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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August 31, 2004
Posted by Ernest Miller
Lost Remote makes a bold claim and is nearly right (TheKnot and Comcast's marriage): Your life changed last week. If you work in TV or on the web, your work life changed immeasurably. If you're a TV or web user, it changed nearly as much. Why? TV stations are now unneccessary.
Comcast and wedding website TheKnot.com have announced a new V.O.D.-only channel that will feature programming from The Knot on Comcast's digital cable.
So what?
So with one move, a website becomes a TV channel - without the messy (and expensive) need for a television station or churning out 24 hours-a-day of fresh programming. No more "feeding the beast" of all-day, all-night cable. They can put up what they have, and swap out the shows people aren't watching. [emphasis in original] Absolutely, and there is much more insightful analysis, but the problem I see with this is that it still leaves the cable company as a gatekeeper. True broadcatching bypasses such gatekeepers. I also don't really see cable companies opening up their services to all comers, as it would likely undermine their existing subscription models and relationships with major content producers. See, also, 500 Channels with Nothing On? Nah - No Channels At All.
Still, this is an important article to read and an important experiment to keep an eye on. Check out the comments too.
Read on for many other links and etc...
...continue reading.
Comments (0)
+ TrackBacks (0) | Category: Broadcatching/Podcasting
Posted by Ernest Miller
For very obvious reasons, when one considers the impact that the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) will have on technology, thoughts generally turn to digital technologies first. Digital technology will continue to grow in importance and be the substrate upon which much innovation over the next few years will take place. However, analog isn't going away entirely and will remain important in a variety of applications.
This is why it is important to recall that the MPAA has long had its eye on controlling not only digital technologies but analog as well. In a press release from February 2002, the MPAA made its goals clear, goals that have not changed since then, to my knowledge (If You Cannot Protect What You Own, You Don’t Own Anything!). The press release notes three goals: - To create a "broadcast flag" which would prevent broadcast programs exhibited on over the air TV stations from being re-distributed on the Net, which is a form of thievery.
- To "plug" the "analog hole."
- To stop the avalanche of movie theft on so-called ‘file-sharing" Web sites, such as Morpheus, Gnutella, etc. (the more accurate name would be ‘file-stealing’ sites).
Well, the MPAA has achieved goal number one, the broadcast flag. The INDUCE Act is ostensibly drafted to take care of goal number three, though whether it would actually accomplish this is highly doubtful. But what of goal number two?
Let's take a closer look at "Goal Two": This is technical jargon. Let me sort this out in plain English. All digital protection designs can only work in a digital environment, which is the environment of the Internet. When a digital signal comes down to a TV set in the consumer home, that TV set in 95% or more of American homes is an "analog" set. This means the digital signal is immediately transformed into an analog signal in order for the consumer to watch it. If the analog signal is then converted back to digital, it cannot be protected by any known protection device. This is called "the analog hole." One way to ‘plug the hole’ could be through a ‘watermark detector.’ The ‘watermark’ is an ingenious design, which commands the signal converter in the TV set to respond to the instructions on the movie. This can be accomplished through a concord agreed to by the Information Technology, Consumer Electronics and Movie industries.
Action: To reach this goal, Congressional assistance will be necessary. [emphasis in original] Might the INDUCE Act be used to close the "analog hole" in accordance with the MPAA's desires? I believe the answer is yes.
The INDUCE Act doesn't contain a "no mandate" clause. If content producers and some consumer electronic manufacturer's begin to produce devices that respond to watermarks in new analog outputs, wouldn't the INDUCE Act be used against those manufacturers who design non-watermark responding devices? Wouldn't devices that permit the analog hole to continue be "inducing infringement"?
Looks to me like the MPAA would be getting a two-fer with the INDUCE Act, ostensibly accomplishing two of their goals with one piece of legislation.
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)
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Posted by Ernest Miller
If you haven't noticed, I'm a big fan of machinima. So, I'm excited when companies promote and support its creation. In this case, the superhero-themed MMORPG City of Heroes is sponsoring a short film contest (City of Heroes: Film Festival Contest). The films don't have to be machinima, but they can be and I'm sure many of them will be. Attention all you budding Raimis, Spielbergs and Jacksons! The time has come to show us what you’re made of! The chance to demonstrate your cinematic skills by creating a City of Heroes short film has arrived. We proudly invite you to participate in our first ever Paragon City Film Festival!
