. 2003) (emphasizing the role of contrast and juxtaposition as parodic devices). The parodic comment takes on an additional dimension of irony when viewed in light of the often omitted closing stanzas of Guthrie's original. Read both letters, they do an excellent job of summarizing current law on these issues.
Bonus: EFF cites my claim that JibJab's use clearly parodies Guthrie's work in a footnote, "It is enough that the parody here is readily and objectively perceptible, as demonstrated by the fact that a variety of commentators already perceive it clearly" (Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads).
UPDATE 0900PT
EFF's official announcement: Update on JibJab's "This Land". via Copyfight
UPDATE 2 31 July 2004
I've added a "JibJab Category to make following this story easier.
via BoingBoing
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+ TrackBacks (0) | Category: Copyright | Culture | JibJab
Posted by Ernest Miller
Seth Finkelstein responds to my post yesterday (Can Real Sue Apple Under the DMCA?) regarding who can sue under the DMCA by claiming it is a "convoluted version of an old 'argument' sometimes put forth that purported to show that the DeCSS case was invalid" (Apple FairPlay, DMCA, and circumvention arguments). He characterizes the argument thus: "The DMCA talks about decoders. But it doesn't say anything about encoders. Suppose I take a DVD movie for which I am the author and which I own the copyright. I then encode my own DVD movie with the *CSS* algorithm (that is, I use only an *encoder*, not a *decoder*). I now have a CSS-protected DVD. Thus every DVD player counts as a circumvention device, because they can play my DVD without my authority as the copyright owner! *GOTCHA!*" Well, one of the responses to that argument is that there is an implied license since those DVD players already exist. However, I do make the claim that we have a problem with the DMCA if the DVDCCA subsequently makes significant changes to the CSS requirements that harm the rogue unlicensed-use-of-DRM copyright holder. If someone can create a FairPlay-encoded file without a license from Apple then Apple may have a problem making changes to what restrictions FairPlay protects.
Finkelstein argues that courts won't accept this argument, that they will create a distinction that lets Apple do what it wants with FairPlay. I agree, and I hope so. From a policy point of view, the argument I make on behalf of Real suing Apple is absurd. However, the question is how the courts will make this distinction.
I argue that the proper way for the court to make this distinction is basically to hold the right to sue over DRM under the DMCA lies with the institution that controls the DRM. In the case of FairPlay, that would be Apple. In the case of CSS, that would be the DVDCCA. The copyright holders license DRM from DRM providers. From what I've seen, those licenses don't give any control over those DRM systems to the copyright holders and they're unlikely to because that would be foolish from the DRM provider's point of view.
Could the court create another pseudo-distinction ala Chamberlain v. Skylink (Judge Asserts Pseudo Distinction to Preserve DMCA)? Yes, and this is the argument that Finkelstein makes, that the courts will simply distinguish between "bad" actors and "good" actors. I would hope that is not how the court distinguishes the two cases and I think I could provide some good arguments as to why the distinction should focus on the rights of the DRM provider.
Why is this important? Technically it makes the DeCSS cases invalid, but that's not really the point because this distinction wouldn't have necessarily changed the outcome of those cases. Making the rightsholder under the DMCA the DRM provider is important for a couple of reasons. First, it changes DMCA fights from defendant v. sympathetic copyright holders to defendant v. technology provider. Piracy arguments will still be made, but they won't resonate as much. Second, and more importantly, it focuses attention on the paracopyright aspects of the DMCA. If the DMCA ends up ultimately being about the rights of the DRM holder, then it begins to look a lot more like a traditional type of intellectual property. In fact, it begins to look a lot like a patent. Of course, the DMCA lacks many of the constitutionally-required limitations of patent law, which is one of the arguments why the DMCA should be invalidated by the courts.
This is why I care about Who Can Sue Who Under the DMCA.
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+ TrackBacks (0) | Category: Digital Millennium Copyright Act
Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.
Today on Hatch's Hit List: Ringtone Remixers
Tip o' the hat to Alfonso Urdaneta
Custom ringtones are very handy for distinguishing your phone (and yourself) from the crowd, as this (SSEYO Ringtone Remixer with DJ Spuddy) ringtone remixing website notes: Anyone can create a ringtone remix of a popular track with just a few mouse clicks! Select the ringtone you want, make and preview your remix, and then send your handywork to your mobile phone. Easy, and cool. Well, that sounds like a derivative work to me. The intent is also extremely clear from the reference to a "popular" track. Clearly, a codeword for a copyrighted track.
Indeed, even Sun isn't afraid to encourage a little copyright infringement (AIR Media Ringtone ReMixer): This Java technology-enabled Ringtone ReMixer gives you the power to create custom mixes of the hottest hits and send them to your mobile handset. From your PC browser and mobile phone, it is easy to compose your own custom ringtones and caller ID's. Get your handset ringing with style! The exclamation mark is particularly enticing. I had to hold myself back from engaging in some serious derivative work copyright infringement (plus, the java app doesn't work with the latest version of Mozilla).
Guess if the INDUCE Act becomes law we will all have to deal with a lot more of, "was that your phone or mine?"
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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Posted by Ernest Miller
Kevin Heller makes an interesting argument regarding filesharing that parallels an argument made by Jessica Litman in her book Digital Copyright (P2P File Sharing is Non-Competitive Use of the Work). The argument is that there is a distinction between normal use and competitive use, at least before Congress screwed up copyright law in 1909.
A normal use is the use someone who has acquired a copy of a copyrighted work normally makes of it. Reading a book you got from the library is a "normal use." Watching a DVD movie is a normal use. Ripping a CD so you can play it on your iPod is a normal use. Normal uses are never copyright infringements. This isn't a fair use defense because normal use isn't a copyright infringement in the first place.
A competitive use is a use that "competes" with the rights of a copyright holder. For example, excerpting parts of a book and then selling the excerpts is a competitive use. Competitive uses are either infringement or protected by fair use.
So far, I agree completely. I think we should return to this doctrine. However, where I disagree is in how to distinguish the two types of use. Heller distinguishes the types of use by the characteristics of the user, for the most part. I distinguish them on the type of act. Heller says "consumers are not competitors." I say, in today's world, consumers, competitors, it depends on how they act, not who they are. Sitting in my den, I can manufacturer more albums than an independent label 30 years ago. I'm a publisher, if I want to be.
Heller says it is okay to be a publisher as long as I'm doing it non-commercially. I don't believe that is a sufficient distinction. Soon, everyone will have massive amounts of broadband available in the home and terabytes of storage space. Everyone will be able to "non-commercially" distribute more music than the labels could in their heydays. Copyright as we know it (or should understand it pre-1909) simply won't work under those conditions.
Heller says it is the commercial P2P file sharing networks that are the competitors. But if non-commercial distribution is legal, even if the commercial networks went away would that make any difference? If anything there would be more efficient and effective filesharing than ever.
This is why I don't agree with Heller's conclusion. Heller wants the RIAA to promise not to sue consumers if a narrowly tailored (targeting only commercial P2P networks) INDUCE Act is passed. First, you couldn't have such a promise because you couldn't get every copyright holder to agree. The enacting legislation would have to waive liability by statute. Second, and more importantly, even if the commercial systems went away you'd have just as much filesharing with the non-commercial systems. Indeed, with the liability waiver for users, technical development would be rapid and the copynorms would shift, since filesharing would have been legalized.
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July 28, 2004
Posted by Ernest Miller
...continue reading.
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Posted by Ernest Miller
I'm disappointed in myself that I didn't mention this earlier. The JibJab controversy has an obvious nexus with the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). If, as the copyright holders for "This Land is Your Land" claim, the JibJab parody is a violation of copyright then all the newscasts on the major broadcast networks encouraging people to see it are obviously "inducing" people to violate copyright and could be sued for big bucks. Millions of people have dowloaded the flash animation, and the INDUCE Act could make the broadcasters liable for nearly every single download. How will the shareholders like that, assuming there is still a broadcast company left?
The Home Recording Rights Coalition has issued a press release making this very argument. I've posted the press release in its entirety below because it doesn't appear to be on the HRRC website at present. UPDATE 1335 PT - The press release is now on the HRRC website: Are TV Networks "Inducing" Infringement?.
Of course, as the press release notes, this is not a conclusion that JibJab's parody actually does violate copyright. As I've explained, I believe it is a clear case of parody and likely protected under fair use (Parody or Satire? iRaq Posters, JibJab Animation, Fuse's Silhouette Ads). Eugene Volokh disagrees, though his argument is conclusory (JibJab SoSue).
UPDATE 2 1355 PT
Public Knowledge has issued a press release supporting fair use for the JibJab parody. Read the Public Knowledge press release below.
UPDATE 3 31 July 2004
I've added a "JibJab Category" to make following the story easier.
Read on for the press releases ...
...continue reading.
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+ TrackBacks (0) | Category: Copyright | INDUCE Act | JibJab
Posted by Ernest Miller
Derek Slater has some further thoughts on Real's announcement that they will be able to convert their Helix DRM files into Apple's FairPlay DRM format, but not the other way around (Real's Harmony Hype).
Reading his article made me consider again the question, Who Can Sue Who Under the DMCA? In my first post on Real's announcement, I doubted that Apple could use the DMCA against Real (What Real's Hacking of FairPlay Doesn't Do). In my second post, I asked Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM? The answer was unclear. I would hope not, but there are reasonable arguments on the other side.
Having thought about the issue a bit more, I begin to wonder whether Real can sue Apple under the DMCA if Apple changes the restrictions on FairPlay (for example, permitting more CD burning or limited filesharing). As I've noted in my previous posts about who can sue under the DMCA, current case law doesn't restrict it solely to those who control the DRM system but to anyone who is harmed by circumvention of the DRM system. If Apple changes their FairPlay restrictions, might that not harm copyright holders who have encoded their works under FairPlay through Real?
The anti-circumvention provisions of the DMCA (17 USC 1201) state that "to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." [emphasis added]
If I sign a contract with Apple to encode my music with FairPlay, then, as a copyright holder, I've probably given my authority to Apple to change FairPlay on their initiative. However, if I use Real's Helix DRM to encode my music, then shift the DRM to FairPlay with Real's new software, I now have a FairPlay-encoded file without having signed a contract with Apple giving them authority to change FairPlay. If Apple now changes FairPlay restrictions, they would be doing so without the authority of the copyright holder, that is, me. So, I should, theoretically, be able to sue Apple for changing FairPlay restrictions under the DMCA.
Absurd? Yes, but that is what you get when you pass a crappy, poorly-drafted and complicated law. Perhaps, as I've argued, you can interpret the DMCA such that only the DRM holder gets to sue under it. However, that would mean that the movie studios never had the authority to sue over DeCSS in the MPAA DeCSS cases.
In related news, eMusic was also upset with Real's misleading claims (RealNetwork's "Harmony" Release Creates Discord and Misinformation). Indeed, even the New York Times was confused. However, I pointed out the error of their ways and they ran a correction today (Corrections): An article in Business Day on Monday about plans by RealNetworks to give away software that will let people download songs from its online music store and play them on Apple's iPod referred imprecisely to other sources of songs for the player. While RealNetworks will be the first besides Apple to sell them in the protected iPod format, other companies sell them in the MP3 format, which the player can also use. (Go to Article) Of course, this correction is also a bit misleading. Real is not selling FairPlay-encrypted songs, they are selling Helix-encrypted songs and then providing software to convert them into FairPlay-encrypted songs. Close enough for the New York Times I guess.
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Posted by Ernest Miller
I haven't been posting all that much about broadcatching (aka RSS + BitTorrent) lately, not because there isn't anything going on, but because there has been so much going on. I also like my posts to be comprehensive and make additional connections, so I just haven't jumped back into the fray. Nevertheless, here is just a small sampling of relevant articles from the past few days.
The New York Times reports on increasing experiments with non-traditional commercial formats (Breaking the 30-Second Barrier). What is particularly interesting is the growing phenomena of "short films" aka "long commercials" aka "micro movies." These are commercials that stretch anywhere from 30+ seconds to several minutes. These are commercials, to be sure, but they are also creative and interesting enough to be content as well. People will watch them (once, generally) because they are interesting, not because they are trying to sell a product. This sort of commercial doesn't really fit into the traditional broadcast format. There are experiments, of course, but really distributing such content effectively will require broadcatching. So, I'm excited to see this development.
PlaNetwork Journal carries an article by Drazen Pantic of Unmediated.org on the development and advent of broadcatching (Anybody Can Be TV: How P2P Home Video will Challenge The Network News). The article is nice introduction to the basic ideas, a short history, potential (and difficulties). A good way to get started on the debate.
The Mercury News runs a piece on the a la carte cable debate and argues that internet distribution is the only real way to create real competition (Forget a la carte cable idea; the future is in Internet TV). Ultimately, yes. However, until then, I believe that we should deny content providers from forcing bundling on the cable companies (and not force the cable companies to give up bundling). See, FCC Requests Comments on a la Carte Cable Subscriptions.
Broadcasting & Cable reports that the WB's Jack & Bobby series ("An eccentric single mother raises two teen boys, one of whom is destined to be president of the United States") will premiere as a commercial-free broadband download before being broadcast (You’ve Got TV). This promotion is taking place in partnership with AOL, but I don't see why other television series don't give this sort of promotion a try via broadcatching.
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Posted by Ernest Miller
C|Net News is running a very interesting story about a new blog that is posting military and military-related information supposedly found on P2P filesharing networks (Are P2P networks leaking military secrets?). The blog is See What You Share on P2P. The purpose of the site is explained here: Why This Site Exists. A few months ago, I downloaded some military briefings from the Gnutella Network. The briefings were zipped and the file contained 21 documents with classifications ranging from For Official Use Only to Secret/NO FORN. Shocked at my discovery, I notified an agency on a nearby military installation. When nothing happened, I notified another agency. I continued this course because no action was taken and for a nation at war, I was concerned for the safety of our soldiers.
It may appear that I am picking on certain institutions. This is true. I want everyone to know that we can be our own worst enemies when we don’t understand the full power of our technology. I want every military and government agency to see first hand what is being shared with anyone who has a computer. Since a picture is worth a thousand words, I can save myself some talking. This is not surprising. Nor, I'm sure, is the information inadvertantly shared solely related to military and emergency services. There are probably a number of corporations that would be surprised what files are available for the downloading.
This is a real problem. However, it is properly a computer security issue, not a P2P issue, as the website's owner misleadingly claims, "Technology often outruns legislation. So is the case with Peer 2 Peer networks. Many people obtain P2P software so they can download music or movies. A large number of those people do not have any idea what they are sharing." Note the reference to legislation. Of course, the RIAA, among others, often makes this point and requests more regulation, such as the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). However, is it really the technology so much as unfamiliarity with the security issues involved?
I remember some of the earlier days of email and how people would accidentally "reply all" or forward to mailing lists information they shouldn't. Still happens, actually. Does that mean we need more regulation of email? The default settings for certain operating systems leave plenty of security holes for accessing information on a network-connected computer. Do we need operating system regulation?
See What You Share on P2P is doing a fine service alerting people (and especially gov't officials) to the security problems their networks have. However, to characterize it as a P2P problem, as opposed to a security problem, is incorrect. We all need to be more familiar with the means and necessity of protecting certain types of information on our computers.
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.
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.
Today on Hatch's Hit List: Deepnet Explorer
Tip o' the hat to John Parres
From the Deepnet Explorer homepage: Deepnet Explorer is the world’s first browser to offer fully integrated P2P file sharing capabilities and a built-in RSS/ATOM news reader. With features like tabbed browsing, pop blocking, auto login, form filler and P2P technology, Deepnet Explorer is the quick and easy way to browse the web, share files and read news simultaneously! Of course, very soon every browser is going to include newsreader capabilities. It only makes sense. And P2P is a no-brainer. Integrating it with the browser is an obvious move to streamline the interface so people can share information easily and quickly.
If enough browsers had built-in P2P, then many websites would be able to effectively offload much of their bandwidth needs. Rather than linking to the file with HTTP, they would link to the file with a bandwidth-sharing P2P protocol. Which protocol? Wouldn't really matter, actually. Heck, maybe the link would be to a hash that the browser would use to launch a search for the appropriate file via several protocols. Makes a lot of sense for certain types of legitimate distribution actually.
Unfortunately, it also makes a lot of sense for certain types of unauthorized distribution as well. That's the real problem with the INDUCE Act. Building a browser with built in capability for P2P makes a lot of sense for many legitimate purposes, just as building a browser in the first place made a lot of sense. Unfortunately, the copyright industry isn't going to like these new purposes since they'll make certain types of infringement easier, just like the original browser made certain types of infringement easier.
In the early days of the internet, people would upload MP3s to their homepages. People would use MP3 search engines to find the links. Turns out it was relatively easy to shut down these early filesharers, although the copyright industry was initially panicked. If the INDUCE Act had been in force back then, would it now be illegal to build homepages without explicit authorization? Or to use a browser that didn't recognize a mandated encrypted handshake for connection to authorized webpages only? After all, if you can connect to any IP address, you might connect to one that ignores copyright law, just as some people might use P2P to download unauthorized copyrighted files.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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Posted by Ernest Miller
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July 27, 2004
Posted by Ernest Miller
 Barbie in a Blender is a wonderful celebration of free speech and fair use:
So when Utah artist Tom Forsythe took this photograph of Barbie in a blender as part of a series of critical fine-art Barbie photos, Mattel got pissed. So what did they do to try stop Tom's message? They decided to sue his ass....Luckily for Tom, he convinced some lawyers from the ACLU to step up to and fight his case, and after a long legal battle he was victorious. The judge in the case ruled that the lawsuit clearly ran counter to the first amendment, calling Mattel's suit "groundless and unreasonable." Not only that, but the Judge's order forces Mattel to pay Tom's $1.8 million in legal fees. National Barbie-in-a-Blender Day, July 27, is a celebration of this important defense of free speech. Visit the exhibit, but Barbie's commentary on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) is my favorite. Photo by Nicholas Bergson Shilcock, Barbies Endorses SavetheiPod.com.
via Copyfight
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.
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+ TrackBacks (0) | Category: Copyright | Culture | Freedom of Expression | INDUCE Act | Oddities
Posted by Ernest Miller
C|Net News reports that the RIAA has won a significant battle in its lawsuits against thousands of John and Jane Does (Judge: RIAA can unmask file swappers). The ruling basically allows the RIAA to subpoena (on an expedited basis) a broadband provider for the identities of the John Does the RIAA has sued for copyright infringement. The RIAA must make a prima facie case of infringement, but the various arguments raised to quash subpoenas were rejected.
Although this is a decision by a single district court, it is likely to be persuasive in other courts though it isn't binding. Read the 26-page decision: Sony v. Does 1-40 [PDF].
The most important argument involved the First Amendment right to anonymity of the file sharers. While the judge recognized the First Amendment interest, he concluded that it was not sufficient to protect anonymity for filesharing of copyrighted files without any additional speech. This was the right decision. I agree with Paul Levy: Paul Levy, an attorney at the nonprofit group Public Citizen, said that "the nice thing about the ruling is that (the judge) recognizes the First Amendment interests at stake here and he applies a balancing test." Levy, who filed a friend-of-the-court brief opposing the RIAA, said that Chin's analysis ensures that companies filing a copyright infringement lawsuit must prove they have a real case and aren't merely on a fishing expedition for someone's name. The court reserved the right to address the other arguments, such as personal jurisdiction and improper joinder, later. This decision merely addressed the question of quashing the subpoenas. Now that the RIAA knows who it should sue, severance and and personal jurisdiction arguments will probably be made on behalf of the defendants.
There was one interesting aspect of the personal jurisdiction question. Defendants/amici were arguing that the IP/geographic location databases were accurate and showed most of the defendants outside of New York, while the plaintiffs were arguing that they weren't accurate enough to deny the subpoenas: A supporting declaration by Seth Schoen, staff technologist with amicus curiae Electronic Frontier Foundation, explains the process by which defedants' IP addresses can be matched up with specific geographic designations, using a publicly available database operated by the American Registry for Internet Numbers. These geographic designations indicate the "likely" locations of the residence or other venue where defendants used their Internet-connected computers. Amici maintain that as many as thirty-six of the forty Doe defendants are "likely" to be found outside of New York.
Plaintiffs, however, dispute the accuracy of the methods described in the Schoen Declaration. According to plaintiffs, the geographical designations fall "far short" of 100 percent accuracy and are "often extremely inaccurate." [citations omitted] Shades of Nitke v. Ashcroft, in which the government advocates the use of geolocation services to promote community standards on the internet with regard to obscenity. Censorware expert Seth Finkelstein has provided testimony that such services are flawed: ( Expert Report of Seth Finkelstein in Nitke v. Ashcroft).
UPDATE
Tech Law Advisor has some additional comments ( Up/Downloaders Identities Not Protected by First Amendment).
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+ TrackBacks (0) | Category: Copyright | File Sharing | Freedom of Expression | Privacy
Posted by Ernest Miller
There has been a great deal of discussion regarding the MPAA and NFL seeking to block TiVo's broadcast flag submission. The basic idea is that TiVo wants to give people the ability to share video files among ten registered devices, so that you could record something on your TiVo in the living room and then transfer it to the TiVo in the bedroom or perhaps your car or vacation home. It is a restricted circle of distribution. But this isn't good enough for the MPAA and NFL, because you might share the programming with a friend in a football blackout zone or something. Thus, they are opposing TiVo's request to the FCC to build something that provides consumer value. I'm sure glad that there wasn't a broadcast flag when the TiVo was initially developed. Good coverage and commentary from Wendy Seltzer (TiVo, Whipsawed by the Broadcast Flag) and Donna Wentworth (You Bought It. They Own It and Hollywood (Finally) Turns on TiVo, Part II), among others. Follow the links.
This is, of course, an excellent example of how the broadcast flag is absurd. However, it is also an object lesson on one of the ways that the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) could similarly be abused.
Originally, the only way to transfer files from a TiVo was to make an analog recording. Although it would have been simple to provide a digital transfer output for TiVo, the company didn't do it out of fear of triggering an MPAA lawsuit, as ReplayTV did (EFF Archives: Paramount v. ReplayTV). TiVo was successful, they didn't get sued (probably because their system was too similar to the clearly protected VCR). However, now that TiVo is trying to add additional functionality (even severely restricted functionality), the MPAA and NFL are trying to stop them. In a world without a broadcast flag, but an INDUCE Act, TiVo would get sued.
In fact, even if TiVo survived the original lawsuit, further INDUCE Act lawsuits could be filed every time there is a significant upgrade in capabilities or additional new feature. Under INDUCE, intent is "based upon all relevant information." New features and capabilities would be relevant information that a previous lawsuit didn't consider. If the copyright industry really didn't like a new technology, and it somehow survived the first lawsuit, further lawsuits are merely a question of waiting for v2.0 (or even v1.2, or similar) of the technology.
What small, innovative companies could survive under such conditions?
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.
Comments (0)
+ TrackBacks (0) | Category: Broadcast Flag | INDUCE Act
Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.
Today on Hatch's Hit List: Disaster Relief Communication Systems
A couple of months ago, technology columnist Dan Gillmor began writing about a project to establish and test communications in a simulated disaster or war zone called "Strong Angel II" (Communications Experiment's Life-Saving Goals). Communications are critically important for disaster relief. So, it's a very good thing that we have events like Strong Angel II where, On a remote piece of land in Hawaii, a civilian-military team will install and test a communications system that could make a huge difference in future conflicts and other disasters, human-made or natural. Good stuff, right? Well, one of the goals of the project is: Using off-the-shelf hardware and software, including some technology developed in Silicon Valley, the team will install the system under deliberately harsh circumstances. It will be designed to help get crucial information where it's needed, securely and reliably, but not in a way where it's subject to central control....From the standpoint of tomorrow's communications, Strong Angel has enormous potential. If it's possible to create what amounts to a cheap, ad-hoc, reliable and secure information network under difficult circumstances, human freedom itself could get a boost. Such a system could help bring a freer flow of information to places where dictatorships or lack of a standard infrastructure have kept information in the hands of a few. Again, sounds good. However, any such system will likely have many copyright infringing possibilities, especially if a cheap and reliable version is made readily available to the public. If you can avoid dictators, you can certainly avoid the RIAA.
Although the developers of such systems want them to be open source, that simply may not be acceptable to copyright holders: A major longer-term goal of Strong Angel is to create a software platform on a laptop computer that contains all open-source -- free for download and modification -- software. This is obviously needed if the experiment works well enough for deployment in many parts of the planet where proprietary software is too costly. Such robust, resiliant networking software will certainly have to be restricted. Making it available to civilians will only encourage them to use it for copyright infringement in between disasters.
Clearly, access to disaster relief communication systems will have to be restricted. The potential for copyright abuse is simply too high to allow anyone to use such systems. Anyone who says otherwise is clearly in cahoots with copyright pirates.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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Posted by Ernest Miller
An interesting point was raised in the comments section of my posting on Real's software that converts music files with Real's Helix DRM to Apple's FairPlay DRM (What Real's Hacking of FairPlay Doesn't Do). Carl Witty and Derek Slater discuss the question of whether converting from Real's Helix DRM to Apple's FairPlay DRM might be construed as a violation of the anti-circumvention provisions of the DMCA (17 USC 1201). Derek claims that Real probably has the right to do such conversions under its licensing of Helix.
This is a question I've thought a lot about and the answer would have interesting repercussions (Who Can Sue Who Under the DMCA?). I agree with Slater. The licensing for Helix has to trump any claimed injury by copyright holders who use Helix DRM. Otherwise, the DRM is no longer controlled by Real, but by the copyright holders. Who would license DRM knowing that copyright holders would not be bound by the terms of the license?
However, Seth Finkelstein disagrees (and so does the Second Circuit). In the MPAA DeCSS cases, the movie studios were permitted to bring the action despite the fact that they had zero rights in CSS according to the licenses they signed with the DVDCCA, which manages the rights to CSS. The DMCA gives a very broad right to sue: "[a]ny person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States court for such violation." If converting from Helix DRM to FairPlay DRM harms the copyright holder (because FairPlay has been cracked, for example), shouldn't they be able to sue Real under terms of the DMCA?
It's a question I would love to see the courts deal with.
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Posted by Ernest Miller
Chris Cohen has been on a roll analyzing whether various derivative works are satires or parodies. The difference can mean one is legal and the other isn't under a fair use analysis. The basic rule is that a parody, which critiques the work borrowed from, is okay. Satire, which critiques something other than the work borrowed from, is not fair use. I tend to take a much broader view regarding whether something is parody (Parody of a Parody), so read on for some of my responses ...
UPDATED 0915 PT
UPDATED 2 1130 PT
UPDATE 3 31 July 2004
I've added a JibJab Category" to make following the story easier.
...continue reading.
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July 26, 2004
Posted by Ernest Miller
...continue reading.
Comments (4)
+ TrackBacks (0) | Category: INDUCE Act
Posted by Ernest Miller
"Fred Wilhelms is an entertainment attorney in Nashville, representing recording artists and songwriters on royalty and benefit issues. His clients include Howard Tate, Bettye LaVette, Sam Moore, Mark Farner, and Paul Revere. He has testified before the California Senate Committee on the Entertainment Industry's royalty accounting practices." He has also just written a lengthy, blistering attack ("this piece of legislation scares the hell out of me") on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in Streamingmedia.com (Commentary: No Matter What You Call It, the Inducing Infringement of Copyright Act Spells Trouble). This is one artist's lawyer who recognizes that putting so much power into the hands of the labels and movie studios is not a good idea for artists: The fundamental problem I have with P2P is that the creators don’t get paid for the distribution of their work, and I don’t really buy the arguments that this "free" dissemination encourages people to buy CDs, or that it builds a fan base, or that it promotes their live appearances. The hard numbers really don’t bear these contentions out. INDUCE, however, attacks the wrong part of the problem by attempting to stop technology in its tracks. As the VCR proved, the MPAA’s position in the Betamax case was shortsighted at best, and the current bill proves they and their allies haven’t learned anything in the intervening 20 years.
Rather than figure out how to get paid from the technology, Big Content is supporting INDUCE in order to stop the technology from coming to market. This is just stupid. INDUCE isn’t going to stop hardware and software developers outside the U.S. from working on new technology and bringing it to market. It is going to stop U.S. developers from participating in this growth, just as it will stop U.S. manufacturers, distributors, and retailers from achieving any share of the profits to be made, or employing the people who perform these functions, and no one else is going to be paid, either.
INDUCE gives Big Content a hammer to smash new technology. INDUCE gives Big Content a hammer to smash First Amendment rights to even talk favorably about new technology. If you are as unsettled by this idea as I am, I suggest you at least write someone about it. Indeed. Try EFF's action alert ( The Induce Act: Innovation Under Attack) or Save the iPod ( Fax Your Senators).
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.
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Posted by Ernest Miller
The New York Times reports that Real has reverse-engineered Apple's proprietary FairPlay DRM so that music in Real's proprietary DRM format can be converted to FairPlay and played on the iPod (RealNetworks Plans to Sell Songs to Be Played on iPods). Strangely, there is no mention of Hymn (Hear Your Music aNywhere), which has also reverse-engineered FairPlay. I wonder if any Real engineers looked there for some hints (well, actually the whole thing), given that they wouldn't want to violate any of Apple's click-wrap contracts. Hmmmm. For more information, Frank Field has a good roundup of press coverage and the press release on Furdlog (Mousetrapped?).
Of course, the NY Times gets the reporting wrong. "This will be the first time any company other than Apple has sold songs for the iPod." Ummm, no. Any company that sells songs in the non-DRM'd encumbered MP3 format is selling songs for the iPod, given that the iPod supports MP3 playback. Check out Magnatune for example.
One question, of course, is whether Real's efforts here violate the DMCA, which prohibits the distribution of anti-circumvention devices. Such an analysis is very fact-dependent, and there isn't enough known about Real's program to say for sure, but I suspect that it doesn't. Real's software is apparently converting songs from one format into the FairPlay DRM'd format. This would not seem, without more information, to be an anti-circumvention function.
Note, however, what Real is not doing (and strangely, the news reports don't seem to mention either). You can convert Real files into FairPlay files, but you can't convert FairPlay files into Real files. Real is not allowing people to copy their iTunes into Real's DRM'd format. Why? Because it would likely be a clear violation of the DMCA. You may be able to play Real's DRM'd music on an iPod, but you still won't be able to play iTunes on a portable music player other than an iPod.
So, this isn't quite the breakthrough the analysts and whatnot seem to be claiming. If you buy anything from iTunes, you're still locked into Apple. If you buy an iPod, you can buy from Real's music store, but what real advantage does that provide? A DRM connoisseur might say that you will have the option of using other players in the future, but so what? Anyone who knows anything about DRM knows that you can't trust any of these competing formats. Perhaps in a few years one might want to buy another brand of portable music player, but what happens if Real's DRM fails in the marketplace and is squeezed out? What good did the flexibility do?
If people really care about DRM and its potential costs in the future, then they probably are avoiding DRM all together and sticking with non-DRM formats such as MP3 or Ogg Vorbis. Let me know when there is some important news here, such as Apple licensing FairPlay for use on other players.
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.
Today on Hatch's Hit List: FreeCache
Tip o' the hat to Scott Matthews
FreeCache is (Internet Archive FAQ: FreeCache): a demand-driven, distributed caching system. Cooperating caches exchange files without burdening the original site too much. Basically, the system reduces bandwidth by caching large files nearer the users. Unlike other caches, the various "FreeCaches" distribute information among themselves. This means that bandwidth required for the original site is minimized. This is an excellent means for those without lots of spare bandwidth to distribute larger files.
Of course, if the INDUCE Act as currently written becomes law, lawyers are going to start asking some very disturbing questions regarding why the notorious copyright scofflaws at the Internet Archive developed such a system they knew could be easily abused by infringers. Heck, anyone can come along and make infringing material available via FreeCache.
I see no warning about making copyrighted files available through FreeCache. The website talks about moving large files of "free" content. It doesn't say "authorized" content or "public domain" content, it says "free" content. In this context, "free" is the equivalent of "illicit." After all, when people talk about downloading "free" music, they usually mean infringing files. Nor is there a disclaimer or terms of service. Anyone can come along and create a FreeCache link, as long as the file is greater than 5MB (which many illicit files are).
FreeCache is very insidious as well. It works through a plain vanilla browser. Those who click on FreeCache link see no warning message.
You can get files taken down from FreeCache, but they just get put back up again (FreeCache Forums: Illegal Content): I was perusing the content in my cache and checking the detailed status page and I noticed illegal content containing videos in one of the caches I run. What is freecache.org doing to stop people from mirroring illegal content. I currently run 2 fairly heavily used caches and it looks like only one of them had illegal content. I cleared the cache to purge the problem, but the user just abused the service again by uploading the content again. Now you're probably thinking, "aren't the people who run FreeCache protected by the DMCA safe harbor provisions codified at 17 USC 512?" And the answer is probably yes ( The INDUCE Act (IICA) and the Safe Harbor Provisions of the DMCA). However, while the DMCA safe harbors probably protect servers that run FreeCache, there is no Safe Harbor for distributing the FreeCache CGI, which must be installed in order for there to be local FreeCaches.
With a few modifications (mandatory DRM, restrictions on who may create FreeCache files, etc.) I'm sure that Hollywood and FreeCache could work out their differences.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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Posted by Ernest Miller
Sen. Orrin Hatch (R-UT) has requested assistance in drafting alternative language for the severely flawed Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Both the Business Software Alliance and NetCoalition have provided guidelines on what the alternative language should include. The IEEE-USA has gone one step further and actually drafted alternative language (Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition and Backing Away from the INDUCE Act (IICA)).
Well, let no one say that I merely criticize and don't work on providing an alternative. Taking into consideration the suggestions of the BSA and NetCoalition, as well as basing the language on the IEEE-USA's, I've begun working on a draft INDUCE Act with alternative language (aka the "Support Technology, Oppose Piracy, Protect Innovation Research And Correct Youth Act of 2004," aka the "STOP PIRACY" Act). I didn't expect to get it right the first time. Version 1.0 is here: Ernest Miller's Draft Substitute for the INDUCE Act (IICA). Below is version 2.0 with differences noted in bold (except the title): Proposed Substitute to the Inducing Infringement of Copyrights Act
Section 501 of title 17, United States Code, is amended by adding at the end the following:
(g)(1) Inducement of Infringement. Whoever actively and with actual knowledge induces infringement of a copyrighted work by another under Subsections 106(3), 106(4) or 106(6) of this title with the specific and actual intent to cause and to financially benefit from the infringing acts shall be liable as an infringer.
(2) Contribution to an Infringement. Whoever materially and with actual knowledge contributes to the infringement of a copyrighted work by another shall be liable as an infringer.
(3) Vicarious Infringement. Whoever has the right and ability to supervise an activity resulting in a direct infringement and has a direct financial interest in such activity and infringement shall be liable as an infringer.
(4) Limitations on Secondary Liability. (A) manufacture, distribution, marketing, operation, sale, servicing, support, or other use of embodiments of technology capable of use for infringement, with or without the knowledge that an unaffiliated third party will infringe, cannot constitute inducement of infringement under Subsection g(1) in the absence of any additional active steps taken to encourage direct infringement.
(B) manufacture, distribution, marketing, operation, sale, servicing, support or other use of embodiments of technology capable of a substantial noninfringing use shall not be liable under this title, except for direct infringement and as provided under Subsection g(1). (5) Damages for violations of section (g)(1) of this section shall be limited to an injunction against inducement, and actual damages for infringement of a work for which the defendant had specific and actual knowledge the work would be infringed. There are two differences from version 1.0. The first distinction limits inducement to particular types of direct infringement (distribution, public performance and transmission). The reasons for this are several. For example, mucking with the reproduction right could cause headaches with regard to the mechanical license for phonorecords. The derivate work right doesn't seem to be a proper target either. There would seem to be too much danger of collateral damage with regard to creative uses that we would wish to protect ( The INDUCE Act and the Right to Prepare Derivative Works).
In any case, the problem cited that the INDUCE Act is meant to solve is not the making of copies, or of derivative works, but of the distribution of these works. If you have 100 copies of a work at home, what is the harm? The real problem is when those copies are distributed. Thus, the first change narrows the INDUCE Act to target the wrong-doers, and not someone who might suggest making mashups at home.
The second change addresses what the proponents of the INDUCE Act claim is the purpose of the Act. They claim that they wish to address the commercial inducers, those who are making "millions of dollars while attempting to avoid any personal risk of the severe civil and criminal penalties for copyright infringement" (Judiciary Statement: “Protecting Innovation and Art While Preventing Piracy”). By including a "financial benefit" clause, only commercial inducers will be targeted.
This is a second draft. It probably still isn't right. If you have any suggested changes, comments, etc., please let me know.
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.
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July 25, 2004
Posted by Ernest Miller
From my provincial American point of view, British libel law sucks. The First Amendment provides strong protection against libel charges by public figures, while British law seemingly favors such plaintiffs. So, you'll often hear about public figures suing for libel (or, more often, threatening to sue) in British courts instead of futilely going to American courts.
So it was with great interest that I read yesterday's New York Times' article about former President Clinton making changes to his autobiography, My Life, for publication in the UK (Changing His 'Life' to Suit British Law). Apparently, the British publisher feared a libel suit from Kenneth Starr, the special prosecutor and nemesis of then-President Clinton.
Strangely, though the article claimed that the publishers feared a lawsuit from Starr (now Dean of Pepperdine Univ. School of Law), there was no mention that either the British publishers or the New York Times reporter had spoken to Starr and asked his opinion of the matter. How hard would it have been for the NY Times reporter to get at least a "no comment" from Starr's office?
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Posted by Ernest Miller
ChangeThis is a going to be (it launches mid-August) an online magazine that will publish long-form articles that make a non-partisan case about particular issues.
My normal response to such an effort would be: "Cool. More power to you. It's going to be tough; garnering attention isn't easy. However, if you publish quality material (also not easy), eventually you will grow an audience and, maybe, even a community (at least that's what I tell my ego when I spend inordinate amounts of time blogging). The New Republic had to start somewhere too. Good luck."
My actual response to this particular online magazine is "what a bunch of pretentious, condescending idiots." You see, this isn't simply an online magazine. Oh no, that would be too mundane. It turns out that all other media is a wasteland, but a handful of interns have figured out how to provide the public with the rich, deep, fact-based lectures that we, the people, are so desperately denied.
The initial "manifesto" (article is such a mundane word) claims that (ChangeThis Manifesto): Sometimes it seems as though our disagreements over everything—from politics to business to the designated hitter rule—are more serious and more divisive than ever before. People are making emotional, knee-jerk decisions, then standing by them, sometimes fighting to the death to defend their position. To the death! Somehow I must have missed the bloodshed over the designated hitter rule. Anyway, who knew that the solution to this rising trend of violence-laden arguments was an online magazine that publishes landscape-formatted PDFs? With pull-quotes!
I'd fisk the thing, but why bother? Read the initial manifesto yourself. It's only 9 pages with lots (and lots) of off-white whitespace. Through it you will: learn how the internet has reduced your ability to make rational decisions; be made aware that human beings are susceptible to charismatic leadership; have explained that a persuasive argument can change minds; and, most importantly, be enlightened about the fact that the problems in modern discourse are the media's fault. Heck, it practically fisks itself.
For more fun with the "manifesto," feel free to check out Clay Shirky's pre-launch vivisection (Change This) or Jeff Jarvis pointing out that ChangeThis seems determined to change media to an older model (Change for the sake of ChangeThis). Oh, yeah, ChangeThis has a blog that posts the newest entries at the bottom of the page (Read and Pass).
In related pretentious news, the Washington Post (annoying reg. req.) Outlook section has a yet another article bemoaning the fact that Americans are not reading "serious" literature and instead waste our time with television, movies, and trashy bestsellers (As I Live And Read). The author, a book reviewer, points his finger at youth: "Who among the young aspires to be cultivated and learned, which takes discipline, rather than breezily provocative, wise-crackingly 'edgy'?"
Strangely, however, the author engages in some breezily provocative wise-cracking himself. Great books leave us "shaken and stirred." Like James Bond's favorite vodka martini? The relationship between book and reader is too "often a wrestling match. No pain, no gain." Wraslin' - now that's sumthin' Amuricans'll unnerstand. And poetry is like a Spaghetti Western hero: "poetry stands quietly in the dusty street, as cool and self-contained as a lone gunfighter with his serape flapping in the wind." Make my day.
Here's an idea. Instead of telling us what a tragedy it is that we're not reading good literature. Why don't you pick a piece of good literature and explain why we should engage with it. This essay is about as useful and relevant to people reading good literature as those leatherbound classics you can buy in bulk.
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July 24, 2004
Posted by Ernest Miller
Sen. Orrin Hatch (R-UT) has requested assistance in drafting alternative language for the severely flawed Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Both the Business Software Alliance and NetCoalition have provided guidelines on what the alternative language should include. The IEEE-USA has gone one step further and actually drafted alternative language (Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition and Backing Away from the INDUCE Act (IICA)).
Well, let no one say that I merely criticize and don't work on providing an alternative. Taking into consideration the suggestions of the BSA and NetCoalition, as well as basing the language on the IEEE-USA's, here is my draft substitute for the INDUCE Act: Proposed Substitute to the Inducing Infringement of Copyrights Act
Section 501 of title 17, United States Code, is amended by adding at the end the following:
(g)(1) Inducement of Infringement. Whoever actively and with actual knowledge induces infringement of a copyrighted work by another with the specific and actual intent to cause the infringing acts shall be liable as an infringer.
(2) Contribution to an Infringement. Whoever materially and with actual knowledge contributes to the infringement of a copyrighted work by another shall be liable as an infringer.
(3) Vicarious Infringement. Whoever has the right and ability to supervise an activity resulting in a direct infringement and has a direct financial interest in such activity and infringement shall be liable as an infringer.
(4) Limitations on Secondary Liability. (A) manufacture, distribution, marketing, operation, sale, servicing, support, or other use of embodiments of technology capable of use for infringement, with or without the knowledge that an unaffiliated third party will infringe, cannot constitute inducement of infringement under Subsection g(1) in the absence of any additional active steps taken to encourage direct infringement.
(B) manufacture, distribution, marketing, operation, sale, servicing, support or other use of embodiments of technology capable of a substantial noninfringing use shall not be liable under this title, except for direct infringement and as provided under Subsection g(1). (5) Damages for violations of section (g)(1) of this section shall be limited to an injunction against inducement, and actual damages for infringement of a work for which the defendant had specific and actual knowledge the work would be infringed. This is a first draft, of course. If you have any suggested changes, comments, etc., please let me know.
UPDATE 2025 PT 24 July 2004
If this language were to be proposed as a bill, it could be called the "Support Technology, Oppose Piracy, Protect Innovation Research And Correct Youth Act of 2004," aka the "STOP PIRACY Act."
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.
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July 23, 2004
Posted by Ernest Miller
A few days ago, I noted that the number of co-sponsors for the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) had increased to nine, but that "I've yet to hear of a single senator who opposes or even has serious questions about the bill" (Number of Co-sponsors for INDUCE Act (IICA) Growing).
Well, now I've heard of one.
Sen. Norm Coleman (R-MN) has written Matt Perkins, a constituent, that he is opposed to the INDUCE Act (Coleman on the INDUCE Act): The debate surrounding the culpability of producers and sellers of “dual-use” technology under copyright law was first brought before U.S. policy makers two decades ago with the introduction of the videocassette recorder (VCR). In Sony Corp. v. Universal City Studios, the U.S. Supreme Court decided that someone selling copying equipment would not be liable if a buyer used it to infringe copyright as long as the equipment was "capable of substantial non-infringing use." The Induce Act readdresses the culpability of producers and sellers of “dual-use” technology under copyright law by making any actor who aids, abets, or induces a copyright violation liable as an infringer.