Using game footage, animation, live action or whatever you can dream up, show us the city through the eyes of your hero or team. Take us on flights of daring; show us spectacular battles, heroic rescues or zany antics. Be the ultimate CoH film director by exhibiting your editing skills, creating your own exciting story, adding captions, music, voiceovers—be creative, for the sky is the limit (just make sure nothing in your film infringes any patent, copyright, trademark or other intellectual property right, or any privacy, publicity or publishing rights of any third party, or is libelous, obscene or otherwise contrary to law!). They even have instructions on how to record action from the game if you want to make machinima ( How to Demorecord).
Unfortunately, copyright is, of course, a major concern for those who sponsor these contests: Due to copyright music laws, if you’re going to “score” your cinematic masterpiece, you MUST do so with the musical pieces located here: ftp.coh.com/music/....
Feel free to combine music selections and/or splice them if you wish, but you may NOT add your own or use music created by someone else. For this same reason, you may record your own voiceover but copyrighted sound bytes from television programs, movies, etc are strictly prohibited. Film entries that violate intellectual property laws will be automatically disqualified from the contest! If you manage to survive the copyright gauntlet, there is (among other prizes) a nifty bonus: Not only that, but the winning movies will be featured on the game disc included in the Special DVD Edition of City of Heroes, being released this holiday season. One of the interesting features of this contest is that there are two categories: action and comedy. Drama remains underdeveloped, mostly because of the difficulties in using machinima to render complex emotional states in virtual actors, but I think a good machinima comedy (*cough* RedvsBlue*cough*) can be and is as good as anything on broadcast television or in theaters.
via Joystiq
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+ TrackBacks (0) | Category: Games | Machinima
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: Mediatrips
According to Mediatrips, a "mediatrip" is: an original visual aesthetic/narrative that samples content from film, television and/or other 1st generation sources to create a new media experience. It is a form of artistic, political and personal expression.... Technically, it is very easy to create a mediatrip. Of course, creating something of value is not.- Copy events from TV, Film or other sources
- Paste them into a video/media editor
- Remix the events to create your own mediatrip
A blatant inducement to creating derivative works if ever I saw one.
Heck, they are even sponsoring contests, which will futher induce people into violating copyright. And the rules are rather confusing when it comes to actually warning people about potential copyright infringements and even permit anonymity, which is a certain sign that illegal activity will be taken place, as we all know anonymity is only used by criminals. Finally, the prize money is to be awarded to EFF in the winner's name. Sheesh. How much more obvious can the intention to induce infringement be?
Well, there is the motto of the site: "sampling popculture is not a crime." Um, much of the time, it is. And if the INDUCE Act passes encouraging sampling will be illegal much of the time too.
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
Well, it is official. According to C|Net News, XM Radio has withdrawn their PC hardware version from the market as a response to the software known as NeroSoft TimeTrax, which permitted people to record from XM Radio to MP3 (XM Radio pulls PC hardware amid piracy concerns). TimeTrax has previously been featured here on Hatch's Hit List (Hatch's Hit List #30 - XM Radio to MP3).
Interestingly, according to the article, pulling the hardware off the market was not done at the behest of the RIAA: "We are very concerned about a variety of technologies that essentially transform performances into music libraries," RIAA spokesman Steve Marks said. "We have communicated our concerns to XM and other broadcasters and Webcasters, (and told them) that we'd like to work together with them to address technologies that hijack these performances."
Marks said the RIAA wasn't behind the discontinuation of the PCR.