While, I believe that an individual who has a copyright should be able to protect it, I do not believe that the Induce Act is the right answer to piracy. Rather than effectively prevent piracy, S. 2560 would expose makers and sellers of dual-use technology to charges of copyright infringement simply because one buyer committed a copyright violation. As Perkins notes, this appears to be a well-crafted reply, which suggests it is a form response. Perkins is a bit disappointed in himself for not writing to his representatives right away, but he is to be commended: every communication is valuable. In any case, the fact that it is a form response is a good thing. It means that the Senator has gotten many communications from his constituents on this issue. EFF's action alert ( The Induce Act: Innovation Under Attack) and Save the iPod ( Fax Your Senators) must be having an effect.
A bit of good news to start the weekend with (and if you've gotten a similar letter from a Senator, please let me know - ernest.miller 8T aya.yale.edu).
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.
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Posted by Ernest Miller
...continue reading.
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.
Today on Hatch's Hit List: Virtual Jigsaw Puzzles
It is Friday, so continuing with the precedent set last week of demonstrating how a maker of children's toys was threatened by the INDUCE Act (Hatch's Hit List #6 - Legos), once again I look at the lighter side of massively expanding copyright liability.
Who hasn't put together a jigsaw puzzle at one point or another? Of course, physical puzzle pieces have a tendency to get bent through enthusiasm, or even lost. So why not a virtual puzzle on your PC, where pieces can't get lost? Alright, so maybe it isn't as fun, but it sure seems popular given the number of virtual puzzle programs out there. Of course, I need only one example, so take a look at: BrainsBreaker 4.2.
The poorly-named BrainsBreaker is a virtual puzzle program ("Look and feel as you would expect from a real cardboard jigsaw puzzle [emphasis in original]"). Sounds innocent, right? Wrong! The program is clearly seducing people (including children, who often play with puzzles) into the crime of copyright infringement: Create new puzzles with your (or any) photos and share them with anyone [emphasis in original] Note the "your (or any) photos" language. Clearly, that is meant to entice people to use photos that aren't theirs, that are copyrighted! Thus creating an infringing derivative work. And, my god! The website actually encourages people to share the resulting derivative work. For shame. For shame.
There are even instructions for obtaining copyrighted images: Chasing images for creating new jigsaw puzzles for BrainsBreaker. Although there is a disclaimer ("Please, employ these photos only for personal use, honor each webmaster's Copyright"), they are linking to numerous websites that clearly have not given permission to people to make derivative works and share them with friends. "[T]he Internet is full of wonderful images of all kinds that you can turn into puzzles in a snap." Indeed.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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Posted by Ernest Miller
...continue reading.
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Posted by Ernest Miller
Retrograde motion has been spotted among some of the early adherents of the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Two significant supporters of the bill are having second thoughts: the Business Software Alliance and Hiawatha Bray. Read on...
...continue reading.
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July 22, 2004
Posted by Ernest Miller
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Posted by Ernest Miller
Ed Felten invited everyone over to his blog, Freedom to Tinker, to participate in a contemporaneous discussion of the Senate Judiciary Committee hearing today (Protecting Innovation and Art while Preventing Piracy) on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) (Induce Act Hearing Webcast, Live Discussion). Lots of good play-by-play discussion by such people as: Ed Felten, Wendy Seltzer, Seth Finkelstein. Matt Perkins, Drew Vogel, Chris Cohen, and yours truly.
Chris Cohen also plugs his new INDUCE Act blog (motto: "All INDUCE Act News, All the Time"): Inducing Infringement of Copyrights Act of 2004 Blog.
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.
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Posted by Ernest Miller
...continue reading.
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Posted by Ernest Miller
Jeff Jarvis has a very good post this morning about shifting cultural mores (and/or memes?) (A programmer's society replaces a lawyer's society). As he drops his son off at programming camp, he postulates that we are shifting from a lawyer-centric society to a programmer-centric society. I would use the term "hacker" myself, but I think he has a very good point. Lawyers are necessarily a suspicious breed. They live by rules. They think in terms of us vs. them. They think contention. They argue for sport. They always think they can appeal to a higher authority. They aim for victory. They are patient.
All those traits have an impact on American society -- many or most of them not good. The fact that lawyers run government is at the root of many of government's problems: Government has become all about arguing, little about serving.
But now imagine if former programmers start rising to the heights of American business and government and cultural life.
Programmers are logical. They believe in cause and effect. They believe any problem can be solved if you just find the cause. When they do battle, it's with a mistake, not a person. They live in the details. They believe in openness and transparency. They also believe in following rules but the rules of reality -- what a machine can and can't do -- over the rules man made up. They believe in planning. They, too, are patient. What else? It's a brief post and written in generalities, but there is definitely something to the distinction between a lawyer's ethos and a hacker's ethos. I agree with Jarvis that this is mostly a good thing.
However, will the lawyers let it happen? Case in point: the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). When innovation has to be vetted by lawyers first, can the hackers' ethos thrive? I'm very worried that it cannot.
UPDATE 0910 PT
Rick Klau has some excellent comments on Jarvis' post (What if lawyers became programmers?).
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.
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Posted by Ernest Miller
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Posted by Ernest Miller
Due to the Senate Judiciary Committee hearing today (Protecting Innovation and Art while Preventing Piracy) there has been a minor flurry of press concerning the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act).
WIRED has a brief overview of some of the hearing witnesses and their likely positions (Copyright Bill to Kill Tech?).
Salon (sub. or 1-day pass) publishes an op-ed by Siva Vaidhyanathan (Is your computer a loaded gun?). In a surprising twist, Vaidhyanathan comes out in favor of the INDUCE Act ... Not. The piece is an excellent example of how to make a short and eloquent case against the bill: The torrent of unauthorized file sharing through peer-to-peer Internet services has generated a barrage of panic, overreaction and reckless attempts to change the cultural and technological behavior of some 60 million Americans.
C|Net News has the worst news: the Copyright Office is going to be one of the main supporters of the INDUCE Act (Antipiracy bill gains new ally): Peters [Register of Copyrights] goes even further than the politicians supporting the Induce Act, saying a 1984 Supreme Court decision "should be replaced by a more flexible rule that is more meaningful in the technological age." That 5-4 ruling said that VCRs were legal to sell because they were "capable of substantial noninfringing uses"--a legal shield that one federal court has extended to cover the Grokster and Morpheus file-swapping networks. [links omitted] I've got a copy of Peters' written statement. I'll be going through in detail later, but let me just note that it is pretty darn bad. See also, Techdirt ( Copyright Office Endorses INDUCE Act).
UPDATE 0915 PT
Read Marybeth Peter's 22-page statement for yourself: Statement of Marybeth Peters on S. 2560 [PDF]. [I'm still working on a longer post on it.]
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.
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.
Today on Hatch's Hit List: 3D Scanners
They're getting smaller and they're getting cheaper. That means that they'll be heading into the consumer range soon, if they aren't already there. 3D Scanners, not quite an everyday item yet, which makes them particularly vulnerable to the INDUCE Act.
Of course, that is the problem with new technology, people don't see how, in a few years, they might come to be seen as irreplaceable: how did we ever live without it? Not every technology ends up being useful, of course, but plenty of them went through a stage where their ultimate promise wasn't quite clear.
For example, what might one use a 3D scanner for? According to one manufacturer (Desktop 3D Scanner): Ideal for scanning sculpted characters and other objects for computer animation, product prototypes, and for research applications. Sounds pretty good to me. Lots of people are doing animation at home, as well as creating models for 3D game mods. Some of them would likely love to use a consumer 3D scanner to make creating such models easily (think about what you could add to "The Sims"!). And, of course, if you have a 3D Printer as well, watch out - the potential uses are unlimited ( Hatch's Hit List #2 - 3D Printers)!
Who knows what other great uses people may come up with for 3D scanners? Sizing for mail order clothes? It doesn't really matter, however, because, if the INDUCE Act passes, many of the initial uses are clearly going to involve copyright infringement. Anyone selling consumer-priced 3D scanners will obviously know that they will be used for copyright infringement, which means they must be intended for copyright infringement, at least as far as the reasonable person may be concerned. Thus, the INDUCE Act-related end of another promising new consumer technology.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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July 21, 2004
Posted by Ernest Miller
Two significant editorials against the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) were published today. Ed Felten points to a Wall Street Journal op-ed (alas, behind a subscription wall) by former Intel VP Les Vadasz (Vadasz Attacks INDUCE Act): Sen. Hatch and others argue that the bill will protect kids from porn and punish those who "intentionally induce" piracy. In reality it will do neither. But it will do serious harm to innovation. Arnold Kling also points to this op-ed and asks, "What would be the social costs and benefits of Microsoft, Intel, or Google taking over one or more of the large music publishers ( Technology Innovation vs. Government, July 21, 2004)?" He also provides the following quote from Vadasz' essay: The more we attempt to provide government protection to the old ways of doing business, the less motivation we provide to the entertainment industry to adapt and benefit from new technology. ...
Most importantly, what we need are legislators who can curb their urge to legislate in areas where their actions are likely to do more harm than good. The other piece comes from the Competitive Enterprise Institute. George Pieler, attorney and former Deputy Counsel to Sen. Bob Dole, has penned a 4-page attack on the bill ( Send Me No Files: Senate INDUCEs a Threat to the Future of Information Technology [PDF]): The INDUCE Act’s supporters claim they are just aiming at “bad actors”—flagrant facilitators of copyright offenses, mainly in the area of P2P sharing of music and video files. If so, they went to the wrong lawyer to draft the bill. This bill may be directed at infringement P2P file downloads, but it is far more sweeping. S. 2560 creates a new cause of action that would strike at any technology—new or old— that might be used in a manner unapproved by the copyright holder....
Indeed, the sweeping new legal concept behind INDUCE would establish a de facto permitting process for any business or technology that enables transmission or copying of copyrightable material. The potential for inducement would have to be weighed before the introduction of a new technology or device. Government standards would likely define “inducement” and require a sort of “inducement impact statement.” In essence this constitutes a “precautionary principle” for technology, such that no new technology or product can be marketed until it can be proven, in advance, that it will never do harm to anyone anywhere (a virtual impossibility since one cannot prove a negative). The chilling effect on the American economy would be substantial. [italics in original] Indeed. Read the whole thing.
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.
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Posted by Ernest Miller
Mary Hodder has just announced that Technorati will be assisting CNN cover the Democratic National Convention (Technorati is Going to The Demo Convention with CNN): CNN just announced that Technorati will joining them at the Democratic National Convention next week (I'll have a CNN press release to link to soon). Dave Sifry and I will be on-site in CNN’s convention broadcast center, where Dave will provide regular on-air commentary on what bloggers are saying about politics and the convention (thousands of them, not just A-listers or convention credentialed bloggers). We are also going live with a politics site. Our new site will make it easier for people to see what political bloggers are saying about the convention and CNN.com will link to this site, and we’ll be updating the CNN site with the latest. [link in original] It is still unclear just how bloggers (both credentialed and outside) will change convention coverage, if at all, but this is a smart move by CNN to take as much advantage of the opportunity as possible.
Congratulations to Mary and the Technorati team. Good luck!
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Posted by Ernest Miller
Today, Slate asks "Just how inventive can an anonymous group of people be" (Art Mobs)? "Collaboration is old hat," as the author says but, "until now it's been limited to a small handful of people, usually face to face. The Internet lets thousands of total strangers collaborate to produce a truly hivelike result" (I'm not sure about that "hivelike" adjective. Why would virtual collaboration be any more hivelike than collaboration face-to-face? How many people work together to make a movie? Is a movie "hivelike"?).
In any case, the article looks at some interesting experiments in internet-based collaborative art. Some produce pretty good results, others not. The article goes on to ask why, and one conclusion is that "Truly huge artistic collaboration on the Internet seems to work only if the gang has a well-defined objective." And this is different from face-to-face collaboration, how? Whenever you have a group of people trying to achieve a subjective goal, the more subjective it is, the more they're going to need direction.
Actually, I think we need to match means and goals. Some forms of collaboration suit certain types of art better than other types of art, whether that collaboration is face-to-face or anonymous. It would be more useful, I think, to distinguish which forms of collaboration are handled better face-to-face as opposed to anonymous collaboration and why.
Strangely, the article goes off on a tangent at the end: One day, it's likely that an artist will discover the right mix, or some Web designer will invent an online engine that elegantly channels a million contributions into a single compelling artwork. So far, the closest we've yet come is with music, which, thanks to the influence of hip-hop, techno, and applications like GarageBand, is increasingly a cut-and-paste art form. [link in original] But this sort of music isn't an example of massive collaboration, except in a very broad definition. It is an example of individuals remixing existing works, which isn't really collaborative in the sense the article had been talking about. However, if that is the definition of collaboration, than computing and networks have enabled all sorts of fantastic group collaboration (i.e., machinima, video mashups, game mods, etc.). Heck, blogs in general are an example of remixing.
This is an interesting article, but I'm not sure it has the right focus.
An aside: the article did bring one thought to mind. GNU/Linux as art. Eric S. Raymond famously described the process of open source vs. closed source as a distinction between The Cathedral and the Bazaar. However, though the process of development may be different, hasn't GNU/Linux become a cathedral of sorts? Like the great cathedrals of Europe, isn't Linux a cathedral of code, both functional and beautiful?
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Posted by Ernest Miller
As the communications world migrates to IP-based services, the FCC feels that it is losing regulatory control over the endpoints of the network (where most of the interesting stuff is happening). Consequently, the FCC is trying to figure out ways that it can regulate the endpoints, either through breaking the end-to-end principle and/or direct regulation of the application layer. This should be a scary thought to anyone who thinks dumb networks are a really good idea. As part of this massive regulatory shift, the FCC will be holding a roundtable discussion on July 30, 2004 (FCC Announces Agenda and Featured Panelists for July 30, 2004 Global Roundtable Discussion on Internet-Protocol Based Services [PDF]): On Friday, July 30, 2004, the FCC’s Internet Policy Working Group (IPWG) will hold a roundtable discussion to address international issues associated with the migration of communications services and applications to IP-based technologies. The event is open to the public, and seating will be available on a first-come, first-served basis.
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Posted by Ernest Miller
Indecent and profane language regulation aren't the only way the FCC mucks around with content regulation of broadcast. The same statutes and justifications for regulating "bad" speech provide the foundation for mandating certain types of "good" speech. This "good" speech is usually referred to by the rubric "public interest obligations." Censorship has two faces, what you can't say and what you must say.
FCC Chairman Michael Powell seems awfully fond of defending indecency regulations (My Trip to California: Congress is elected and represents the full body of the American people and the laws it passes are presumed to be reflective of the public will. Congress, having passed the law, can and has directed the FCC to enforce the law. This is where our authority (indeed our obligation) comes from. Of course, that justification still leaves much discretion in the hands of the FCC regarding how to enforce the law. What Powell doesn't explain is why the FCC has taken such an aggressive position regarding indecency enforcement but not in requiring stricter public interest obligations.
Don't get me wrong, I'm against both indecency regulation and public interest obligations. I just want to point out Powell's hypocrisy. Of course, a better demonstration of this hypocrisy comes from Commissioner Michael Copps who consistently favors strong regulation of both indecency and public interest obligations. His recent speech to the Public Interest, Public Airwaves Coalition proves this (Remarks of Commissioner Michael J. Copps, Public Interest, Public Airwaves Coalition, Washington, DC, July 19, 2004 [PDF]) We need America’s broadcasters to step up to the plate and correct this deplorable mess. Commissioner Adelstein has made some really good suggestions on these issues. The Public Interest, Public Airwaves coalition has put forth more good ideas. I was proud to be present at their unveiling. Some broadcasters are committing to air more candidate-centered speech and public service announcements this year—but not enough of them. Wouldn’t it be nice to see every broadcaster in this country step up to the plate and designate the rest of this election year as the “Campaign for America” and devote some truly meaningful time to it. And I don’t mean just a few minutes here and there, but time commensurate with the tough challenges that confront every citizen in 2004. The issues are war and jobs and health care and deficits and consumer well-being… yet those charged with using the public airwaves for the public good can’t get serious about covering what’s at stake? And what are the "good ideas" that the Public Interest, Public Airwaves Coalition supports ( Proposed Processing Guidelines)? Basically, they would set out a series of obligations that broadcasters must meet in order to get their licences renewed: To receive staff level approval, a licensee shall air a minimum of three (3) hours per week of qualifying local civic or electoral affairs programming on the most-watched (primary) channel they control/operate....- It must be aired between 7:00 a.m. and 11:35 p.m. with at least 50 percent of that programming being aired between 5:00 p.m. and 11:35 p.m.
- At least 75 percent of the required minimum must be "first-run programming" by the licensee.
- A licensee holding multiple licenses within the same area (as defined by the Commission's rules permitting multiple ownership) may not fulfill its requirements by duplicating original "first run" programming on its stations. Each station licensed within a market must fulfill the public interest guidelines by providing the public with a unique perspective.
- To the extent that a licensee utilizes such distribution and promotion mechanisms as personal video recorders (PVRs), video-on-demand (VOD), and electronic program guides (EPGs), local civic and electoral affairs programming must be made available and promoted using these and other utilized interactive technologies.
- It must be identified and documented as local civic or electoral affairs programming, and this information must be made available in the licensee's public file and website.
Is this what free speech looks like? And this is just a small sample of the extensive list of requirements that the coalition suggests. All for your own good, of course.
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.
Today on Hatch's Hit List: Darknets
I'm using the term "darknets" to refer to closed or private P2P networks, such as WASTE, which is described as: an anonymous, secure, and encryped collaboration tool which allows users to both share ideas through the chat interface and share data through the download system. WASTE is RSA secured, and has been hearalded as the most secure P2P connection protocol currently in development. Most P2P systems are open to anyone who joins the network. When you participate in one of the standard P2P services, you are essentially uploading and downloading with everyone else on the system, whoever they might be.
For a number of reasons, some people don't want to share certain files with the world. They would prefer to have private networks that restrict membership and are cryptographically obscured against prying eyes. For example, some may wish to share home videos solely with family and friends. Or perhaps the darknet can be used for ad hoc business collaboration. There are many, many legitimate uses (otherwise known as "substantial non-infringing" uses) for such darknets. Of course, there are just as many illegitimate uses, such as copyright infringement.
Darknets are likely to be particularly disfavored by the copyright industry. Detecting and combatting copyright infringement on well-managed darknets is essentially impossible. Hollywood can't easily go after direct infringers on darknets, so they certainly have quite an incentive to launch INDUCE Act lawsuits against the developers and maintainers of darknets.
And there would be a pretty good case to make. After all, who initially developed WASTE? Why, it was that notorious inducer of infringements himself, Justin Frankel, developer of the initial Gnutella protocol. "WASTE" itself is an acronym that stands for "We Await Silent Tristero's Empire" and is a reference to a subversive, underground mail system in Thomas Pynchon's novel, The Crying of Lot 49. And, of course, there are plenty of articles detailing WASTE's use for copyright infringement (THE ROAD LESS TRAVELED: File Swappers Find Security in Waste; The Invisible Inner Circle: Forget Gnutella. Frankel's Waste is where it's at; and, The Underground Internet).
Darknets are wonderful tools with plenty of legitimate (and necessary) uses. However, that won't keep their developers from getting sued and put out of business if the INDUCE Act passes.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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Posted by Ernest Miller
During the past couple of weeks, the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) has picked up several more co-sponsors, bringing the current total to nine. Apparently, the copyright industries are doing an excellent bipartisan lobbying job. I've yet to hear of a single senator who opposes or even has serious questions about the bill. The three new co-sponsors are: Sigh.
UPDATE 20 JUL 2004 - 0550 PT
Missed one more: - Sen. Paul Sarbanes (D-MD) [Currently, Hollywood does not appear to be a significant contributor to Sarbane's campaign funds]
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.
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July 20, 2004
Posted by Ernest Miller
Last week it was announced that there would be hearings held by the Senate Judiciary Committee on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act), however, no witness list had been provided (Hearings to be Held on INDUCE Act (IICA)). The witness list is now available and the name of the hearing has been changed ("Protecting Innovation and Art while Preventing Piracy"). The witnesses are: - Marybeth Peters, Register of Copyrights, US Copyright Office (She's never seen an extension of copyright she didn't like)
- Gary Shapiro, President and CEO, Consumer Electronics Association
- Robert W. Holleyman, II, President and CEO, Business Software Association (his testimony ought to be interesting)
- Andrew Greenberg, Vice-Chairman, Intellectual Property Committee, IEEE
- Kevin McGuiness, Executive Director and General Counsel, NetCoalition
- Mitch Bainwol, Chairman and CEO, Recording Industry Association of America
Looks like a pretty good panel to me, but I wonder where they plan on going with it given the name change. I suspect that they intend to burden shift the search for a solution onto pro-innovation forces and have the INDUCE Act as a default, but we shall see ( On the Burden of Persuasion for the INDUCE Act (IICA)).
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.
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives.
Today on Hatch's Hit List: Worth1000 Photoshop Contests
Tip 'o the hat to Jason Schultz
Worth1000 is "a daily image manipulation contest site." Basically, it is a website for competitive photoshopping. Everyday, there are new photoshopping contests such as Unsung Vending Machines 2 and If Dogs Ruled. The contest entries are frequently hilarious and often brilliant work. Additionally, W1K is not only a contest site, but a community where people share their knowledge and love of this new art form. Too bad that the INDUCE Act will make the site lawsuit-bait.
The briefest search through the site's many, many image galleries will quickly turn up dozens of derivative work copyright infringements. Sure, some of the works might have a fair use defense, but as Larry Lessig has pointed out, fair use is the right to hire a lawyer. And, even if you could afford a lawyer, many of the works would still be infringing.
The website does have a copyright disclaimer and 17 USC 512-like notice and takedown procedure, but warnings will carry very little weight under the INDUCE Act else common P2P systems would not be affected by the law (which is the ostensible goal). In this case having some warnings might be worse than having no warnings at all, since the warnings get copyright law wrong (Worth1000 Guidelines): There are some exceptions where copyrighted images can be used legally, such as for parody purposes and even then, only in such a way that the image will not compete with the present or future commercial interests of the original image or derivative works of the image. If you change an image substantially enough that it will not in any way be confused with, nor financially compete with the original (and it's derivatives) it may fall into the category of fair use. I'm not sure where to begin with how wrong this is. For example, just because you wouldn't confuse a derivative work with the original doesn't mean it isn't infringement. Clearly, W1K is misinforming its community in order to encourage infringement.
There is also a funny thing about the notice and takedown procedures in this case: even if W1K is not liable for hosting the images under section 512, they could still be found liable for inducing the creation of a derivative work. Whether W1K hosted the images or not, they induced the creation of derivative works.
W1K had to have known that they induce copyright infringement on a daily basis. A "reasonable person" would know that when you have a contest called Pop Culture Monsters 4, you're bound to get entries that are derivative works. It was nice knowing you W1K.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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Posted by Ernest Miller
Okay, so there is this website that is collecting and organizing hard-to-find documents about the Bush Administration (Outragedmoderates.org). Great! Power to the people! Democracy in action!
Outragedmoderates.org makes the files available via P2P networks such as KaZaA and others and WIRED does up a big story on them (Downloading for Democracy): While legislators in Washington work to outlaw peer-to-peer networks, one website is turning the peer-to-peer technology back on Washington to expose its inner, secretive workings. Huh? This makes sense, why? Sure, you can use P2P networks to distribute these files, but why would you want to? As a matter of fact, this is a pretty asinine way to do it. From the instructions ( Download for Democracy): On the KaZaa and Soulseek networks, you can search for the "outragedmoderates.org" username, and then use the "browse user files" option to find the documents. All three networks allow searching by document; go to the Government Document Library for a list of the documents currently available, which provides their exact filenames. Note that outragedmoderates.org only guarantee the authenticity of documents downloaded from the usernames given above. [colors, emphasis, links in original] Let me get this straight. I go to the outragedmoderates.org website, go to the "Government Document Library," look up the documents I want, ignore the fact that I could download them from the website, start a P2P program, enter a search for the document name and/or outragedmoderates.org user name, and then download the documents, remembering that if I don't download the documents from outragedmoderates.org I might be getting inauthentic files. Gee, how could anyone ever think that P2P isn't useful? As WIRED says, Anderson [publisher of the site] didn't intend to make a statement by using P2P networks, but his use of the networks to deliver the data counters the usual government and entertainment industry arguments that P2P networks have no value, apart from stealing copyright works, and therefore should be outlawed. Yeah. It sure counters those arguments. Why, HTTP would never be suitable for serving static documents from an existing website. And the distributed nature of a P2P network really makes sense when you're basically telling people to download the documents from a single, centralized provider.
There are legitimate uses and needs for P2P. Particular functions where it makes sense. This isn't one of them.
Bonus: Outragedmoderates.org, helpfully provides some links to providers of P2P software. Unfortunately, the first link the site provides isn't to a spyware-free version of P2P software. Thanks a lot.
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Posted by Ernest Miller
Marc Canter says that FCC Chairmam Michael Powell's blogging "is not a fluke folks. This guy is for real." [empahsis in original] (Michael Powell keeps on blogging). I hate to disagree with Marc, but all Powell's latest post demonstrates is that a bureaucrat can dodge the tough questions in an informal, "folksy" manner (My Trip to California). For example, take the start and finish of Powell's latest post: "2Fellow Bloggers ... Thanks, Michael P." Geez, are we like buds now or what?
Powell actually spends a bit more than half his post doing the bureaucrat shuffle about indecency. To save you the trouble of reading it, Powell simply gives his generic defense of the issue. In other words, "Congressional law ... blah blah blah ... Supreme Court upheld ... blah blah blah ... importance of First Amendment ... blah blah blah ... complaint driven .... blah blah blah ... context ... blah blah blah ... tough decisions ... blah blah blah ... bipartisan ... blah blah blah." He said absolutely nothing here that was new or even interesting. I don't expect him to discuss Howard Stern and Oprah, which is a pending matter. However, there are a number of tough questions he can't or won't answer (FCC Chairman Powell on Indecency at Always On).
"Michael P." talks about indecency, but why doesn't he explain why the FCC revived the profane language doctrine and has not ruled out punishing people for blasphemy? That would be a real answer.
via Bag and Baggage
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Posted by Ernest Miller
Hilarious (parody?) of the total surveillance future at the ACLU (ACLU Pizza [Flash]). Cash and take out only for me from now on.
via MetaFilter
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July 19, 2004
Posted by Ernest Miller
Last week, I wrote about the difficulties Eric Eldred faced when trying to give away copies of Henry David Thoreau's Walden at Walden Pond on the 150th anniversary of the publishing of the classic (On Walden). Today, the Boston Globe has put Eldred's story on the front page of their Metro section (Fighting to be free): Denise Morrissey, the park supervisor who told Eldred he had to leave, said her agency discourages competition from outsiders who could take away business from the two concessions that pay for a spot on the reservation: an ice cream truck and the gift shop run by the Thoreau Society.
"If you're going to give away books for free," she said, "it might take away business" from the shop.
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Posted by Ernest Miller
James Grimmelmann of LawMeme does some genetic splicing between legal philosoper Lon Fuller's The Morality of Law and Larry Lessig's Code (The Morality of Software): Fuller states eight conditions that laws must satisfy to be worthy of being called "law;" I'll follow that organization in comparing software and law. Following Lessig, I'll only be thinking about software in its ability directly to control behavior: I'm online, and I try to do something, and either the software goes ahead and does it or doesn't do it, thereby "prohibiting" me from something I'd otherwise have chosen. Good stuff.
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Posted by Ernest Miller
It has barely been a month since the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) came out of nowhere to threaten technological innovation. Now, some of the brief history of the bill is coming to light.
Dan Gillmor has published an email from Gary Shapiro, president and CEO of the Consumer Electronics Association, detailing how the bill's supporters tried to sneak through the Senate (Difference of Opinion): The RIAA tried a sneak attack. Their new head Bainwold and others convinced Hatch, Leahy and the Senate leadership to support this legislation -- I think they told them the high tech community supported it as the Business Software Alliance supported the bill. All of this happened before any tech company had even seen it.
I think I was the first to see it when I met with Hatch's guy on June 15. He showed it to me and told me it would be introduced the next day and voted on in the Senate in days. Immediately with him there reading the draft I told him we would oppose it. I said I was shocked the BSA could support it. He then delayed the bill a few days and it was only introduced the third week in June. The whole email is highly recommended. One point to highlight is that the missive has even more information about the shameful behavior of the Business Software Alliance, which "had not polled their members" about the legislation.
In light of the BSA's support of the legislation, the New York Times questions the BSA's latest software "piracy" study (Software Group Enters Fray Over Proposed Piracy Law). The article also addresses many of the concerns regarding the INDUCE Act: "I think the senators were totally misled about what this legislation is about," Lawrence Lessig, a professor at Stanford Law School, said. "This would not be a tiny, targeted change. It would be a massive change that would totally sidestep the Betamax ruling."
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.
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives.
Today on Hatch's Hit List: VoIP
Voice over IP is probably one of the most interesting developing technologies, and perhaps one of the most revolutionary ones. It is fascinating for many reasons. Even as Congress, the FCC, various state utility commissions, the courts and others battle over how VoIP is to be regulated, if at all, entrepreneurs and hackers are developing new ways of utilizing VoIP. These innovators are changing the ways we can interact with the humble telephone and the results will likely reverberate in our society in ways we can hardly imagine.
One trivial example: I've been using Vonage for nearly two years now. One of the nice things it does is provide me an email notification of voicemail. One option for that email notification is that I can have the actual recording sent to my email: Voicemail Attachments With Email can be a very powerful tool. When you activate Voicemail Attachments With Email, we copy your new phone messages as .wav files. Then we attach these files to your email notification messages. Turn this feature on and you can play back your messages through your PC without even accessing your voicemail system. You also forward your voice messages to anyone else via email or save them to your hard drive. It's another great way that Vonage puts you in control. Indeed. Such capabilities will soon become common place. There are even interesting variations. Some have reported that Vonage has dropped voice messages into their voicemail box without actually placing a call. This could be very useful. Why not have a "voicemail" list that would allow someone to send one message to multiple phone numbers? Or why have to call, when you can send an audio file straight to someone's voicemail, which they might then download instead of listen to via phone, or both.
Which, of course, brings us back to the INDUCE Act. Inevitably, some of these developing and interesting uses for VoIP are going to lead to copyright infringement. Why is the attached .wav file necessarily a phone call? VoIP is so cheap in many cases, why not use it as a streaming radio station (which might merely be a form of conference call)? All these interesting and innovative uses will likely make our telephones even more useful than before. However, how much innovation will Hollywood permit in the development of unique VoIP applications if the INDUCE Act passes?
VoIP is already facing numerous regulatory challenges. Do we really want to add Hollywood to the regulatory hurdles VoIP must surmount?
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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July 18, 2004
Posted by Ernest Miller
There've been two significant news stories regarding the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) in the past couple of days.
WIRED interviews the principles of growing New York-based P2P company eDonkey (P2P Company Not Going Anywhere). Although the INDUCE Act would certainly affect his business, Sam Yagan, president of the company, believes that legislation won't stop P2P: "I don't know of a single precedent in which legislation or litigation stopped technological development," said Yagan. "Let's say, though, that the labels shut down the major peer-to-peer networks. Would P2P go away? Not at all. The networks would continue to operate even if the companies themselves go out of business. It's like if you put Xerox out of business, its copy machines will still work.
"Then what will happen is networks will spring up in jurisdictions that don't recognize U.S. laws or judgments." The Register's Andrew Orlowski takes the RIAA's letter to the Senate supporting the IICA to task ( RIAA praises 'magnificent' P2P): The industry's logic is based on it being a hit machine, then subsidizing other acts on this using these proceeds. But a critic might point out that if the fortune generated by hits is down so significantly - and sales are holding up - then what Bainwol claims to be his industry's basic business model is flawed. Either that, or else he doesn't know how the business he represents really works, which is unlikely. Or that he knows and isn't telling the truth. Ouch.
Additional RIAA Letter Coverage:
The actual RIAA letter: Letter to Senators from Mitch Bainwol, Re: INDUCE Act
The Abridged RIAA Letter on the INDUCE Act (IICA)
The Excessively Annotated RIAA Letter on the INDUCE Act (IICA)
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.
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Posted by Ernest Miller
Digital Media Consultant Susan Mernit has put together a list of things she would like to see news organizations do (2004 Election coverage--What I'd like to see). The list offers up some very interesting improvements, many of which I think would be good ideas, but might be more difficult to implement than is readily considered. I also believe that Google (or a similar company) has quite an opportunity to shake up news media. Read on...
...continue reading.
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July 17, 2004
Posted by Ernest Miller
Denise Howell, of Bag and Baggage fame, went to the Always On Conference in Stanford and blogged it. Her latest post is on the bloggers vs. big media panel (AlwaysOn: Bloggers vs. "Big" Media Competition).
"Bloggers vs. Big Media." Sigh. Look, when are the people who put together these panels going to figure out that it is "Bloggers & Big Media?" They're not in competition, they're symbiotic. But that is not what I want to talk about right now. I'll leave that discussion to the most excellent Mary Hodder, who wasn't on the panel but should have been (It's a Form of Social Media: Blogging AND Journalism). And while I'm mentioning the divine Miss H, a recent article in WIRED has gotten a lot of attention recently, as it discusses why the NY Times' policy of putting content behind a subscription wall after seven days has rendered the venerable Times all but invisible to Google (Searching for The New York Times). Miss Hodder was discussing this months ago and with more insight (Why News and Technical DRM Don't Mix: Linking and Linking Expression are Key). But I digress.
Why don't we take a look at the future of journalism and blogging a few years down the road? Where will the next generation of journalists be learning their craft and filing their first stories? I think an awful lot of them will learn through the process of blogging. Often, the people who become journalists do so because they like to learn about new things, they like to find stories, and they like to write and pass those stories on. If journalism is in their blood at a young age, they're going to start blogging long before they set foot in a J-School. School newspapers are passé, school blogs are cool.
Heck, I expect that in a couple of years or so those who hire novice journalists are going to want to see what sort of blogging experience they have. Nothing says, "I'm a good, disciplined writer" better than several years of good, disciplined writing, such as on a blog.
Of course, this means that these novice journalists are going to enter the profession with habits, both good and bad, as well as certain expectations. Tyro journalists who are used to blogging are going to expect to be able to link. They're going to expect trackbacks and conversations. They're not going to want to state the same facts that everyone else has stated ad nauseum, but only those elements that they can add to the conversation. Because of this, I believe that ultimately, bloggers will change the profession of big media journalism from within to work more cooperatively with blogging.
So, one of the reasons we shouldn't be talking about bloggers vs. journalism is because, eventually, some of the bloggers of today will be the journalists of tomorrow.
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Posted by Ernest Miller
The original plan was to hurry the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) through Congress without hearings and before anyone paid any attention. As late as ten days ago, a spokesperson for the bill's leading sponsor, Sen. Orrin Hatch (R-UT), said that the Senator would only "schedule a meeting if the chairman [Hatch, chrm of the Senate Judiciary Committee] thinks it's necessary" (Opposition to INDUCE Act (IICA) Getting Mainstream Press - Bill Still Moving Through Senate Quickly). Apparently Sen. Hatch now thinks a meeting is necessary. Perhaps the request of numerous tech companies, civil liberties groups and consumer organizations convinced him (Many Organizations Sign on to Letter Requesting INDUCE Act Hearings).
In any case, hearings have been scheduled on IICA (aka INDUCE Act) for next Thursday, July 22 ("An Examination of S. 2560, The Inducing Infringement of Copyrights Act of 2004 "): July 15, 2004
NOTICE OF HEARING
The Senate Committee on the Judiciary will hold a hearing on Thursday, July 22, 2004, at 2:00 p.m. in Room 226 of the Senate Dirksen Office Building on "An Examination of S. 2560, the Inducing Infringement of Copyrights Act of 2004."
Chairman Hatch will preside.
By order of the Chairman Note that there is no witness list yet. Updates with details when they become known.
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.
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July 16, 2004
Posted by Ernest Miller
...continue reading.
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+ TrackBacks (0) | Category: Freedom of Expression | Games
Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and Hatch's Hit List Archives.
Today on Hatch's Hit List: Legos
It's Friday. So, I thought Hatch's Hit List could be a little more lighthearted. And what is more lighthearted than showing how the INDUCE Act could be used to sue a maker of children's toys?
Legos are a very cool, educational toy. Who doesn't like legos? They rock. And they're not just for kids; plenty of adults use legos to do some pretty amazing things, which Lego sometimes explicitly and sometimes implicitly supports. Unfortunately, many of these amazing things violate copyright, which makes the Lego company an inducer of copyright infringement.
Take for example Lego Mosaics, which would be derivative works of the original image. Lego will let you upload a picture file and then, using their Brick-o-Lizer, let you create a custom Lego mosaic from the photo. The next step is for Lego to ship you the custom kit, after you pay them $29.95 (aka commercial viablity). And this is what Lego has to say about the photos: You can upload any .jpg or .gif file into the Brick-o-Lizer. You can use a scanner or a digital camera to get a picture into your computer to use with the Brick-o-Lizer..." [emphasis added] Sure, there is a copyright disclaimer you have to "agree" to before you can use the Brick- o-Lizer but, please. The site is clearly geared towards children. Like kids understand lawyerese. This is just one of those phony warnings like the P2P companies use.
Even worse are the sample photos the Brick-o-Lizer lets you play with. They are all professional photos that no child could take. Clearly, the examples are telling kids that it is okay to use professional photos (aka copyrighted ones) with the Brick-o-Lizer.
And it is not only the Lego company; there are free versions of the Brick-o-Lizer available on the internet, such the Lego Users Group Network's Mosaic Maker. Any copyright warnings there? Nooooo....
And what about all those unauthorized derivative work Lego movies on the net at places like BrickFilms? What inspired induced those do you think? Might they have been inspired induced by Lego Comics and Movies?
Yeah, the Lego company is going to have a lot to answer for if the INDUCE Act becomes law.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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Posted by Ernest Miller
During the original Napster's heyday, Bertlesmann, through a venture capital firm (Hummer Winblad), invested in the upstart filesharing company. After the original Napster was shut down by legal maneuvers, two record companies (UMG and Capital) decided to sue Bertlesmann (which owns a major record label itself: BMG) and Hummer Winblad in order to hold the two investors liable for supporting Napster and recoup some deep pocket damages. C|Net News reports that the lawsuit has survived a motion to dismiss (Case against Napster backers gets green light). Read the 14-page decision: UMG Recordings v. Bertlesmann AG [PDF].
The defendants had claimed that the lawsuit was one for "tertiary" copyright infringement, that is, contributory infringement of a contributory infringement (or inducing an inducement). "Tertiary" infringement is generally not accepted as a proper cause of action. Why? Because liability becomes too far removed from the actual criminal activity. Causality branches and diffuses. So, generally, there has to be something more than "but for" causality in order to hold someone liable.
This principle still stands. In UMG v. Bertlesmann the judge has held that the plaintiffs have made more than conclusory allegations that Bertlesmann and Hummer Winblad actually controlled the original Napster and directed operations, which would make then contributory infringers, not tertiary ones. This decision is a somewhat troubling. Personally, I'm not so sure that the allegations aren't conclusory, but the judge has ruled that the case can move at least to summary judgement motions.
The INDUCE Act Part
Which brings me to the concept of tertiary liability under the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act). Sometimes things are so obvious that they go without saying. However, as Derek Slater has pointed out to me, sometimes those are the most important points to talk about (Don't Innovate, Don't Even Invest).
One of the most devastatingly bad things that the INDUCE Act does is that it blows up the relatively clear lines of contributory and vicarious copyright infringment to extend liability into an ever more diffuse cloud of causality. As the EFF's mock INDUCE Act complaint shows, not only would the INDUCE Act permit lawsuits against Apple for the iPod, but plaintiffs could go after Toshiba for supplying Apple with the hard drives used in the device and C|Net for reviewing it (Prelude to a Fake Complaint). If contributory liability is similar to charging the promoter of illegal street races for reckless driving, the INDUCE Act is similar to charging automakers with reckless driving for making fast cars that can be used in street races. Under the INDUCE Act's doctrine of liability, if the Nile were guilty of flooding Cairo, lawsuits could be filed against every tributary.
According to the INDUCE Act, "intent [to induce] may be shown 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." This is an incredibly low standard. Anyone in the vicinity of infringement can get sued and it isn't clear what one can do to remain safe, except be nowhere in the vicinity of infringement. Even worse is that the proposed statute is designed to allow plaintiffs to take their cases all the way through to trial, surviving all attempts at dismissal for even weak cases (and costing the defendants plenty even if they prevail).
The practical consequence of this is to chill innovation to subzero temperatures. Investors, suppliers, and potential business partners (among others) will all be potentially liable under the INDUCE Act. They'll all have to ask themselves whether doing business with a company that Hollywood might not like is worth the risk of being hit with a meritless lawsuit. The likely result? No one is going to go anywhere near innovative new internet and consumer electronics companies unless they already have Hollywood's blessing.
If innovation is Superman, the INDUCE Act is green kryptonite.
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.
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July 15, 2004
Posted by Ernest Miller
Press coverage of the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) continues to be light. However, the San Jose Mercury News (annoying reg. req.) published an editorial that is sharply critical of the legislation (Piracy bill threatens Valley firms): The Betamax decision has made possible an explosion of inventions, from MP3 players to CD burners. By undermining the Betamax decision, the Hatch bill could threaten current and future technologies. That's too much collateral damage in pursuit of Kazaa. That's a very important point actually. The supporters of the INDUCE Act are going to strive to make passing the bill the default. They are going to make claims that "something has to be done" and if the opposition doesn't want this bill, then the burden is on them to provide an alternative. We cannot let that happen.
The legislation the copyright industry proposes is rash, precipitous and reckless. It risks great collateral damage for illusory benefits. We should not allow ourselves to be goaded into actions we will only regret later by the mere desire "to do something." Often, the best thing that one can do is to do nothing. The burden must be on the supporters of the INDUCE Act to propose a bill whose harmful effects do not outweigh the benefits.
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the INDUCE Act Archives.
Today on Hatch's Hit List: Automatic Online Translators with a tip o' the virtual hat to Matt Perkins.
Translations are derivative works. The making of derivative works is one of the exclusive rights in copyright (17 USC 106(2), to be precise). Therefore, making unauthorized translations is an infringement of copyright. Under the INDUCE Act, if you intentionally induce someone to infringe copyright, you are liable.
Ever do a search on Google and some of the results weren't in English? Notice that little "Translate this Page" next to the link? Yeah, that's an inducement. Google is practically begging you to create a derivative work. They do everything for you (aka aid and abet) except click the "Translate this" link. And let us not forget the ease of use of Altavista's Babelfish Translation.
It's crazy, but not only are there no copyright warnings on the translation home pages, but there aren't any copyright warnings on either Google's Translation FAQ or Babelfish's Help Page. But what can you expect from such blatant copyright scofflaws? This is clearly an open and shut INDUCE case. And let us not forget that both Google and Altavista have deep pockets to pay off a juicy lawsuit. (Ooops, I wasn't supposed to write that out loud.)
Seriously, this is actually a very good example of why the INDUCE Act is bad law.
Under existing copyright law doctrine, automatic online translators like Google and Babelfish have some very good defenses. For example, although one could make a prima facie case that both are guilty of direct infringement, the RTC v. Netcom decision would likely protect both. In Netcom, a BBS operator was held not liable for direct infringement basically because their system of uploading files was automatic and directed by third parties. A similar argument would protect automatic online translators as well, I think.
Secondary liability (contributory and vicarious) would also not be an issue here. There is no real way for Google or Babelfish to control how their system is used to translate webpages and text without simply shutting them down, and there is clear evidence of substantial non-infringing uses.