"We've raised the concern generally," he said. "They've obviously decided to take this action on their own. We've identified for them the potential problems." Sounds like Stockholm Syndrome to me: The Stockholm syndrome is a psychological state in which the victims of a kidnapping, or persons detained against their free will - prisoners - develop a relationship with their captor(s). This solidarity can sometimes become a real complicity, with prisoners actually helping the captors to achieve their goals or to escape police. UPDATE 1955 PT
Educated Guesswork (Death to XM TiVo): OK, I can totally understand the objection that people will use this to build a local library of songs--not that I think that should be illegal, but I understand it--but this last paragraph is, as far as I can tell, total nonsense. The gating factor in song availability over KaZaA is unlikely to be the ability to get a ripped version of the song. It's not like there's any shortage of consumers with Britney Spears CDs and CD-ROM drives. In fact, I would expect the availability if this sort of technology to decrease the amount of file sharing by making it easier to collect a library of known-to-be-correct songs. Indeed, and even if your rip the songs, won't you still be paying subscription fees?
Techdirt (Is XM Bending Over Backwards To Make Satellite Radio Less Useful?): It's quite a world when it's considered a problem that someone has made your service more useful. The note at Broadband Reports also claims that XM is considering removing USB ports from future equipment for the same reason. Both of these seem unconfirmed at the moment, so it would be nice if there were some real confirmation on either rumor. However, the satellite radio business is in a tough position. For all the success they've been claiming in signing up customers, they're nowhere near profitability. Their capital costs are incredibly high, and the thing they need, more than anything else, is more subscribers. Shutting down tools that make their offering more compelling just means they're making their job that much more difficult.
Comments (1)
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Posted by Ernest Miller
In an interview with ground-breaking Oddworld creative director Lorne Lanning, VFX World explores how processing power is changing digital animation (Oddworld’s ‘Real’ Reel World). Of particular interest (read the whole thing for more) is this bit on machinima, something I've been touting for some time: The Machinima Movement
One of the most interesting developments Lanning cites is Machinima, which he characterizes as a kind of virtual filmmaking environment. “Machinima is not as much a technology as a genre of game engines producing linear footage. I'm sure that — just like virtual reality — there will be people claiming that they own it. However, no one does.”
To illustrate how Machinima might apply to his company, Lanning offers, “Let's say Oddworld wanted to do a 90-minute, direct-to-DVD movie. If we wanted to do it with pre-rendered CG, we’d probably be looking at a $30 million-dollar budget, even with very aggressive economics. If instead we went the Machinima route, and ported it to the PC and took advantage of 2MB RAM for texture mapping instead of 64MB, then we could do 90 minutes for $6 million. And what would come out of that would be far more epic than anyone would expect. We could generate enough quality for HD.
“This also lends itself to producing a series. If the first 90-minute piece using Machinima cost us $6 million, the second one becomes a serial. It’s like having the sets built for a TV show. And the sound cues are in the sampler for the audio guys. We know what this show is, and now we’re running episode after episode. For the first one you're paying to build all the databases. The second one is derivative. In 10 years, it will be the same database, except it will be realtime, and it will be used for film.” (More information about Machinima can be found at www.Machinima.org.) [link and emphasis in original] Coming soon to a broadcatcher near you.
The Slashdot post where I found this article has some very informative links as well (Lorne Lanning On Real-Time CG & Machinima).
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Posted by Ernest Miller
Denise Howell relates an anecdote in which the wonders of VoIP demonstrate one of the myriad changes in our near future (PSA Re Law Firm Voicemail): Note to anyone who might be contemplating calling a law firm and leaving a voice message that might be even remotely considered, shall we say a novelty:
More and more firms are using voicemail integration systems like Cisco's Unity Messaging. The upshot of this is voicemail becomes automatically and immediately freed of the phone, showing up as a .wav attached to the recipient's email. (I'm now so used to receiving voicemail this way I've all but forgotten how to get it off the phone itself.) From there, the message becomes trivially easy to forward or upload, whereupon the analog circle is closed as audio bits become widely circulated paper. [links in original] Of course, you don't need fancy voicemail integration systems; this capability will be default for VoIP systems very soon, if it isn't already.
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+ TrackBacks (0) | Category: Telecomm
August 30, 2004
Posted by Ernest Miller
There is a new law, tech and policy blog in town with a distinctly libertarian pedigree, The Technology Liberation Front. Read their introduction (Welcome to the TLF !): This is why this site is needed. We aim to report on, and hopefully help to reverse, this dangerous trend of over-regulation of the Internet, communications, media and high-technology in general. We will not hide our love of liberty on this site and we will take every opportunity to castigate those who call for expanding the reach of government into these fields. They have twelve listed contributors ( About Us). The more the merrier.
In any case, Adam Thierer asked a number of different people to comment on his recent post on the TLF concerning DRM (Is DRM the Devil? The Debate over Digital Rights Management, Trusted Computing and Fair Use in Copyright Law). It is a debate I've engaged in often, so read on for my response ...
...continue reading.
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+ TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management
Posted by Ernest Miller
Last Wednesday, the Syracuse Post-Standard published an article lambasting the authority of Wikipedia because it is user-edited and anyone can make a change to its content (Librarian: Don't use Wikipedia as source).
Techdirt took the article to task for misunderstanding how Wikipedia works (Misunderstanding Wikipedia) There's just something that seems to freak people out about Wikipedia, when they can't fathom the idea that "the masses" could produce something of value by simply being able to correct each other, allowing them to build something much more beneficial and much more useful than an expensive encyclopedia edited by just a few people. The columnist ends his piece by stating: "you need to be careful about trusting what you read," while taking this email from a random librarian completely at face value. Techdirt then contacted the author of the offending newspaper article with more information about how projects like Wikipedia work and why they can be authoritative. However, that exercise apparently collapsed into sheer invective on the part of the newspaper writer. This seems odd since the author of the original piece, Al Fasoldt, is a long-time tech reporter. In any case, see Techdirt's version of the exchange ( Who Do You Trust, The Wiki Or The Reporter?).
Joi Ito has chimed in with one explanation of Wikipedia's resilience (Wikipedia attacked by ignorant reporter): The fact that anyone can edit the pages appears to be why people like Mr. Fasoldt question its authority, but that is that exact reason that it has authority. Any comments that are extreme or not true just do not survive on Wikipedia. In fact, on very heated topics, you can see the back and forth negotiation of wordings by people with different views on a topic until, in many cases, a neutral and mutually agreeable wording is put in place and all parties are satisfied. Tradition authority is gained through a combination of talent, hard work and politics. Wikipedia and many open source projects gain their authority through the collective scrutiny of thousands of people. Although it depends a bit on the field, the question is whether something is more likely to be true coming from a source whose resume sounds authoritative or a source that has been viewed by hundreds of thousands of people (with the ability to comment) and has survived. Speaking of which, Techdirt challenged Fasoldt to make some factual changes to the Wikipedia and see how long untruths could survive. Fasoldt has not taken the challenge, but Alex Halavais, an Assistant Professor of Communication and the Director of the Masters in Informatics program within the School of Informatics at the University at Buffalo, has ( The Isuzu Experiment): No matter which side of the debate you find yourself on, this sounds like an interesting experiment. So, I have made not one, but 13 changes to the wikipedia site. I will leave them there for a bit (probably two weeks) to see how quickly they get cleaned up. I’ll report the results here, and repair any damage I’ve done after the period is complete. My hypothesis is that most of the errors will remain intact. Nope. According to Halavais " all [the changes] were identified and removed within a couple of hours. I could have been a bit trickier in how I made changes; nonethess, I am impressed." There are also some great comments on the ethics of the experiment as well as suggestions for future experiments.
One place this debate has been discussed with great insight is Corante's own Many 2 Many which also provides a wealth of linkage (Wikipedia Reputation and the Wemedia Project). In addition to the insight, there is announcement of a cool new project for journalism schools and media centers Which brings me to an lingering thought — that explicitly codifying reputation introduces a cost which can constrain commons-based peer production. Wikipedia was never supposed to work, somehow does because of good club theory and transaction costs, and has gained a reputation as a resource. Introducing reputation for contributors or articles is the greatest risk to the Wikipedia community. Getting a base study on factual accuracy can help inform this decision as well as educate the public on how to use and participate with this commons resource.
I’ve been quitely forming a group of journalism schools, media centers and experts to engage in the Wemedia Project, which begins with a formal Wikipedia Article fact checking excercise and publishing findings. The USC Annenberg Center has already announced their support and next month we will begin the collaborative research process within a Socialtext Workspace. Without getting into defining truth, you can separate issue of fact, value or policy. The approach is to apply a formal fact checking process to a sample of articles to gain a baseline measure of factual accuracy and explore issues of reputation. [links in original] Read the whole thing.