However, the INDUCE Act changes all this. The evidence is blatantly obvious that both Google and Babelfish encourage the creation of translations (aka derivative works). They had to have known that they were encouraging copyright infringement. I don't see how a "reasonable man" could believe otherwise.
I know that I'll be keeping copies of my referrer logs. Sto parlandovi, lettori in Italia!
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+ TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act
Posted by Ernest Miller
The Parents Television Council (motto: "Because our children are watching") is the main organization leading the way in sending indecency complaints to the FCC. They are one of the most significant reasons that television indecency complaints have increased from 111 in 2000 to 545,000 in the first quarter of 2004. Just last week, they launched a new website (Cleanup.TV) to facilitate even more FCC indecency complaints (PTC Launches New Website to Facilitate Filing and Tracking FCC Indecency Complaints).
Thus, you would think that Hollywood movie studios (many of which are heavily involved in broadcast as well) would be more than reluctant to increase the visibility and power of the PTC. You'd be wrong.
According to a report in the Hollywood Reporter on Monday, movie studios are accepting the PTC Seal of Approval for their movies and using it in their advertising (PTC tries softer approach in film foray): "When marketing a family film, it is always helpful to have the support of an organization such as the Parents Television Council," said a spokeswoman for New Line Cinema, which used the PTC seal in advertisements for 2003's "Secondhand Lions." "The seal of approval helps audiences identify family-friendly product and also lends credibility to a film targeted to that audience."
A Miramax spokeswoman said the PTC seal of approval helped the studio position its recent feature "Ella Enchanted" as a "film that offers quality entertainment for the entire family." Warner Bros. Pictures used the seal in print ads for its Mary-Kate and Ashley Olsen movie "New York Minute," and Universal Pictures is employing it for "Two Brothers." Why is this a bad idea? Indeed, the push to apply the PTC seal of approval to films could be seen as a marketing initiative for the PTC itself. Having the logo prominently featured in newspaper ads may in time raise the group's profile beyond the narrow world of media watchdog organizations. Screening events could also provide an incentive for new members to join the PTC, but Mahaney denied that the PTC's outreach to filmdom had anything to do with burnishing the PTC's own image. Look, I don't have a problem with independent rating organizations. I think it is fine that groups will make the effort to rate content for their audiences. It doesn't bother me that they might promote some content and denigrate other content. That is their call. This is a free country. However, the PTC goes well beyond that. They use their organizational skills to encourage the government to censor content. They send tens of thousands of complaints to the FCC (which the FCC foolishly take as representative of the country). They are driving a truck through the First Amendment loophole the Supreme Court created in Pacifica.
That's bad enough. Now, in order to sell a few more tickets, movie studios are more than willing to sell out their broadcast brethren. Smart, Hollywood, real smart.
Bonus: Check out this PTC editorial cartoon that depicts the "public" and "government" pulling a rope wrapped around the throat of "Hollywood" (Weekly Editorial Media Cartoon: Feb. 10, 2004). Why does the image of Hollywood selling the rope to the PTC come to mind? Why does the phrase "useful idiots" seem appropriate?
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Posted by Ernest Miller
This week while blogging, I was frustrated a bit by my inability to get ahold of some primary documents easily. In Outfoxed Rope-a-Dope Begins? news reports referred to a statement that Fox News had distributed at a press conference for the new documentary OutFOXed. One report paraphrased parts of the statement and another had some quotes.
In The Excessively Annotated RIAA Letter on the INDUCE Act (IICA), I had some difficulty getting a copy of a letter that the RIAA had sent to all 100 senators. I called the RIAA, of course, and they promised that they would either get me a copy or call me to tell me I couldn't have one. Of course, they did neither. Unlike the coalition opposing the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act), which made their letter to the Senators public (Letter to Senator Hatch, Re: S. 2560, the "Inducing Infringement of Copyrights Act of 2004"), the RIAA doesn't want the public to know the arguments they are making to our representatives (Letter to Senators from Mitch Bainwol, Re: INDUCE Act).
Nevertheless, the letter was reported by some members of the press. Unfortunately, the reports were, of necessity, paraphrases and quotes from the 5-page missive. But that is what frustrates me. I couldn't read the whole letter myself. Ultimately, after sending out numerous feelers, I was able to get ahold of a copy. But why was it so difficult? Why don't news organizations post these primary documents on their website?
In the print realm, of course you usually don't have room to put every document into the publication. In any case, it is a reporters job to take information, put it in context, highlight it, get reactions, do reporting. That's usually all most people really want. They have neither the desire nor the time to read the primary documents. But not always. For most stories there is a small core of readers who want more information, who want to read the primary documents and get more from the story.
So why don't news organizations post these documents on their websites, where file size is not really an issue? Why can't you have a story about the RIAA's letter and a link to the letter if you care to read it yourself? Why shouldn't we be able to read Fox News' statement for ourselves? Why should publications passively (tacitly?) acquiesce in the RIAA's desire to obscure its communications with our representatives?
Dan Gillmor is very smart when it comes to these things. As Denise Howell, who is blogging the Always On Conference, paraphrases Gillmor (AlwaysOn: Joe Trippi And Dan Gillmor): Dan says one thing you learn if you cover technology in Silicon Valley is that other people know way more than you do, and it's to your and your readers' benefit to capture and disseminate that knowledge. Journalism is really moving from this lecture mode of the last few decades to something closer to a conversation; a seminar or something like it. Indeed. And part of this has to be opening up the documents that a reporter builds a story from. Disseminate the documents, don't hide them.
Ok. Rant over.
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Posted by Ernest Miller
Denise Howell, of Bag and Baggage fame, is at the Always On Conference in Stanford and blogging reports, including a panel chat with FCC Chairman Michael Powell (Chat With Michael Powell). C|Net News also has a report (Powell calls for legislative rethink). The chat covered a wide variety of topics, but I'm going to concentrate on the one I've been following most closely recently: the FCC's indecency crackdown.
Once again, in defending the FCC's indecency regulation, Powell retreated into his coverup position that he is only enforcing a law Congress passed and the Supreme Court has said was constitutional. This is a non-response to what the FCC has been up to recently in the indecency arena.
Item number one is why did the FCC revive the profane language doctrine (FCC Revives Notion of the Profane)? The FCC had never enforced the profane langugage doctrine before this year. Why, suddenly, did the FCC decide to revive a "profane language" test from a single federal circuit decision written in 1972? That's not regrettable enforcement. That's an aggressive attack on freedom of expression. Since then, the FCC has inconsistently cited the profane language doctrine, meaning it will remain as vague and dangerous to free speech as ever (Where's the Profanity? and FCC to Require Broadcasters to Retain Copies of Broadcasts for 60-90 Days).
Item number two is Powell's continued mantra that "The notion that the first amendment changes when you change channels is odd. And I'm troubled that it's more than odd, it's dangerous." Well, yes, it is an odd and dangerous notion. But note what Powell does not do. Powell does not say which side he comes down on. Should broadcast be free of indecency regulation as cable is, or should cable be subject to the same indecency regulation that broadcast is? In the context of defending indecency regulation of broadcast, Powell is implicitly calling for indecency regulation of cable. That is what the true danger is.
Item number three is Powell's claim that indecency regulation is subjective and the views are different between Manhattan, NY and Butte, Montana. Unfortunately, the FCC has decided upon a national standard for indecency. They could have adopted a local standard for indecency, but they chose to go with a national standard. Perhaps, someone could have asked Powell if he preferred a lowest common denominator or highest common denominator standard for free speech? Should we have the indecency regulations preferred by New York or Utah?
Item number four is Powell's arguments that indecency regulation is determined by the number of complaints the FCC receives. Isn't Powell just a little concerned about this process? Should prosecutors decide what crimes to prosecute based on public complaints, or should the DA's office use their own discretion to decide? Yes, there have been an increasing number of complaints, but is that because the content of television has changed overnight (complaints skyrocketing in a single year) or because of an organized campaign by groups like the Parents Television Council? Doesn't Powell think we should be just a little skeptical when complaints have jumped from 111 in all of 2000 to 545,000 in the first quarter of 2004?
When will Powell have to answer any of the tough questions?
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July 14, 2004
Posted by Ernest Miller
...continue reading.
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+ TrackBacks (0) | Category: INDUCE Act | Oddities
Posted by Ernest Miller
...continue reading.
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the INDUCE Act Archives.
Today on Hatch's Hit List: Arcade Emulators
Some of the first examples I've used for Hatch's Hit List may have seemed a little obscure or out of the mainstream. Well, today I offer an obvious example of something certain to draw lawsuit wrath: the Multiple Arcade Machine Emulator (MAME).
For those unfamiliar with MAME (and you should be ashamed of yourselves) the MAME FAQ has this to say: MAME stands for Multiple Arcade Machine Emulator. When used in conjunction with an arcade game's data files (ROMs), MAME will more or less faithfully reproduce that game on a PC. MAME can currently emulate over 2600 unique (and over 4600 in total) classic arcade video games from the three decades of video games - '70s, '80s and '90s, and some from the current millennium.
The ROM images that MAME utilizes are "dumped" from arcade games' original circuit-board ROM chips. MAME becomes the "hardware" for the games, taking the place of their original CPUs and support chips. Therefore, these games are NOT simulations, but the actual, original games that appeared in arcades. You see, that is the tricky thing about MAME. The emulator is separate from the ROMS (which are copyrighted). Let's go back to the FAQ: Emulating another platform, in itself, is NOT illegal. It is NOT illegal to have MAME on your computer, on your website, or to give it to friends.
ROM images are a different matter. Many ROM sites have been politely contacted by ROM copyright-owners and asked to take images offline. At the time of this writing, however, no site has been LEGALLY shut down, or prosecuted. [bold in original] Sneaky, sneaky. The FAQ even goes on to say that: "Distribution of MAME on the same physical medium as illegal copies of ROM images is strictly forbidden. You are not allowed to distribute MAME in any form if you sell, advertise, or publicize illegal CD-ROMs or other media containing ROM images. This restriction applies even if you don't make money, directly or indirectly, from those activities. You are allowed to make ROMs and MAME available for download on the same website, but only if you warn users about the ROMs's copyright status, and make it clear that users must not download ROMs unless they are legally entitled to do so." [italics in original] Thus, MAME is perfectly legal under current copyright secondary liability doctrine.
But, come on, we all know that MAME is really about pirating Arcade games. Don't take my word for it, here's an admission from the videogame blog Joystiq (Emulator scene is our guilty pleasure): It’s with a great amount of shame that we must admit that the emulator scene is swiftly becoming a guilty pleasure. Just like the music downloads we’ve all enjoyed once, twice or thrice, the old games of yesteryear can find new life on your PC. The rules of the emulator community dictate that you must own a copy of the game before you can download its emulation, but we all know that doesn’t happen. Where the hell would I put the full Star Wars arcade game? I live in a 900 square foot apartment! How dare they demand such a thing from me! As punishment I shall now download Donkey Kong! [emphasis added] Seriously. Let's compare how many copies of MAME have been downloaded vs. the estimated number of actual arcade games out there. Anyone can see that MAME intends people to download ROMs no matter what their "disclaimer" says. Heck, if a disclaimer was all you needed to avoid liability, the INDUCE Act wouldn't be worth the paper it's written on, would it? And take a look at the FAQ again about getting ROMS: The illegal option is to search the net with Google, Altavista, Yahoo, Webcrawler or other search engine, for the ROM files. You can also try other methods such as IRC, newsgroups, P2P software etc. Be aware that this is breaking the laws of almost every country. Before you consider doing this, see if the particular arcade games' copyright-owner has the ROMs available (as with Capcom and Atari). That way you will support the companies that support emulation. Inducement, definitely.
And these old games are still worth money. Go into any videogame store and you'll see collections of classics still available. As this article from the Rocky Mountain News shows, millions of dollars are at stake (Retro's the name of the game for a new generation of videophiles).
If the Hatch Act passes, goodbye MAME, it was wonderful knowing you.
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Posted by Ernest Miller
Oh, wait, that isn't the spin they're putting on their organization.
C|Net News brings us news of this new DRM coalition (Tech, Hollywood heavyweights create content coalition). Note that it is the big companies that are pushing this, not the small, innovative companies. Coincidence? I don't think so. Several high-profile technology companies and movie studios are expected to announce Wednesday that they have formed a coalition to ensure that high-definition video and other content cannot be pirated in home networks. The article talks about protecting "content" and movies. However, there is no mention of protecting audio. Hmmm ... why might that be? Whatever happened to SDMI?
Same old story. Piracy will continue. Large corporations will be protected from innovative upstarts. Isn't that how capitalism in the 21st century is supposed to work?
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Posted by Ernest Miller
I've discussed Audible Magic and its filtering technology on "The Importance Of..." before: Audible Magic's Sleight of Hand. Basically, Audible Magic filters content based on an audio fingerprinting service that checks against a database of copyrighted works. Installed in a piece of P2P software, it prevents copyrighted works from being transmitted in the first place, which is what the article above discussed. However, Audible Magic is now attempting to sell its technology to schools and universities. In such cases, Audible Magic's technology will listen in to the data transfers (aka sniff packets) in the network and attempt to terminate those virtual circuits it believes are violating copyright. See, Audible Magic's six-page white paper: Managing Peer-to-Peer Traffic with the CopySense™ Network Appliance [PDF].
EFF has just posted a technical analysis of the CopySense technology and concluded that it would be easy to defeat (Audible Magic — No Silver Bullet for P2P Infringement): Session encryption for file transfers based on ephemeral keys represents a cheap, easily implemented countermeasure that would effectively frustrate Audible Magic's filtering technology. Based on publicly available information, it does not appear that this vulnerability can be easily remedied. Should Audible Magic's technology be widely adopted, it is likely that P2P file-sharing applications would be revised to implement encryption. Accordingly, network administrators will want to ask Audible Magic tough questions before investing in the company's technology, lest the investment be rendered worthless by the next P2P "upgrade." However, EFF's technical paper doesn't address many of the policy issues. When I read their report, however, one policy/legal issue immediately came to mind: An engineering goal of Audible Magic's network appliance is to add no additional latency to the network. Therefore, it cannot be interposed between the client and the server, as it would be in traditional firewall or filtering proxy deployment. The network appliance is installed as a peer to other hosts on a network segment, not as a gateway or bridge. The segment is configured such that the appliance can sniff all traffic going over the link layer fabric. Audible Magic functions like a wiretap. Which leads to the question: (Read on...)
...continue reading.
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Posted by Ernest Miller
Tom's Hardware carries a report of an interview with Bill Gates in a German Newspaper in which Gates apparently said that DVDs would be obsolete in ten years (Bill Gates: DVD player dead within ten years): Gates did not elaborate if the DVD-player will just die or if it will be replaced. In his view, it is "ridiculous" that today we have to carry around music and movies which are stored on "silver storage discs", since they easily could scratched or misplaced. Well, gee, I guess I'll just have to buy all the movies I already bought all over again. Won't Hollywood be happy.
I'm a young guy. Some of the DVDs I own are already five years old. I expect that I should be able to watch those DVDs at least another fifty years from now. The only way that is truly feasible is if I'm permitted to rip the DVDs to another medium and put the DVDs into a nitrogen-filled storage container for preservation. So, don't tell me that making backups of DVDs isn't really necessary or not a permitted fair use, or simply not permitted under the DMCA.
See also, NY Times on DVD DRM.
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Posted by Ernest Miller
Canon has just announced their brand new prosumer digital camcorder, the XL2. Read the press release: Canon's Hotly Anticipated XL2 Three CCD Mini-DV Camcorder Sizzles this Summer. Why is this important? Why am I blogging about it? Very simply, this is yet more evidence of the democratization of content creation. The XL2 would have been a professional rig just a few years ago. Now it is at the top end of the consumer market and the capabilities will inevitably trickle down. Of course, the quality content will need some way to be distributed *cough*broadcatching*cough*.
This is what Gizmodo has to say about the capabilities of the new camcorder (Canon Announces the XL2): With both 16:9 and 4:3 aspect ratios (film-like and TV-like, respectively), variable frame rates (again, to more closely emulate film or TV), interchangeable lens (the same as the XL1S had, including a new 20x optical zoom lens), and more, all wrapped around a 3 CCD system for maximum image, you know, fantasticness. [emphasis in original] And all for an expected market price of about $5,000. High production values content creation is becoming cheap, rapidly. There's just so much to this camera, though, it's sort of hard to explain. Things like the ability to sync up the settings on two different cameras so that the film quality will remain identical make the XL2 the next logical choice for not only budding film-makers and home users who want the best, but increasingly, well, anyone. [emphasis added]
See also, Engadget: Canon’s new XL2 Mini-DV camcorder.
UPDATE
I would be remiss if I didn't point you to HD for Indies, a blog dedicated to "High Definition Video for Independent Filmmakers: A How To Guide for indies on the cheap." For example, check (no permalink available currently) the July 01 posting on "Tight Budget 720p Uncompressed HD Editing System Recommendation." You too can edit 720p uncompressed for $3368.
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July 13, 2004
Posted by Ernest Miller
A little over a week ago, I noted that the broadcast networks were cutting back campaign convention coverage and that the parties were "plead[ing]" for more coverage (Major Broadcast Networks to Decrease Convention Coverage - Author Experiences Schadenfreude). However, while broadcast television cuts back on coverage, internet coverage is going to be 24/7, according to CBS Marketwatch (Web's convention plans top TV Nets): - AOL's broadband subscribers can get live gavel-to-gavel coverage and express opinions on convention issues via online InstaPolls, the unit of Time Warner said.
- ABC-TV's Peter Jennings will anchor convention sessions on abcnewslive.com, the 24/7 streaming news channel operated by the Walt Disney Co. subsidiary, available through America Online and the RealNetworks content subscription service.
- CBS plans free coverage of the sessions on CBSNews.com, plus on-demand clips and news reports. (Viacom, the parent of CBS, is an investor in MarketWatch, the publisher of this report.)
[links omitted]
Hmmm, perhaps politicians should work towards increasing the availability of broadband and broadcatching if they want Americans to actually see the conventions. Nah, pleading with networks for more coverage probably suits them better.
via Scripting News
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Posted by Ernest Miller
A couple of weeks ago I discussed some news regarding an ex-prosecutor who was now testifying as an expert witness on behalf of those accussed of possessing child pornography (Prosecutors Threaten Child Porn Legal Defender). Federal prosecutors were very upset that this lawyer was disrupting their prosecutions. Under existing law, however, the defense the lawyer was providing (that the photos might be photoshopped and not actually of children at all) is perfectly legal and makes a lot of sense.
Later, Prof. Eugene Volokh wondered if the difficulties in prosecuting such cases would cause the Supreme Court to overturn the ruling that protects speech that may appear to be of children, but isn't (Child porn cases thrown out).
My argument has always been that the prosecutors just have to do a better job. As I noted before, they can create databases of authenticated child porn. You only need a handful of images for a successful prosecution, and if the target of the prosecution has a handful of images out of the authenticated database ... game over.
Additionally, the feds have to be a little more sophisticated about authenticating images. After all, digital manipulation of photos isn't limited to pornography alone. Luckily, it appears that other government departments have been taking some proactive steps.
Prof. Hany Farid, a researcher at Dartmouth College is developing algorithms that will help distinguish images that have been manipulated from images that have not (Investigating digital images): Farid and his students have built a statistical model that captures the mathematical regularities inherent in natural images. Because these statistics fundamentally change when images are altered, the model can be used to detect digital tampering. For child pornography prosecutors, this technique could easily be used to show that child porn photos haven't been digitally manipulated. Prosecutors have to work smarter, not simply protest that the Constitution keeps them from doing their job.
via Boing Boing
UPDATE
Bonus: Farid also works on "the digital reconstruction of Ancient Egyptian tombs."
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Posted by Ernest Miller
Last week I had two posts on the question of whether labels might periodically remove copyrighted works from subscription services (Content Subscription Shenanigans and No Guarantees with Content Subscriptions). Access may be granted at one point in time and denied at another. I think this is a legitimate concern that should be addressed by those who promote subscription services. I've also come across further evidence of this possible music industry tactic.
An entertainment lawyer familiar with the issues (anonymous by request) has said that labels sometimes find it in their best interest to keep a good portion of their catalog in an inactive status (not available in physical formats). According to this source, label heads have told him that they don't stop selling certain artists not because they don't believe they can sell the music but, rather, they stop selling some artists' work so that they can clear the market for others. In other words, the strategically deny certain artists so that others can live.
I'm not sure why these tactics wouldn't translate over to the subscription-based world.
UPDATE
Bonus: This is the 500th Post on "The Importance Of..." Go, me!
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Posted by Ernest Miller
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List.
Today on Hatch's Hit List: AM/FM Transmitters
Another of the points that I want to emphasize with Hatch's Hit List is that inducement is not simply limited to the right of reproduction or making copies, but you can get in trouble for inducing actions that violate any of the the exclusive rights in 17 USC 106. Today's technology is an example of a device that can induce public performance.
Ramsey Electronics is a very cool company that provides all sorts of neat electronics equipment and kits for hobbyists and professionals. This isn't gear that you just order and pull out of the box in operating condition, but a lot of the time you're going to have to spend several hours with a soldering iron and testing rig to put it together.
Some of their most popular kits are AM/FM transmitters that you can use at home. Basically, its like running a very low power radio station. Once built, all you have to do is plug it in and insert a stereo jack connected to an audio source. Bingo! You're broadcasting.
Why would you want to? According to the website: Unless you have a whole house sound system installed, you listen to your CD’s etc. in the room where your stereo is. If your house is like mine, sometimes “Mom” wants to watch the TV when you want music. An FM broadcaster connects directly to the line output from your CD player/changer, or to one of the tape-out connections on your receiver. It then broadcasts to any FM radio in your house or yard. Depending on the model you choose and your location, range is 1/4 mile or more under optimum conditions. You know, they actually work pretty good. I built one that my brother uses at his home. It is connected to the stereo out of his PC's soundcard and now he can listen to his MP3s on his shower radio in the morning or from the boombox in his gym/garage. But then again, so can the neighbors, which makes it a public performance.
In fact I must say that Ramsey is encouraging public performance. From the description of the FM10C model (the type my brother has): Here is a great entry-level kit that will teach the basics of FM Broadcast Transmission while finding many uses around the home or dorm room. [Why do you need to broadcast in a dorm room unless you plan to broadcast to the entire dorm?] The FM10C has plenty of power to cover your home, back yard, or city block. [City block ... the copyright lawyers smile.] Our manual goes into great detail outlining all the aspects of antennas, transmitting range and the FCC rules and regulations. [Ah, but the manual doesn't talk about copyright law. Pity that.] You’ll be amazed at the exceptional audio quality of the FM10C...Re-broadcast your favorite music commercial free and with the dynamic range the musician intended, without all that nasty compression the big boys use to make their station sound louder than the competition. ["Favorite music" certainly refers to copyrighted works. This is clearly inducement to public performance.] Betcha Ramsey Electronics isn't thinking about the secondary copyright liability they may be setting themselves up for here.
Of course, this particular example may seem far removed from your home, but perhaps not for long. How much different is WiFi from FM transmitting? Won't everything have WiFi? Wouldn't it be cool if it did? Well, those sponsoring the INDUCE Act probably don't think so.
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Posted by Ernest Miller
The American Museum of the Moving Image in Astoria, New York is an incredible museum and resource. It "is the only institution in the United States dedicated exclusively to the study of film, television, and digital media, and to examining their impact on American culture and society." In addition to the permanent collection of over 100,000 moving image artifacts, it has some fantastic temporary exhibits currently, such as a collection of Tim Burton's drawings from 12 of his movies. There is also an ongoing exhibit on videogames. In fact, admission to the museum provides you three tokens to play classic games including: Asteroids (1979), Frogger (1981), Ms. Pac-Man (1982), Space Invaders (1979), and Tron (1982). Additionally, the online exhibit Computer Space lets you download an emulator and the actual ROM for many of the games so that you can play them on your PC at home. You can download the original games! How cool is that?
Answer: very. Unfortunately, downloading the content from AMMI's latest exhibit is prohibited. Which is really a shame, because while the exhibit is excellent (really, really excellent), making the content freely downloadable could be very useful for our democracy. It's that important. Read on...
...continue reading.
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Posted by Ernest Miller
The Chronicle of Higher Education has an important article about the copyright troubles of an anthology of essays about composer and violist Rebecca Clarke. The Chronicle article is behind a subscription wall, but you can read it on Fair Use Fighter Siva Vaidhyanathan's blog Sivacracy.net (More Copyright vs. Knowledge). I definitely recommend reading the whole thing.
The book at issue, A Rebecca Clarke Reader, is described as "The First Book On This Significant And Popular Composer." The book, according to the Rebecca Clarke Society homepage, considers the life, works, and career of the English composer Rebecca Clarke (1886–1979). Leading scholars present original research on Clarke's songs, chamber music, and contemporary musical milieu, supplemented with new editions of rare writings by Clarke herself. Readers will particularly enjoy transcriptions of four interviews with the composer, where Clarke speaks candidly about her fascinating life. The completed book had reached reviewers before it was hastily withdrawn. Christopher Johnson of the Oxford University Press manages Clarke's estate and has leveled accusations of copyright infringement against the book. Obviously, without access to the book, it isn't clear whether or not the allegations of copyright infringement are true or not. However, we do know that in addition to copyright infringement, the cease and desist letter claims that the book includes "defamatory and libelous statements regarding Mr. Johnson." The Chronicle notes that: One university press's book recalled at the insistence of an employee at another academic press presents an exquisite irony. But the tale of A Rebecca Clarke Reader also illustrates a much larger problem: University presses, affected by shifting interpretations of copyright law, lack the resources to test the provisions of that law. Indeed. Donna Wentworth explains it thus ( University Press Refuses to Be Fair Use Guinea Pig): The problem isn't that Ms. Curtis should be able to use any copyrighted materials she chooses -- she may indeed have violated Mr. Johnson's copyrights. It's that without sufficient funds or friends of the pro bono persuasion, there isn't any contest. The threat of a lawsuit is alone adequate to decide the "case" in favor of the copyright holder. This means that even (or especially) in academic publishing, the bottom line is the bottom line -- because, as the Indiana press music editor puts it, "No one has $11-million to test the gray areas." [link in original] There is much more in the Chronicle's article that is spot on reporting. Again, read the whole thing. However, I will finish with just one more interesting nugget from the article: Despite the press's demand that she return the 200 copies of the Reader in her possession, Ms. Curtis says that she is keeping them. "I have my 200 copies that I give to reporters and to libraries," she wisecracks. "I can start photocopying things and turn it into a PDF and have it circulate samizdat."
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Posted by Ernest Miller
On Sunday the New York Times Magazine published an extensive article on a new documentary that is sharply critical of Fox News and borrows extensively from copyrighted Fox News clips under the fair use doctrine (How to Make a Guerrilla Documentary). My take here: Guerrilla Documentary Copyfighting. Donna Wentworth's here: Fair Use It or Lose It, Part II. Seth Finkelstein's here: "OutFoxed" and Fair-Use Strategy. Larry Lessig, who is working on the documentary's legal defense comments here: outfoxed.
Frankly, I thought it would be foolish for Fox News to take legal action against this film. All they will do is give it more publicity and make it more popular and more viewed than ever before. Without the major publicity that a lawsuit will bring, very few outside those already convinced Fox is biased would see the film. Guess Fox News is more foolish than I thought. Looks like they may be considering a little legal rope-a-dope.
According to the always-on-top-of-things Broadcasting & Cable, Fox News has released a statement on the film (Fox News Bites Back): It’s illegal copyright infringement facilitated by The New York Times and billionaire liberal George Soros. Or so says Fox News Channel in counterattacking new documentary Outfoxed, which slams the cable network for the slant of its programming and blames its financial success for the "Foxification" of other news outlets. Reuters wirestory here: Film Calls Fox News Biased, Channel Cries Foul. Editor & Publisher has more details on the statement ( Fox Fights Back Against 'NY Times' Over Film Story): In a statement handed out at the press conference by an unidentified woman, Fox News declared, "The illegal copyright infringement actions of moveon.org in cooperation with The New York Times, including 'cutting a deal' not to give Fox News Channel adequate time to react, is unprecedented." The Times, it said, in "taking orders from" a George Soros-funded Web site, "corrupts the journalistic process. This is the real story." It described Soros as "a left-wing billionaire currency speculator who funds many liberal efforts." Of course, it would be nice of these news sources to actually make the statement available instead of simply summarizing it.
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July 12, 2004
Posted by Ernest Miller
This may be the last post in my series exploring how the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) will interact with various elements of copyright law and related statutes. From now on I'll be concentrating on specific examples of how the INDUCE Act can be abused: Hatch's Hit List.
I've already discussed how the INDUCE Act will substantially broaden the materials that ISPs must take down in response to a request by copyright holders (The INDUCE Act (IICA) and the Notice and Takedown Provisions of the DMCA). Today, I'm going to look at the other half of those provisions and see whether or not ISPs will still be protected by the safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 512. Read on...
...continue reading.
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Posted by Ernest Miller
James Grimmelmann has an interesting piece on LawMeme concerning a strange side issue involving unauthorized access to one party's copyrighted works through Archive.org by a third party (From the Strange File: Archive.org Hacking in Civil Lawsuit?). There are many issues involved in the case, so read the whole thing, but one issue stuck out for me: HAS is raising a striking issue here: third party standing to sue over violation of various computer security statutes. Take for example the DMCA claim. It presumably runs something like this. Access to our copyrighted works (the web pages) is effectively controlled by the technological measures in place at Archive.org. You circumvented those measures. We were injured as a result (I can see copyright infringement, plus possibly some of the other claims from the underlying lawsuit). Therefore, under sections 1201(a) and 1203(a) of the DMCA, you're liable to us. Ka-pow. [links in original] To my eyes, however, this is not a striking claim with regard to the DMCA because I see it as the basis for the most famous DMCA case of all, the MPAA anti-DeCSS cases: EFF Archives: MPAA DVD Cases.
One issue I always thought wasn't properly raised in the MPAA cases was who really had the right to bring the lawsuit. The movie studios brought the lawsuit because it was their copyrighted works that were being "protected" by CSS copy protection. However, the movie studios have no rights in the CSS system. It is fully controlled by the DVDCCA. Even if the movie studios changed their mind and thought it would be okay to distribute DeCSS, they had no authority to do so. Only the DVDCCA can determine what is authorized with regard to CSS.
The MPAA's argument (if they had been forced to make one) would have had to go something like this: access to the MPAA's copyrighted works (the movies) is effectively controlled by the technological measures owned and controlled by the DVDCCA. DeCSS circumvented those measures, but it is the MPAA that is injured as a result. Thus, the MPAA gets to sue.
I argued at the time that this was incorrect, that the DVDCCA should be the only plaintiff in the suit or, at a minimum, the DVDCCA was a necessary party. Obviously, my arguments never got anywhere.
This issue may seem new because all the other DMCA cases I am aware of have been brought by the companies that actually control the DRM technology used, such as Real v. Streambox, Chamberlain v. Skylink, and Lexmark, to name but a few.
I still think it is important point, however, and it will be interesting to see what a court makes of it. The consequences can be tremendous. As a DRM creator who licenses use of the DRM system, does the DMCA mean that you lose all control over what you permit with regard to your DRM system to those you've licensed it to?
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Posted by Ernest Miller
For those paying attention (i.e., not most of the mainstream press) the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) continues to garner criticism.
Dan Gillmor's weekly column in the San Jose Mercury News is devoted to the INDUCE Act as well as the progress Rep. Rick Boucher's (D-VA) consumer rights bill is making (Glimmer of hope in copyright measures): The tech industry and many other defenders of consumer rights weren't paying close enough attention when the senators, including the majority and minority leaders, introduced the legislation. But when it looked as though the lawmakers were preparing to whisk the bill to the Senate floor without bothering even to hold committee hearings, the threat galvanized opposition.
John Ginn of the Corvallis Gazette-Times is a tad upset with the RIAA (RIAA: You need to get a life!): And as to all the little Oliver Twists out there, I don't want to induce you to anything — stealing music is bad — however, given no other choice, by legislation that continues relentlessly to constrict your options, you need to fight like hell, fight ferociously like spitting-mad cornered wolverines, against corporate bodies like the RIAA who see you as nothing but soulless obeying consumerbots, and would have you defined as such in the law of the land.
Fight them, fight them!
Dr. David P. Reed (co-inventor of the end-to-end argument [PDF]) has some analysis of the INDUCE Act from a technical point of view that is must reading (The INDUCE Act is utterly flawed): I'm not any kind of expert on construction of legislation, but the proposed INDUCE Act (S 2560) seems to be rationalized on the most ignorant and stupid intellectual basis I have ever encountered since the Tennessee legislature attempted to declare by law that pi was equal to 3....It's time that the owners of intellectual property begin to recognize that their proper sphere of influence consists solely of the space around the specific fixed expressions that make up the boundaries of their synthetic rights. The bits are merely zeros and ones, and belong no more to the expression than do the particular particles of ink in a particular book. The systems that transport bits are indeed becoming more efficient, but that efficiency does not and cannot determine which bits are intellectual property and which are not. No bit transport technology is specific to intellectual property alone. Hijacking the bit transport industry by the intellectual property owners is an egregious expansion of their power, and government should be ashamed to even try to do this. [link and emphasis in original]
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Posted by Ernest Miller
The New York Times takes a look at the perennial complaints of book publishers that the first sale doctrine (aka 17 USC 109 aka used books) is harming their business because of the increased efficiencies of Amazon (Online Battle of Low-Cost Books): Is Amazon.com becoming the Napster of the book business?
The analogy may not be far off, say some observers of the used-book industry...."Used books are to consumer books as Napster was to the music industry," [Lorraine Shanley, a principal at Market Partners International, a publishing consultant,] said. "The question becomes, 'How does the book industry address its used-book problem?' There aren't any easy answers, especially as no one is breaking any laws here." Did I say perennial? Yes. How about this quote from the New York Times in 2002 ( Online Sales of Used Books Draw Protest): "We asked could we at least talk about when something could become available as a used book? Could we maybe wait three months after the book was published?" said Patricia Schroeder, president of the Association of American Publishers. "The biggest problem is that it is legal, I think. I wring my hands, pound my desk and say, `Aargh.' " I think the publishers should simply stop selling books to people who are going to turn around and sell them as soon as they are done. Perhaps shrinkwrap contracts or DRM would be in order. (Sarcasm)
via LawMeme
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Posted by Ernest Miller
What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List.
Today on Hatch's Hit List: 3D Printers
One of the points that I want to emphasize with Hatch's Hit List is the effect it will have on nascent technologies; those technologies that are just around the corner. It is precisely these devices and the innovation they represent that are most vulnerable to Hatch's law. These are new technologies that usually lack significant monetary backing to fight massive copyright lawsuits. They are not yet well-established so that people can immediately see their benefit. For example, anyone who uses a TiVo realizes what a revolutionary device it is. Those who haven't used one often think they are nothing more than a glorified VCR. In other words, nascent technologies are frequently technologies that we don't realize we need yet and would be easily crushed by INDUCE Act lawsuits.
3D printers are a perfect example of this sort of technology. They seem to be making a great deal of progress and there is a good probability that they will eventually reach the consumer market. See, for example, New USC Process Offers Faster, Cheaper 3D Printouts, 'Gadget printer' promises industrial revolution, and Entering the Era of Printable Devices?. 3D printers may revolutionize our lives in ways we can't imagine (or they may not, but that's not the point).
When 3D printers first reach the consumer market, what are they frequently going to be used for? Copyright infringement, of course. Very few people will ever master the skills to create even a basic CAD/CAM design. So the designs for the items their brand-new 3D printer will create will have to come from somewhere. Since the 3D printer market will initially be small, it is unlikely that there will be all that many companies selling designs. Infringement will be the obvious source for 3D printer designs. I mean, really, who wouldn't want to print out a collection of bootleg Garfield figurines if they could? I don't even want to think about the headaches this would cause eBay.
You can justify 2D printers with claims that people will write their own papers or print their own photographs. You can't say the same for consumer-grade 3D printers and, thus, they will surely induce people to infringe copyrighted designs, which means that Hatch's law will make them effectively illegal (at least for consumers).
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Posted by Ernest Miller
EFF attorney and Copyfighter Jason Schultz has been on a roll recently identifying cases in which the anti-circumvention provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 1201, have been used not to protect copyright but (as critics claimed they would) to stifle competition. The basic issue here is that companies can prevent competitors from interoperating with their devices by implementing simple DRM handshakes. The classic example so far is Lexmark's use of the DMCA to prevent rivals from selling replacement toner cartridges (Lexmark invokes DMCA in toner suit). For more examples, see EFF's Unintended Consequences: Five Years under the DMCA. In the last week Schultz has pointed out four similar cases. Read on...
...continue reading.
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Posted by Ernest Miller
One might not think it, but comic books have not only become a major cultural force through movies, but have led to some extremely interesting intellectual property and free expression cases. Anymore cases and comics will soon have to have their own chapter in the lawschool textbooks right next to the chapter on Scientology.
In the last few years, there have been a number of obscenity charges against comic books (see, Comic Book Legal Defense Fund: Casefiles). There have also been some extremely interesting intellectual property cases. For example, there was the Winter Brothers case, in which the famous blues musicians sued a comic book publisher and its artists for their portrayal in a comic book as half-worm/half-man creatures (citing right of publicity issues among others) (California Supreme Court Rules Jonah Hex Comic Entitled to First Amendment Protection).
Comic book artist turned cultural entrepreneur Todd McFarlane is most famous for his creation of the multimedia character Spawn. He is also famous for his additions to the comic book lawsuit canon. Earlier this year an important decision regarding the ownership of comic book characters was decided against him. Interesting issues include the statute of limitations for copyright and copyright for a joint creation. Scrivener's Error has a good summary (Character Defects).
The second case of interest is hockey player Tony Twist's lawsuit against McFarlane for using Twist's name for a comic book mafia boss. The case was thrown out twice, by a Missouri district court and the state appeals court, but was reinstated by Missouri's Supreme Court. An appeal to the US Supreme Court was denied.
The case raises important First Amendment issues regarding the use of the names of public figures in works of art, so it is unfortunate that the St. Louis Post-Dispatch reports the second jury trial goes against McFarlane (Tony Twist wins $15 million verdict). The AP also has wirestory regarding the decision (Tony Twist wins battle over name). Of course, the case isn't over yet, as McFarlane intends to continue to appeal.
via How Appealing
UPDATE Prof. Eugene Volokh, who wrote an amicus in the case, has some informative comments (Naming a character after a famous person costs writer $15 million).
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Posted by Ernest Miller
Books are the treasured wealth of the world and the fit inheritance of generations and nations. Books, the oldest and the best, stand naturally and rightfully on the shelves of every cottage. They have no cause of their own to plead, but while they enlighten and sustain the reader his common sense will not refuse them.
- Henry David Thoreau, Walden On July 8th, Eric Eldred and the Internet Bookmobile went to Walden Pond to help celebrate the 150th anniversary of the publication of Thoreau's Walden ( Free Walden). The reception wasn't at all what one might expect: After an hour of having readers print and take away free copies of "Walden," I was asked by the Walden Pond Reservation police to pack up and leave and threatened with arrest. I left.
The park supervisor (Denise Morrissey, 978-369-3254) told me I could not pass out free literature without a permit. And she would not give me a permit because, as she explained, the state park gets money from a concession by the Thoreau Society, which operates a store that sells "Walden"--and I was competing with them by giving away free copies. I cannot say how sad and disappointed this makes me nor can I imagine the response Thoreau would have had to this expression of the general police power. This is beyond any irony.
On the other hand, the Internet Bookmobile contines to do great work. I've said it before and I'll say it again. I think every school and library ought to have this publishing technology and access to thousands of great and important books freely available (Book Publishing in Every School and Library).
Of course, one of the wonderful things about the current moment is that we now have a growing number of really good books that are not out of copyright, but are copyleft. Not only can the Internet Bookmobile print Walden, but you can get a copy of such Creative Commons-licensed works as Lessig's Free Culture (though Eldred tells me it takes awhile to print the whole thing - he's given away chapters), Cory Doctorow's Down and Out in the Magic Kingdom, and coming (very) soon, Dan Gillmor's We the Media.
via Boing Boing
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July 11, 2004
Posted by Ernest Miller
Robert Greenwald, an honored (and innovative) director and producer of films, has a new documentary coming out that critiqes Fox News, called OutFOXed. The New York Times Magazine has a lengthy article on many of the issues facing the making of this documentary, most prominently the copyright clearance issues (which are particularly difficult for films) (How to Make a Guerrilla Documentary).
Obviously, the documentary will feature many clips from Fox News, often showing them in a less than flattering light. Fox News famously sued over the title of Al Franken's book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. The case was laughed out of court, but it shows how litigous Fox News is willing to be. So, Greenwald is rightfully afraid that he will be sued, despite the merits of his case. Fortunately, it seems that perhaps Fox News has learned its lesson (their lawsuit helped publicize Franken's book better than anything). According to the Washington Post (annoying reg. req.) Fox News may ignore this documentary (though the statement certainly isn't a promise not to sue) (Too Late to Comment?): "People steal our footage all the time," says Dianne Brandi, Fox News's vice president for legal affairs. "We generally sort of look the other way."
Nevertheless, there have already been other significant copyright problems, according to the NY Times Magazine article: Then there was the fact that several major news organizations were unexpectedly refusing to license their clips. (Such licensing is ordinarily pro forma.) CBS wouldn't sell Greenwald the clip of Richard Clarke's appearance on ''60 Minutes,'' explaining that it didn't want to be associated with a controversial documentary about Murdoch. WGBH, the Boston PBS station, wouldn't let Greenwald use excerpts from ''Frontline'' for fear of looking too ''political,'' it said.
An aside: Of course, why use copyright law if there are other means to prevent the making of these sorts of films. Take, for example, the process Greenwald used to make the film: ''Outfoxed'' was made in an unusually collaborative fashion. In January, Greenwald rigged up a dozen DVD recorders and programmed them to record Fox News 24 hours a day, seven days a week, for about six months. Fortunately, Greenwald didn't have to deal with the broadcast flag, which would make using such clips significantly more difficult (and expensive).
Another critical aspect to note about Greenwald's film is the innovative distribution methods he uses, bypassing traditional gatekeepers: Last year, Greenwald followed up that effort with ''Uncovered,'' his critique of the Bush administration's case for war in Iraq, which featured interviews with former intelligence analysts, weapons inspectors and Foreign Service officers. Once the film wrapped, Greenwald turned the traditional distribution model on its head. Rather than taking the time-consuming route of entering film festivals or courting theater distributors, he sold the DVD of ''Uncovered'' through the Web sites of various left-liberal organizations: MoveOn, The Nation magazine, the Center for American Progress and the alternative-news Web sites AlterNet and BuzzFlash. Through such means he has sold tens of thousands of DVDs. This is no mean feat and it shows the power of alternative distribution. After all, what conventional distributor would be willing to publish such an obvious lawsuit target?
Another aside: The people behind the film recognize the potential for even more innovative distribution. Jim Gilliam, a 26-year-old former dot-com executive and a producer of ''Outfoxed,'' is enthusiastic about the way Greenwald's projects meld grass-roots politics with the culture of the Internet. He predicts a future -- augured by events like MoveOn's competition for the best 30-second anti-Bush advertisement -- in which young political filmmakers will be as likely to wield a camera phone as a digital camera. ''It won't be long before people will be shooting and editing short documentaries that they'll stream from their blogs,'' he says. Yep. Sounds like broadcatching.