Teleread also some interesting thoughts on the issue, though reputational changes are going to be tough ones to figure out (Wikipedia vs. bashers).
One aspect of this that is interesting to me, is the distinction between the authority of a relatively anonymous collective in contrast to the authority of named bloggers. For example, Dana Blankenhorn argues that transparency is a key element to the authority of bloggers (Transparency Makes Blogs Believable): This transparent relationship is at the heart of blogging credibility. J.D. Lasica tried to explain this to the "media industry" in a recent OJR piece...- Transparency of motives
- Transparency of process
- Transparency of expertise, and
- Transparency on mistakes are all keys to success, he writes.
Absolutely. Transparency is also critical in Wikipedia, but the emphasis is different. Process and mistakes (I would call it "corrections") are emphasized, rather than motives or expertise.
Finally, Mary Hodder, who is now working like a demon for Technorati, has an intriguing post that unintentionally ties these two concepts (blog authority and wikipedia authority) together (Digital Ethics II.. and the New Commodity In Online Media). Her thread regards a debate about digital ethics, which is worth following as well.
Fascinating reading, all of it.
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Posted by Ernest Miller
What is it with copyright lawyers and fairy tales? First, we have Andrew "Werdna" Greenberg, Vice-Chairman of the Intellectual Property Committee for the IEEE, writing fables about abusive copyright laws (A Copyright Fable Relevant to the INDUCE Act (IICA) and Other News and INDUCE Act (IICA) Roundup - Friday the 13th). Now, C.E. Petit is waxing fanciful about a recent copyright work-for-hire case (Red Hot Dancing Shoes).
Normally, I consider work for hire cases as interesting as, well, something that isn't very interesting. However, the case Petit discusses is one that many technologists should be concerned about because many of them might find themselves in similar positions: Once upon a time, in a metropolis far closer than I'd prefer, a famous dancer—you'd know the name, even if you don't pay much attention to dance—decided that she needed the limited liability and tax advantages of a corporate structure. She therefore incorporated her thriving business, and became the owner, chief executive, employee, cook, and bottle washer. She continued her successful choreography for many years thereafter.
Then she died. And thus, a lawsuit was eventually born.
The corporation (which had split, and changed names) continued to exist, and was not owned by her heir. Both the corporation and the heir wanted to control the copyrights in the choreography. The evil fairies lawyers convinced each side that they were in the right. And so, they took their dispute to the Court at the Castle on the Hudson. Really, the Post Office on the Hudson; but that's a different tale, involving dwarves, architects, extortion, and nastiness that doesn't belong in a bedtime story—even one calculated to scare the living daylights out of the listeners, like this one. The case is Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. [PDF] and was decided by the Second Circuit on August 18th.
In the end, many of the copyrights stay with the corporation and don't go to the heir. Petit pulls out one important aspect of the holding: [Appellant argues that] where a corporation is formed for the purpose of fostering a supportive environment in which an employed artist will have the opportunity to create new works, the default rule should leave the copyrights in the new works with the employee, and place on the employer the burden of pursuing a contract to obtain her copyrights. Whatever the intrinsic merit of such an approach, we conclude that its adoption is a matter of legislative choice for Congress in the future, not statutory interpretation for a court at present. Why is this important to technologists? Petit explains: It's time for the moral now. Why should techies, and for that matter anyone else, care about fifty-year-old choreographic notation? Principally because programmers, and many others, who create intellectual property frequently resort to creating small corporations without adequate legal counsel....Now, children, it's not bedtime yet. I want you all to write fifty times "I will not neglect to clarify copyright ownership in employment agreements" on the inside of your eyelids.
Comments (4)
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Posted by Ernest Miller
Lots from Adam Curry today. First, he points to a couple of new domain registrations that would be of interest (RSS Progress?):
http://rssporno.com/
http://rsspornfeeds.com/
Neither has content right now and it is sort of hard to figure out who is behind them, exactly, but worth keeping track of probably. I definitely think that porn has a lot of potential as content for broadcatching - it might just be broadcatching's first killer app (RSS, BitTorrent, Broadcatching, Porn, Business Models, and Banned Music).
Curry also sees a lot of potential for broadcatching for people with disabilities (iPodder Opportunity): It wouldn't surprise me if there were some grants waiting to be tapped for technological improvements for media distribution for peopel with disabilities. Nice that everyone can benefit from these improvements. [emphasis in original] I completely agree that there is a great deal of potential here. Curry also points to Assistive Media, a group that could really take advantage of broadcatching, I think. The mission of Assistive Media is to heighten the educational, cultural, and quality-of-living standard for people with disabilities and help achieve independence and become better integrated within the mainstream of society and community life in general. Assistive Media accomplishes this by providing free-of-charge, copyright-approved, high caliber audio literary works to the world-wide disability community via the Internet effectively, inexpensively, and efficiently.
Finally, Curry points to an article in The Inquirer concerning iPodder (Ipodder good fodder for MP3 heads) This is a creative synthesis of three different technology pieces. MP3, the oldest piece, can be used to record just about any audio source, from music files to radio programs and other audio content. RSS, a "lightweight XML format," has been kicking around for a while as a way to syndicate/distribute headlines and other web content (i.e. like MP3s) between sites, as well as between web sites and end-users. Finally, the iPod is the hip little device that Apple is selling like mad.
Basically, people now have a new way to get things to listen to on their iPods, and more importantly have those things automatically delivered to their desktop computers on a regular basis through RSS. To date, when people want to get new songs or other audio files for their iPod, they have to go hunting for them. The iPodder program allows you regular subscriptions to favorite programming. For example, Mr. Curry is distributing "The Source Code," his daily 15 to 25 minute pontifications on desktop technology in MP3 format via RSS. Anyone with a favorite "voice" or radio show distributed on a regular basis that is packed into MP3 and distributed into RSS can now get those "shows" loaded. The author is pessimistic, however, believing that Curry is an unfortunate number of years ahead of the curve. I agree he is ahead of the curve, but that is a good thing. Sure, the major media doesn't really understand what is going on, but that will keep them from screwing it up from the beginning. Remember "Active Channels" ( RSS + BitTorrent Roundup - Broadcatching Isn't MS Active Channels)?
Over on Darknet, JD Lasica points out a Barron's article that points out some of the more glaring weaknesses of traditional radio and glimmers of the future (The death of radio): Across the country, listeners are changing how they choose to receive music and news and talk radio. They are turning to portable music players like Apple Computer's iPod, streaming audio over the Internet and the emerging field of satellite radio to hear what they want, when they want to hear it. Of course, as broadcatching develops there will be numerous debates about many of the details, and Lucas Gonze gets into one of those debates ( RSS Enclosures and Playlists): On my point "It causes users to download big files that they will never listen to or watch, creating pointless overload on web hosts," Dave says: "This is not a criticism of enclosures per se but of using aggregating enclosures on a feed where you don't want all the files. I'm aggregating 8 feeds now with get_enclosures, and all of them are ones with a high probability that I want to listen to everything."
But you, the subscriber, have no control over whether there are enclosures. If some third party puts an enclosure in their feed it
makes no difference to you, and a reasonably popular third party can easily DoS a host. RSS is a blunt instrument. Once people subscribe to a feed they let the bot do the work -- if there are enclosures involved, it doesn't make subscribers more attentive.
I blogged a proposal that auto-download via enclosures should require an opt-in from the provider site on 8/18. The other solution that I know of is swarming a la BitTorrent, but that requires the rights holder to have allowed redistribution, which is fairly rare. On a large scale, the answer is up to the rights holder: either they don't care about the cost of hosting or they allow redistribution in order to cover the cost. Take your pick, there are no other options. [link in original] If you're interested in some of the details of future broadcatching implementation, be sure to read the whole thing.
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Posted by Ernest Miller
The San Francisco Chronicle has a lengthy article about Hollywood's attacks on various technologies, including a lengthy bit on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act), as a followup to the Grokster decision (Reining in tech: Learning from the Napster case, the entertainment industry is trying to block new technology before it takes off). There is an interesting quote from Fritz Attaway, executive vice president for government relations for the MPAA "If we can't ban bad behavior and we can't ban bad technology, what is it we're supposed to do, stand back and let people steal our product?'' Attaway said. I thought Hollywood liked the technology, thought it was good technology that some devious companies abused?