Luckily, given all the major legal issues involved, Greenwald has Ubercyberlaw Prof Larry Lessig and others working with him on the copyright issues (outfoxed). Says Lessig, As the Times article describes, Greenwald’s style for distributing documentaries may be the beginning of something new — political criticism, using interviews and clips, making a strong political point, distributed through DVDs and political action groups. (See some other examples here). On what theory does he, and others, have the right to use such material without permission? On the free culture theory we call the First Amendment: Copyright law must, the Court told us in Eldred, embed “fair use”; “fair use” is informed by First Amendment values; the values of the First Amendment most relevant here are those expressed in New York Times v. Sullivan. As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium — now liberated by digital technology — is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first. [links in original] Indeed. Lessig's right: Watch the movie. Celebrate the freedom it represents. It is a particularly American freedom that we should celebrate and practice more often.
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+ TrackBacks (0) | Category: Broadcast Flag | Broadcatching/Podcasting | Copyright
July 10, 2004
Posted by Ernest Miller
A belated happy 3rd birthday to LawMeme!
LawMeme went public July 2, 2001 with this post on facial recognition technology: Tampa uses cameras to scan for wanted faces. Since then, there have been more than 1500 posts on LawMeme. Three years might not seem like a long period of time, but to my knowledge, LawMeme was the first official law school blog, thanks to Prof. Jack Balkin, the Information Society Project and all the people who have posted, worked on it, read it and commented on it over the years. Congrats and many thanks to LawMeme and the LawMeme crew!
Below are some of what I consider the more popular and/or noteworthy posts from the past few years. There are many other great posts, but these are just a few that stand out in my memory.
On Copyright: Top Ten New Copyright Crimes
The First Academic Blawg (and possibly, blog) Conference: Revenge of the Blog
On Privacy: James Grimmelmann's Accidental Privacy Spills: Musings on Privacy, Democracy, and the Internet
On Contract: James Grimmelmann's Google replies to SearchKing lawsuit
On Spam: Rebecca Bolin's Incredible Series LawMeme: Spam
On Biometrics: Fingerprint Follies and the Superman/Clark Kent Biometric Conundrum
On Annotations: Silly Things Directors Say
On the DMCA: Analysis of BNETD and Blizzard
On Gaming: James Grimmelmann's On the Second Life Tax Revolt
On Filesharing: Compulsory Licensing - The Death of Gnutella and the Triumph of Google
First post to get mainstream press notice: US Wields $ Not Law to Censor Satellites
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Posted by Ernest Miller
Yesterday, I noted some troublesome reports about the Rhapsody music streaming service (No Guarantees with Content Subscriptions). According to Joe Gratz, music was appearing and then disappearing from Rhaspsody (The Danger of Subscription Music Services). Well, Gratz sent a link to his post to Rhapsody PR person Matt Graves who quickly responded (kudos on taking a blogging customer seriously) and confirmed that, indeed, such shenanigans happen for a variety of reasons but are rare (Real Responds). Gratz's original post had raised the possibility of the music labels toying with consumers by making music available only for limited periods of time, a concern I share. Graves responded: Sure, labels (indie or major) could tease consumers by offering music online for only a short period of time, then take it offline and make it available only at retail, but that seems like a lot of work to sell a few CDs. And taking it offline permanently could make people more angry than if you never offered it online in the first place. I'm not so sure the concept is far-fetched. You know how every year or so, McDonald's runs big promotions for the McRib sandwich ( available only for a limited time)? Or how Disney makes some movies available once a generation or so? Does this tick off consumers? Yes, but more importantly it drives up demand. McRibs sell like McGriddles hotcakes for a few weeks and then, as demand falls, are taken off the market until their next appearance. If you knew you could buy a copy of Disney's Snow White anytime (Disney's version is not currently available after a limited time release), many would not have rushed to purchase it.
Therefore, I don't find it particularly hard to imagine record labels playing all sorts of games with subscription services to boost sales and/or listens. I've a number of CDs (all thankfully ripped now) in my collection that I don't listen to particularly often, but really enjoy. I know I can always call them up when I want to, but don't simply because my choices are so wide. However, if you told me they were going back into the vaults (for resampling in some new format or some such nonsense), so I'd better listen now, I would. I think such tactics would work in a number of different scenarios. For example, limited edition live concerts. You don't pull all of artist's works, but some rarer works might be available for a limited time. When an artist isn't creating new material, this might be a way to maintain interest in the older material. At the very least you get some press releases out there.
So when a subscription service tells me (using a paraphrase from the NY Times) that a subscription will provide "access to favorites no matter what storage format comes out" excuse me if I'm skeptical.
Me? I like the subscription with mucho included downloads option. All the benefits of a subscription, all the benefits of ownership.
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July 09, 2004
Posted by Ernest Miller
Recently, on Copyfight, there have been a couple of posts about "tethered" music services (A Tale of Two Tethers and RCN's New Tethered Music Service). In A Tale of Two Tethers, Jason Schultz linked to a NY Times article in which a proponent of subscription streaming music services (as opposed to downloads) touts the supposed superiority of access such services provide (From a High-Tech System, Low-Fi Music): Richard Wolpert, chief strategy officer of RealNetworks Inc., the parent of RealRhapsody, takes aim at Apple when he muses that customers will be unhappy when they decide that they want to own music encoded at 320, not at 128. Far better, he argued, to abandon the notion of "owning" songs, because the concept condemns users to endless purchases. "How many times do you want to own your music?" he asked. "I own my music as eight-tracks, I own my music as albums, I own my music as cassettes, I own my music as CD's."
With a subscription service like RealRhapsody, one saves personal tastes in the form of playlists that replace actual music collections, providing access to favorites no matter what storage format comes out "in the next 5 or 10 or 20 years," Mr. Wolpert said. [link omitted] Unfortunately, access to favorites isn't guaranteed. According to Joe Gratz, some of the music on Rhapsody has a tendency to disappear, sometimes in only a few weeks ( The Danger of Subscription Music Services): Several times over the past few months, new releases have appeared on Rhapsody on their release date, only to be pulled from the catalog a few weeks or months later. Imagine the licensing battles of the future. When renegotiating licenses, artists and publishers could pull their music out of the subscription system, thus leaving subscribers with no access to the music on the playlists they so carefully created. Gratz anticipates even shadier behaviour: There is the possibility here for some very nasty crack-dealer-like licensing behavior on the part of the record companies: they license to subscription services for a while, then pull the album so people who are hooked go out and buy the CDs. Record companies could even repeat this gambit over and over, hooking new subscription-service users then forcing CD purchases each time. Wolpert's right. A subscription service means that your music can be upgraded over time (though shouldn't we be at a point where upgrades are unnecessary?). Of course, that doesn't help much if the music is taken off the subscription service. That's a risk that Wolpert failed to mention. Maybe ownership isn't passe quite yet ( Rental Nation).
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Posted by Ernest Miller
When the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) first became news it was disparagingly (and rightfully so) compared to an infamous bill from 2002, the Consumer Broadband and Digital Television Protection Act aka CBDTPA aka Hollings Bill (after the Senator who sponsored it) (INDUCE Act = Son of Hollings?). One of the most clever attacks on the CBDTPA was a little thing Ed Felten came up with on Freedom to Tinker: Fritz's Hit List. What was Fritz's Hit List? Well, the name came from Sen. "Fritz" Hollings. More importantly though and in Felten's own words (New Feature: Fritz's Hit List): Most readers have probably heard me, or someone like me, say that the Hollings CBDTPA has far-reaching effects -- that it would regulate virtually all digital devices, including many that have nothing at all to do with copyright infringement. Though this argument is right, it is too abstract to capture the full absurdity of the CBDTPA's scope.
To foster reasoned debate on this topic, I'm inaugurating a new daily feature here at freedom-to-tinker.com, called "Fritz's Hit List." Each entry will give an actual example of a device that would meet the CBDTPA's definition of "digital media device" and would thereby fall under the heavy hand of CBDTPA regulation.
I'll post a new example every weekday for as long as I can keep it up. Please email me if you want to suggest an example. (I have plenty of good ones in the queue already, but your suggestions may be better than mine.) Well, I think the far-reaching effects of the INDUCE Act are worthy of similar treatment. So, starting today, I will endeavor to post every weekday an example of a nascent technology that can be quashed by the INDUCE Act. Of course, "Orrin's Hit List" doesn't quite roll off the tongue, thus "Hatch's Hit List." As with Fritz's Hit List, please email me (ernest.miller 8T aya.yale.edu) with suggestions. Read on...
UPDATE
The entire list can be found here: Hatch's Hit List
...continue reading.
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Posted by Ernest Miller
The Motley Fool calls opponents of the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) the "Chicken Little crowd" (Will Congress Kill the iPod?): What the bill would do is amend existing copyright law to allow lawsuits against those who "intentionally induce" copyright infringement. It would be nearly impossible for a reasonable person -- and that is the standard used in the bill -- to decide that an iPod is a tool for intentional violation of copyright. Ditto a pay-per-download service with copy-protection schemes. [italics in original] Well, I'm so relieved. After spending millions to get through a jury trial, established technologies would likely survive. We can be sure that the reasonable person would have voted to save the VCR (in the early years when they were expensive and not widely used), what with Valenti (a reasonable guy himself) telling the reasonable man that the VCR was a vicious serial killer designed by the Japanese to assault Hollywood. Oh, and systems with copy-protection schemes would be allowed to thrive. Why, that is just dandy.
Actually, however, this column does make a very good point, one I've made on the Pho List. If the INDUCE Act actually becomes law, it is highly improbable that Apple would be sued over the iPod. Yes, a plausible case could be made against Apple: EFF's Mock INDUCE Act Lawsuit. However, realistically, the RIAA has made its peace with Apple and would not sue them. That's a bit of the problem with the Save the iPod campaign. The website asks "Is the iPod Really at Risk?" and answers "Yes!" Well, no. It isn't the iPod that is at risk, it is the small company's non-DRM'd wireless iPod clone that is at risk. The biggest threat is to the innovative next-generation iPod from some company that no one has heard of yet that the RIAA will quash long before it can sell millions of units and make us all wonder how we survived without one.
That's a harder story to sell and make bumper stickers for. On the other hand, by claiming a need to "Save the iPod," you run into a problem when people say, "don't be ridiculous, Apple isn't going to be sued," because they're right. Your "Save the iPod" campaign will certainly not look credible if Apple is supporting the other side (they certainly haven't come out against the INDUCE Act yet). As a consequence, it is going to be a little harder, now, to convince the readers of the Motley Fool that they should oppose the INDUCE Act.
In other INDUCE Act news, Digital-Lifestyles.info, has a brief piece on the IICA (Senate Moves to Outlaw P2P Applications): The sponsors of this bill are being blinkered into a view that is entirely concerned with the profits of one group – the music industry. The backers of the Induce act are rallying towards just one group at the moment, because that's where the money is. I have to disagree. The IICA backers are also rallying for the MPAA and BSA.
UPDATE
Audio/Video Revolution does a short straight-up story on the issue (New Bill Suggests Apple Could Get Sued For What People Do With Their iPods).
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Posted by Ernest Miller
FCC Chairman Michael Powell has launched a blog [As Dave Barry would say: I'm not making this up] (Michael Powell Joins the Blogosphere). So what does the chairman have to say in his first post? Well, he reiterates his commitment to deregulation, that is, when it doesn't upset entrenched interests too much. Our struggle to define appropriate regulatory regimes to promote innovation is not limited to the telephone sector. The Commission's digital television transition is yet another example of how difficult the struggle can be. Yeah, the broadcast flag is really going to promote innovation. Why, just think of the useless technology developed because television was an open platform! To borrow some concepts from Prof. Frink, "I predict that, if the FCC were in charge of developing the VCR, that within 100 years a VCR will record twice as much programming, be 10,000 times larger, and so expensive that only the five richest moguls in Hollywood will own them." For example, I need to hear from the tech community as we transition to digital television. It may be possible to deploy innovative wireless services in the unused spectrum between broadcast stations (for example, there is no channel 3 or channel 6 here in San Francisco)...Broadcasters, however, claim these unused channels as "their" spectrum. Yet a public policy that favors innovation and experimentation would seek to open these unused channels to develop new wireless services…just look at how much value has been created in the sliver of spectrum that has become Wi-Fi! If the high-tech community believes that new digital technologies will enable this kind of new thinking about and use of spectrum, then I need to know that. *ahem* Chairman Powell, it may be possible to deploy innovative television services based upon an open television platform. Broadcasters, however, claim that they must control and direct development of a closed platform, that the platform is "theirs" and requires a "broadcast flag." Yet a public policy that favors innovation and experimentation would seek to open the platform to develop new services…just look at how much value has been created in the open analog television platform! Many in the high-tech community believe that new digital technologies will enable this kind of new thinking about and use of an open television platform. *ahem* Regulated interests have about an 80 year head start on the entrepreneurial tech community when it comes to informing regulators what they want and need, but if anyone can make up for that, Silicon Valley can. This is important not just for Silicon Valley—it's essential to insure that America has the best, most innovate communications infrastructure. You know, unless it upsets Hollywood. Because Hollywood will ensure that America has the best, most innovative communications infrastructure.
via JD Lasica
UPDATE
Jeff Jarvis has some harsh words for Powell's "blog" (Daily Stern - July 9, 2004).
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+ TrackBacks (0) | Category: Blogging and Journalism | Broadcast Flag | News | Telecomm
July 08, 2004
Posted by Ernest Miller
The excellent Broadcasting and Cable reports on a recent talk by David Solomon, Chief of the FCC's Enforcement Bureau, regarding the FCC's indecency enforcement, natch (F-Word Not Banned, Says FCC). Last March, the FCC notoriously reversed position and declared that Bono's use of the word "fucking" as in, "fucking brilliant" was not only indecent but also profane (FCC Revives Notion of the Profane). So what does the chief enforcer have to say about this? He insisted to a Media Institute crowd Wednesday that the Bono decision did not mean the f-word was, per se, off limits, and said the bureau and commission still are taking context into account, pointing to the precedent of the news exemption for f-words in mafioso John Gotti tapes on NPR. Of course it isn't per se off limits. If it were the Supreme Court would laugh the already silly FCC out of the courthouse, since the Supreme Court clearly requires "context" to be part of the indecent decision making process. So, when would it be permissible? The Gotti decision was over a decade ago, and the Bono decision basically said that all broadcasters could no longer rely on prior decisions. He did not concede the point, but did recognize the criticism that the punishment of the fleeting, live, non-sexual adjectival f-word by Bono left little room for a non-actionable use of the word, at least in the entertainment realm.
But news is not a shield, either, he pointed out, citing the KRON-TV puppetry of the penis case, in which a morning news show was fined for an errant puppet. Solomon said that fine was because the on-air newspeople appeared to be encouraging the "flash." So, if you play that Gotti tape a little too often, or maybe joke about it a little, you'll get fined. News should be serious and unentertaining, apparently. In any case, Gotti used the word "fuck" or its variations ten times in seven sentences. You know any broadcasters who would play the tape today? 'Cuz I sure don't. Solomon, whose earlier decision that the Bono f-word was not indecent was reversed by the full commission, told a Media Institute crowd in Washington that broadcasters must start doing more to self-regulate, and not hide behind "the mantra of the First Amendment." Translation: Self-censorship is so much easier for us. How dare you exercise your full free speech rights.
Solomon also seemed to look forward to the court challenges, which would provide welcome guidance. Wait a minute, the FCC has said that the broadcasters have all the guidance they need. If the FCC would welcome more guidance, how can it be that the broadcasters have enough guidance? Either you need more guidance or you don't. If you don't need more guidance than additional guidance is unnecessary and a waste. Seems to be a significant inconsistency here.
Finally, because of the fine boost, Solomon doesn't expect to fine the maximum routinely anymore. Yeah, right. The Congress provided new maximums so that they wouldn't be used, sure.
No mention of profane language in this article. I would really love to sit down with some people from the FCC and have them explain their reasoning about "profane" language to me.
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Posted by Ernest Miller
Yesterday, the Los Angeles City Council voted to impose requirements for a police permit in order run a cybercafé. Technically, another vote will have to be taken next week and then the ordinance goes to Mayor James Hahn for his signature. The ordinance is expected to go into effect later this summer. Read on for a detailed look at the ordinance...
...continue reading.
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Posted by Ernest Miller
The Inducing Infringment of Copyrights Act (IICA, née INDUCE Act), is starting to get a little more press, though most of it remains ghettoized in the technology sector. Here are a few notable articles:
Number one is the transcript of USA Today's talk with EFF's Ren Bucholz' about the INDUCE Act (File sharing and the law: Ren Bucholz). Unfortunately, there were more questions than time. Hopefully, USA Today will invite Ren back to keep the public informed about this issue.
PC World senior editor Anush Yegyazarian does a very good job providing the big picture about the pro-copyright industry legislation that we're facing. (Copy Crime and Punishment). Definitely recommended.
Internet News focuses on the fast-track process Sen. Orrin Hatch (R-UT) is using to sneak the INDUCE Act through Congress (P2P Bill Induces Tech Group to Action).
The Philadelphia Daily News (annoying reg. req.) has a very interesting column that is fairly supportive of many of the recent copyright-related bills (PIRATE Act, Camcorder Use in Theaters, etc.), but really goes after the INDUCE Act with a vengeance (High-tech products taking a licking): But a third measure (S. 2560), promoted by Hatch, is really scary in a "Big Brother" kind of way. Called the Inducing Infringements of Copyright Act, it could put the kibosh on all sorts of technological advancements by making "criminally liable" any equipment or service provider whose product has the potential to "aid, abet, induce or procure" copyright infringement.
Hopefully, we will see more mainstream press coverage of the INDUCE Act.
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Posted by Ernest Miller
Brother Dana writes a post that uses Steve Jackson Games' Ogre as a metaphor for the difficulties that Microsoft has in dealing with viruses and bugs (Moore's Lore: Ogre). For those who aren't wargamers, Ogre is an extremely cool game that pits one giant cybernetic super tank (the titular Ogre, with tactical nukes) against hordes of regular army units (except they have tactical nukes too). Think Godzilla vs. the Japanese Army (except, because the game is exceedingly well-balanced, the Japanese Army actually stands a chance). Dana says, In the real world, of course, the Ogre can't win.
With every turn of time, the other side gains more allies. The Ogre remains the Ogre. Even if the Ogre grows, he's not going to out-grow his opponents. The bigger he gets, in fact, the more opponents he draws. Yes, but what of the Ogrethulu scenario? Ogrethulu is a variant of Ogre that mixes it up with H.P. Lovecraft's Cthulu Mythos. For an image of an Ogrethulu, click here and scroll about 2/3 down. Also note that Lovecraft's works are now in the public domain.
In any case, in Ogrethulu, the Ogre can regenerate its damage by eating the other units. If you're not careful, an attack by smaller units might only make the Ogrethulu more powerful.
What does this have to do with Dana's metaphor? Well, there might be a point in there or there might not. I'm not really sure. I just think Ogrethulu is a way cool metaphor for Microsoft. Also, I've been playing Steve Jackson's games since he worked for Metagaming. Bonus: SJ Games' most excellent GURPS is getting a brand new, tweaked and revised edition this August.
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+ TrackBacks (0) | Category: Oddities
Posted by Ernest Miller
I've discussed before how Senator Orrin Hatch's (R-UT) legislative proposals seem to strangely benefit pornographers. See, PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry. Why should the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) be any different?
I've already written about how easy it would be under the INDUCE Act for anyone who owns a copyright to haul innovators into court, not because of the merits of their case, but merely because the law basically lets them extort money from the target (INDUCE Act (IICA) = Patent Extortion, but for Copyrights?). A similar argument is made by the organizations and companies that sent a Letter to Senator Hatch, Re: S. 2560, the "Inducing Infringement of Copyrights Act of 2004"): There are many, many more copyright owners than there are patent owners, and the burden of proof to establish at least a prima facie case of copyright infringement is minimal rather than significant and specific as in patent cases. However, if one wants to show infringement, the copyrighted work would still have to be illicitly distributed or copied somehow. Not all copyrighted works will do the trick. Let's face the facts, most copyrighted works (like this blog), just don't get much attention. Most copyrighted works are not infringed because no one cares to. For example, as I've noted elsewhere, the likelihood of finding a copyrighted work on a filesharing network is determined more by the popularity of the work than just about any other factor.
So, what is an INDUCE Act exploiter to do? They must not simply own any old copyright, they must own a copyright that is reasonably likely to be infringed. Sure, the RIAA, MPAA, BSA and their members are likely to have access to widely infringed works, but what about the group of enterprising lawyers little guy who can't easily pull a popular band or film out of his back pocket? What's easy and cheap to produce, but is also popular to infringe? Pornography, of course.
Moreover, pornography companies have generally been hesistant to sue their customers; they see P2P networks as free advertising (P2P and Pornography: Cheap is More Convenient). Consequently, many filesharers don't hesitate to share pornography as they might lawsuit-inducing music or movie files. Of course, the would be exploiters won't really care about the infringing either, but they will be able to take advantage of it to legally extort money from innovators. Heck, these enterprising pornographers wouldn't even have to bring the lawsuits themselves. They would merely have to seek to join the inevitable lawsuits that the big boys will bring.
Once again, Sen. Hatch has designed a law eminently suited for exploitation by pornographers. I'm starting to think the guy has a secret agenda.
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July 07, 2004
Posted by Ernest Miller
Today, the Federal Censorship Communications Commission (FCC) announced (through a notice of proposed rulemaking) that it will likely be requiring all broadcasters to retain copies of their broadcasts for 60 - 90 days in order to better combat indecent broadcasts (In the Matter of: Retention by Broadcasters of Program Recordings [PDF]): In this Notice of Proposed Rulemaking (“NPRM”), we propose to require that broadcasters retain recordings of their programming for some limited period of time (e.g., 60 or 90 days) in order to increase the effectiveness of the Commission’s process for enforcing restrictions on obscene, indecent, and profane broadcast programming. [italics in original] Decency Nazgul and Commissioner Michael Copps was enthusiastic about the new requirements ( Statement of Commissioner Michael J. Copps, Re: Retention by Broadcasters of Program Recordings, Notice of Proposed Rulemaking [PDF]): The process by which the FCC has enforced the indecency laws has for too long placed inordinate responsibility upon the complaining citizen. When someone sends in a complaint, he or she is usually told to supply a recording of the program or a transcript of the offending statement, or the complaint will be dismissed. This policy ignores that it is the Commission’s responsibility to investigate complaints that the law has been violated, not the citizen’s responsibility to prove the violations. [emphasis in original] This rulemaking is very troubling for a number of reasons. Many have claimed that the FCC's indecency crackdown is nothing more than election year posturing. This NPRM indicates that it is not. Once this rule is put in place, it is unlikely to go away. Read on...
...continue reading.
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Posted by Ernest Miller
Cyberlaw Prof Larry Lessig takes a look at some of the reasoning that seems to have informed those behind the Inducing Infringments of Copyright Act (IICA, née INDUCE Act) (continuing congressional confusion on copyrights (ie, not just (c), or (cc), or even (ccc) but (cccc))). He points to a recent paper (Sony Revisited [PDF]) from Lee Hollaar, Computer Science Professor with the Univ. of Utah. From the introduction of the paper: Today, tens of millions of people participate in peer-to-peer systems like Kazaa, with most users “sharing” not their own material, but more likely music whose copyrights are owned by others. Whether such activities hurt the copyright owners by being a substitute for legitimate sales and license fees, or help by sparking interest in a new work, is not the question here. The Constitution and the copyright statutes give a copyright owner the exclusive right to the protected work during the limited duration of the copyright, and therefore the right to determine the business model for its distribution to the public. [footnotes omitted] Lessig briefly addresses Hollaar's arguments, but really pushes the point that Sony enshrines the separation of powers, that, This is not an opinion about copyright law alone. It is an opinion about separation of powers — about which branch is best able to do the necessary balancing that copyright law demands, “within the limits of the constitutional grant.” Sony says, in effect, when a technology is not simply a technology for violating the law, then it is left to Congress to decide whether and how that technology is to be regulated. Congress, not the courts. [link in original] My perspective on Hollaar's paper when I've had a chance to go through it.
Comments (1)
+ TrackBacks (0) | Category: Copyright | File Sharing | INDUCE Act
Posted by Ernest Miller
I've written a couple of pieces on bloggers at the political conventions (Blogging the Political Conventions and Major Broadcast Networks to Decrease Convention Coverage - Author Experiences Schadenfreude). I still stand by my conclusion that: Blogs at conventions might be as dull and un-newsworthy as the mainstream press at a convention, but it would be hard for them to be worse. We will have to see whether blogs can avoid the pitfalls of the mainstream media, the jury is out. However, to really get a much deeper understanding of what the political conventions are, why they are that way, and how the mass media and political parties have gotten themselves into their current mess, you really must read Jay Rosen's definitive exploration of these issues on PressThink ( Convention Coverage is a Failed Regime and Bloggers Have Credentials). Here is but a taste (read the whole thing): No one knows what a political convention actually is, anymore, or why it takes 15,000 people to report on it. Two successive regimes for making sense of the event have collapsed; a third has not emerged. That's a good starting point for the webbloggers credentialed in Boston. No investment in the old regime and its ironizing. The blogs come at this fresh. I'm going. Although it isn't directly about the conventions, Mary Hodder has more insightful things to say about the relationship between blogging and journalism on Napsterization ( It's a Form of Social Media: Blogging AND Journalism). She's right, as usual.
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Posted by Ernest Miller
A couple of weeks ago Eric Harrison wrote a head-to-head comparison of Windows Media Center Edition and TiVo. (TiVo versus Media Center Edition PC's - finally!). TiVo won, partly because the original Windows machine had all sorts of defects, but mostly because TiVo is a more solid performer. Paul Robichaux's comparison goes into more depth about the MCE (Media Center Eye for the TiVo Guy).
Jupiter Research analyst Michael Gartenberg looks at Harrison's comparison and adds some thoughts of his own, as JR is working on a report on standalone DVRs (Tivo comparison to Windows Media Center): First, the PC is more flexible. If I want to store and view my pictures, music and other video content, burn to DVD, copy to a portable media player and stream that content to other devices in my home, I can do that with the PC and not with the TiVo. The MCE EPG is also more flexible. Try and record the West Wing on TiVO, just the 7pm episodes shown on channel 44, not the other boradcasts. You can't do it. It's a snap on MCE. (why would you want to? to record a series according to airdates so you can watch the episodes in order). On the other hand, my TiVO never crashed, locked up, missed a scheduled record or any other annoying issue. Clearly the dedicated funcitonality makes for a more stable platform. Part of the MCE experience issue is that it's still a PC. You still need to exit to the shell to get some things done. You need to re-boot from time to time. If MCE is going to make inroads in the next year it needs to be able to shed the PC experience and live 24/7 as a consume electronics device. Here are my thoughts. I already have a TiVo. I already have a PC. Most of the people who are considering buying a TiVo already have a PC as well. If the TiVo could simply talk to the PC, then they (and I) could get the benefits of consumer electronics reliability and the flexibility of a PC without having to buy a whole new, rather expensive PC.
So why don't DVRs offer this flexibility? They get sued into oblivion: EFF Archives: Newmark v. Turner Broadcasting System. Need I mention that the IICA (née INDUCE Act) will make bringing such company-resource-draining lawsuits easier? Or that, in a little less than a year, the government will burden such capability with mandatory DRM: Digital Television Liberation Front?
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+ TrackBacks (0) | Category: Broadcast Flag | Broadcatching/Podcasting | Copyright | Digital Rights Management | INDUCE Act
Posted by Ernest Miller
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July 06, 2004
Posted by Ernest Miller
A plethora of technology companies and civil liberties organizations have sent a letter to Senator Orrin Hatch (R-UT) requesting that he hold hearings on the IICA (née INDUCE Act). Read the letter at EFF (one of the signatories): Letter to Senator Hatch, Re: S. 2560, the "Inducing Infringement of Copyrights Act of 2004". The letter argues among other things that, This new threat would chill innovation and drive investment in technology (and accompanying jobs) overseas. By combining (1) a new and separate cause of action for "intentional inducement," (2) a lower civil, rather than higher criminal, standard of liability, and (3) a circumstantially "reasonable" test, S. 2650 would seem to ensure that massive and intrusive discovery proceedings, and a jury trial, would await any innovator or investor who introduces to the market a product that some copyright owner, someplace, believes will "induce" infringement. (There are many, many more copyright owners than there are patent owners, and the burden of proof to establish at least a prima facie case of copyright infringement is minimal rather than significant and specific as in patent cases.) I've written (with more to come) about various specific possibilities of abuse of the proposed Act here: INDUCE Act Archives.
via Copyfight
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Posted by Ernest Miller
Over the holiday weekend, the AP reported that the Academy of Motion Picture Arts and Sciences (the people who bring you the Oscars) were considering a new anti-piracy technology that would include giving Academy voters special hardware to play DVDs keyed for a single player in order to thwart screener piracy (Studios Eye New Anti-Piracy Technology). Ed Felten explains why this might work as a security tchnology for Academy screeners, but not for mass-market DVDs (Fancy DRM For Academy Screeners?).
I must say, I applaud these efforts by the MPAA to act consistently (Props for Jack Valenti). It may not keep their films from getting onto the internet, but it demonstrates that they aren't hypocrites. Read on for some other reasons (in no particular order) I applaud this move:
...continue reading.
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Posted by Ernest Miller
Despite a plethora of online reporting and opposition to the IICA (née INDUCE Act) from the usual suspects in the tech community (such as WIRED, C|Net, Slashdot and The Register), the mainstream press has been remarkably silent. However, two articles this morning indicate that that may be changing. USA Today has a good article summarizing the bill and the views of its opponents (Copyright bill poses threat to iPod's future). Scarily, however, the bill continues to move forward quickly: Hatch can decide to schedule the bill for a committee vote as early as Tuesday, or at the end of the current congressional session. Hatch spokesman Margarita Tapia says there's no timetable. As for hearings, she says, "We may schedule a meeting if the chairman thinks it's necessary." Translation: "Hearin's? Hearin's? We don't need no stinkin' hearin's. And if we tells you the schedule, how we goin' to sneak the bill through?"
The Register brings welcome news that free expression hero Rep. Rick Boucher (D-VA) will be a vigorous opponent of the Act (Hatch's Induce Act comes under fire): "Anyone making ANY kind of recording device, even an innocent recorder that has many other fair uses, could be in breach of this law just for making that technology available. Frankly there is no need for the statute at all." UPDATE 0830 PT
Homestate newspaper castigates Hatch on INDUCE Act. The Provo Daily Herald has the following, less than flattering words for their senator (Beehives & Buffalo Chips): Buffalo Chip to Utah Sen. Orrin G. Hatch, who's taking his hatred for people downloading music to new depths. Hatch, who previously suggested frying the computers of those who download MP3 files through filesharing software, now wants to make the software illegal, on the grounds that Gnutella, KaZaA and others "induce" people to flout copyright laws. That's like arguing that bolt cutters should be illegal because they may induce someone to commit burglary. Maybe Hatch is upset because few people, if any, are downloading his schmaltzy music.[emphasis in original]
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Posted by Ernest Miller
A little over a week ago, I discussed how the IICA (née INDUCE Act) might end up extending the already overbroad Broadcast Flag Treaty (INDUCE Act + Broadcast Flag Treaty = ???). Today I continue my series on how various aspects of the copyright law may interact with the INDUCE Act by discussing the FCC's domestic broadcast flag regulation. Read on...
...continue reading.
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Posted by Ernest Miller
Telepocalypse discusses why DRM is bad for communication networks (DRM - enemy of telecom): Ultimately, telecom is about communications, not media. DRM inhibits communications. That’s the opposite of what you’re after. If we’d had DRM before the Internet became widely available, telcos would have sold a lot less dial-up and broadband, and the industry would have even more unlit fiber than it does today.
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+ TrackBacks (0) | Category: Digital Rights Management | Open Standards | Telecomm
Posted by Ernest Miller
One hundred years ago today, the Oil City Public Library opened thanks to a $50,000 donation from Andrew Carnegie (Building of library was controversial issue back in 1904). Yet, as the title of the article indicates, building the library was not universally applauded. Reading the article, which includes many quotes from the debates of the era, shows many parallels with the arguments surrounding many of the copyright, library filtering and open access debates of today: “The placing of a large collection of books within the reach of school children, without money and without price, will place all children on an equality. The child who has access to many books at home will not have so great an advantage as now over the child who cannot afford to own costly books of reference.”
“…If Oil City should have an institution of that kind, it would prove the ruination of hundreds of young persons, who would waste their time and corrupt their minds by reading cheap sensational novels.”
“People who claim that the reading of (dime) books…will injure the young should investigate carefully what these young ones are reading now.”
“The argument that reading works of fiction is injurious to the minds of working men is often advanced by men who themselves enjoy perusing such books.”
“The final (election) tally: 466 against the library, 982 for the library.” via LISNews
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+ TrackBacks (0) | Category: Copyright | Freedom of Expression | Oddities | Open Access
July 05, 2004
Posted by Ernest Miller
Oh, wait, that didn't happen.
The New York Times carries a Reuters wirestory on a 7% increase in music album sales for the first half of 2004 over 2003 (Album Sales in U.S. Reported Ahead of 2003). The short story doesn't attribute the change to any particular factor, but you can be sure that industry execs will take all the credit and complain that sales would be even higher absent P2P. What is the true story? No one really knows, the evidence is not decisive.
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Posted by Ernest Miller
WIRED publishes an AP wirestory on the opposition to violence in videogames (Violent Video Games Under Attack). Why violence? Perhaps it is because not too many games feature sex. I expect this to change over the next couple of years. In any case, this article is yet more evidence that the fight for free expression for this media form is not even close to over.
Of course, the good AP editors must still be on holiday: There is also the inescapable fact that the military uses video games to train its soldiers. A 2003 University of Rochester study found that young adults who played a lot of fast-paced video games showed better visual skills than those who did not. It is also an inescapable fact that the military uses movies, pictures and print media to train its soldiers. Why is this relevant? Is the military using the games to teach aggression? Perhaps they are using them to train for better visual skills, at least that is what the second sentence of the paragraph seems to imply, or maybe it isn't related to the first sentence at all. Who knows? Author Evan Wright ponders the effects of video games on U.S. soldiers in the current Iraq war in his new book Generation Kill. In an endorsement that Grand Theft Auto creator Rockstar Games would probably rather not get, he quotes one U.S. soldier as saying an ambush felt just like playing the game.
"It felt like I was living it when I seen the flames coming out of windows, the blown-up car in the street, guys crawling around shooting at us," the soldier says. A truly touching anecdote. Go back to the first Gulf War and you will undoubtedly find references to the resemblance or non-resemblance of war to the movies' depiction of war. A reader-submitted review of the book on Amazon claims that the book includes a similar anecdote about another media form as well, "someone recites gangsta rap lyrics as he ecstatically sprays machine gun fire on the enemy ( A very admirable piece of wartime journalism). Read the book and I'm sure you'll find other shocking examples of our culture being invoked by our soldiers in Iraq. Imagine that, our soldiers evoking our culture to describe war. Still, the notion that games should be restricted is accepted elsewhere. New Zealand, Brazil, Germany and several other nations have outlawed some games. They are also restricted in countries like China, too. However, the article doesn't note some other censorship characteristics. Germany outlaws all media (including games) that depict Nazism in particular ways, something our First Amendment wouldn't allow. New Zealand's Office of Film and Literature Classification has outlawed some movies as well.
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Posted by Ernest Miller
The New York Times runs an editorial by William Safire decrying lack of opposition to President Bush's abrogation of the rights of aliens and terrorism suspects shortly after 9/11 (Rights of Terror Suspects). He claims, [M]ost liberals — supposed advocates of the rights of the accused — did not want to appear to be insufficiently outraged at terrorists. Only two months after the shock of 9/11, with polls showing strong public approval of Bush's harsh measures to protect us, these liberals turned out to be civil liberty's summer soldiers. Prof. Jack Balkin takes the article to task by reprinting an editorial of his from Nov. 2001 ( Where Were the Liberals? All Over It, Bill). Some claimed that Balkin's warnings were over the top. However, the op-ed seems prescient in retrospect.
For those interested in what was actually being said at the time, I wrote a series of blog postings gathering many of the major media pieces dealing with civil liberties shortly after the attack. Many of the articles focus on cyberlaw and surveillance (they were posted on the law, tech and policy blog LawMeme), but many of the postings point to larger civil liberties issues. I believe that these postings from September 2001 will give a better idea of the climate of the the debate than Safire's rant:
Sept. 14, 2001 Winning the War by Preserving Our Way of Life
Sept. 16, 2001 More on the Civil Liberties Implications of 9/11
Sept. 17, 2001 The Latest on Civil Liberties and 9/11
Sept. 18, 2001 ZDNet News Focus on Civil Liberties
Sept. 18, 2001 The Civil Liberties Debate Continues
Sept. 19. 2001 Civil Liberties in Time of War
Sept. 20, 2001 More News from the Civil Liberties Front
Sept. 21, 2001 Concern for Civil Liberties Continues
Sept. 21, 2001 EFF Anti-Terrorism Bill Action Alert
Sept. 21, 2001 In Defense of Freedom - New Coalition Defends Civil Liberties
Sept. 25, 2001 Civil Liberties Continued ...
Sept. 26, 2001 Wartime Civil Liberties Report
Sept. 28, 2001 Civil Liberties Continued ...
Sept. 28, 2001 9/11, Surveillance, Free Expression and more on Civil Liberties
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July 02, 2004
Posted by Ernest Miller
Yesterday, MediaPost reported that for the first time since it has been tracked, the number of receivable television channels per household has stopped increasing and even decreased a bit (Universe Collapses: Well, TV's, Anyway): Average Number Of TV Channels Receivable
1985 18.8
1990 33.2
1995 41.1
2000 74.6
2001 89.2
2002 102.1
2003 100.4 TV executives are, of course, worried about this development and want Nielsen to look into reasons for the decline.
I think the reasons should turn out to be pretty obvious. The "channel" concept as currently used on television has enormous search and mental transaction costs. Think about it. Imagine if the internet had to be accessed through "channels." Couldn't be done. Heck, one of the main reasons RSS is taking off is because it provides much better access to numerous sources of information. I'd never be able to keep track of as many blogs as I do if I had to do click through each like a channel.
The article notes that: Still others think we've already reached a "channel-less" era of television, brought on by digital video recorders, where viewers essentially record and watch programming from their hard drives detached of the channels that originally televised them. See, here's the thing. DVRs haven't had enough market penetration to make that big a difference in the numbers. These numbers have very little to do with DVRs, I think. What they do point out are the limits of the current television interface known as "channels." Even if there were no DVRs, I think channel reception would naturally peak out simply because people would find very little utility in dealing with the search costs of so many "channels."
More importantly, what this quote fails to capture (and television executives can't see) is that DVRs should ultimately lead to an increase in the number of programs available, as smaller markets can easily be served through broadcast at times when TiVo can capture the broadcast, but no one is physically watching at 3 in the morning. DVRs = more programs, fewer channels. The channel concept does go away, but that doesn't mean less content. It means more content more easily found.
Ultimately, of course, this all leads to the channel-less future I call "broadcatching."
via The Future of Television
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Posted by Ernest Miller
C|Net News has a mildly interesting piece on the convergence of cellphone and digital music player (Cell phones heading into iPod territory). For many people, it probably makes a lot of sense to merge the two devices. However, cellphone companies are somewhat reluctant to dive in because they haven't figured out how to make money off something in which hardware sales subsidize service (and not the other way around). But ya gotta love this quote: Moreover, they're [cellphone companies] already making considerable money by selling ring tones--essentially 15-second to 30-second snippets of songs that substitute for a traditional ring--for as much as $2.50 apiece. That could look less appealing next to a 99-cent version of the entire song. Xingtones anyone?
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Posted by Ernest Miller
This story is a few days old, but I'm pretty sure similar stories will become more and more common as time goes by. Gadget blog engadget reports a case of VoIP spam, or what they call uneuphoniously "vam" (let's hope that phrase doesn't catch on) (Get ready for vam, or voice spam). Apparently, VoIP provider Vonage dropped a voicemail directly into engadget's voicemail inbox. Now, this is not something anyone outside Vonage could probably do (we hope), but it does point out the potential of spamming in many different communication channels as our connectivity becomes ever more decentralized.
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Posted by Ernest Miller
...continue reading.
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Posted by Ernest Miller
Apparently, once again, the major broadcast networks will be scaling back political convention coverage, according to The Hill (TV to snub conventions). As I've noted recently, I think the "news" coming out of the conventions should get a lot less coverage (Blogging the Political Conventions). However, I must confess a bit of schadenfreude when I read The Hill article. Read on...
...continue reading.
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Posted by Ernest Miller
There has been a lot of rightfully worried commentary about a recent decision by the US Court of Appeals for the First Circuit that found that intercepting and copying users' emails by an email service provider did not violate US wiretap laws. See: EFF (Online Privacy "Eviscerated" by First Circuit Decision); WIRED (E-Mail Snooping Ruled Permissible); and, Slashdot (Appeals Circuit Ruling: ISPs Can Read E-Mail). As EFF put it: The defendant in the case is a seller of rare and used books who offered email service to customers. The defendant had configured the mail processing software so that all incoming email sent from Amazon.com, the defendant's competitor, was copied and sent to the defendant's mailbox as well as to the intended recipient's. As the court itself admitted, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances." Read the 16-page decision (and 37-page dissent): US v. Councilman [PDF] or HTML.
Now I in no way want to de-emphasize the dangers to privacy that this decision represents. If intercepting email is not a violation of the wiretap act, then all sorts of internet privacy goes out the window. If this ruling is not overturned, Congress will have to act to protect all of our privacy.
However, the defendant in this case, Bradford C. Councilman, may not have done himself any favors by winning. The problem is, by convincing the court that the emails intercepted were in "electronic storage," the defendant has pretty much made the case that he is guilty of criminal copyright infringement. Additionally, he would also be liable for huge amounts of civil damages for willful copyright infringement as well. From the decision: According to the Indictment, on or about January 1998, defendant directed Interloc employees to write computer code to intercept and copy all incoming communications from Amazon.com to subscriber dealers. The Interloc systems administrator wrote a revision to the mail processing code called procmail.rc ("the procmail"), designed to intercept, copy, and store, all incoming messages from Amazon.com before they were delivered to the members' e-mail, and therefore, before the e-mail was read by the intended recipient. Defendant was charged with using the procmail to intercept thousands of messages. Defendant and other Interloc employees routinely read the e-mails sent to its members seeking to gain a commercial advantage.[emphasis added] Hmmmm....According to the statutes on criminal copyright infringement, 17 USC 506: Any person who infringes a copyright willfully either -(1) for purposes of commercial advantage or private financial gain, or The criminal copyright infringement indictment just about writes itself. Copying the emails is a clear infringement of the right of reproduction. Ordering employees to write a program to copy emails seems pretty willful to me. Finally, the infringement was done for purpose of "commercial advantage." Slam dunk. Interestingly, as long as the commercial value of the emails was greater than $2,500 (which is likely) then the criminal penalties for both infringement and wiretapping are equivalent.
Bonus. The civil penalties for willful infringement are much higher than one can usually get for wiretapping. I mean, heck, up to $150,000 per email copied! All Amazon has to do is sue.
The only problem with this theory, however, is that the statute of limitations for criminal copyright infringement is five years (which means you normally can't prosecute someone five years after the crime occurs). I know that the infringement started in 1998 and Councilman was indicted in 2001. However, these aren't enough facts to know whether or not the statute of limitations will preclude prosecution for criminal copyright infringement.
So, while this decision remains a serious threat to our privacy, if it can be shown that the interceptions were for "commercial advantage" then the Copyright Act comes to the temporary rescue (and perhaps provides even worse |