UPDATE 1005 PT - Jason Schultz responds
Jason Schultz on Attaway (Fritz The Hack (political, that is)): First, I'd hardly call suing over 4,000 individual file-sharers "stand[ing] back and let[ting] people steal our product." At $2,000 to $11,000 a pop, these suits have have a very real impact on the lives of the unlucky defendants.
Second, the quote reveals the MPAA approach to every problem: either pass laws to ban behavior or pass laws to ban technology. Innovation, ingenuity, competition -- those are for suckers. More laws and more lawsuits, that's the Hollywood way. Cut past the consumer and go straight to Congress. Oh well, at least they're finally being honest.
Late last week IT Business Canada published an anti-INDUCE Act op-ed by playwright Dave Webb, who fears pencils being put on Hatch's Hit List (Induce This!): The pencil I used was a Dixon Ticonderoga 1388-2/HB. (Ah, how I love 2/HBs. All pencils should write so smoothly.) Came with about a dozen friends in a plainish box that in no way indicated this product could be a weapon of copyright infringement. He also points out the hypocrisy of Sen. Orrin Hatch's protection of gun manufacturers from liability for the uses to which their weapons are put: It is wrong -- counterproductive, dangerous and assinine -- to punish technology for crimes committed by people. As a Republican, I'm sure Mr. Hatch would agree, having given it a second thought. After all, didn't he introduce legislation in March 2000 to protect firearms manufacturers from lawsuits arising from crimes committed with their guns?
After all, technology doesn't pirate copyright material. People do. The INDUCE Act Blawg has more ( Technology doesn't commit infringement, people do!).
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
Promote the Progress has a very interesting post on Kinko's copyright policy (Kinko's won't help you infringe...): I was at Kinko's this week, and grabbed a brochure entitled "Copyrights & Trademarks." Apprently, Kinko's "want[s] you to be aware of the legal issues involved when copying trademarked, copyrighted and restricted materials."
According to the brochure, Kinko's "requires that customers receive written permission from the...owner before reproducing any...material." How do you get permission? Kinko's will help...the brochure includes a "Copyright/Trademark Permission Request Form." Basically, a person who wants to make copies provides all of their personal information, and indicates the number of copies desired and the intended use and distribution of the copies. Give the completed form to a Kinko's associate, and they will give you a complimentary fax to the copyright/trademark owner. No copies allowed until the form is sent back.
I didn't think to do this while I was at the store, but I think I'll ask a few Kinko's associates how often they have received completed forms (and given the complimentary fax). [emphasis in original] Anyone have experience with this complimentary rights clearance fax process?
Of course, we can thank what I consider a bad court decision for ridiculous requirements like this: Basic Books, Inc. v. Kinko's Graphics Corporation. The case basically found the copying center liable for infringement for providing copied course packets to students.
I've never really understood why the copyright holders didn't sue either the professors or the universities involved. It was easier, sure, but it seems to me that the copying house served more as a neutral distributor, without the expertise to make determinations of whether the course packets given it by professors were infringing or not. How are the minimum-wage employees of a commodity business supposed to weigh the fair use factors when determining whether 25 pages copied from a book for purposes of educational use are a "fair use" or not?
Why shouldn't the copying house be held non-liable and the professors and/or universities be held liable for the infringement?
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Posted by Ernest Miller
INDICARE (INformed DIalogue about Consumer Acceptability of dRm solutions in Europe) has an editorial that does a pretty good job of summarizing the entire JibJab saga (Knock Out by Copyright Expiration: The JibJab Media Inc. v Ludlow Music Inc. Copyright Affair Watched from a Distance). The abstract: This Editorial is about two intertwined success stories, and a third derivative one about copyright. It is about the success of Woody Guthrie’s song “This Land is Your Land”, and the success of JibJab Media’s web animation “This Land. A parody of Woody Guthrie’s”. Our focus is on the copyright thread, which runs in parallel and ties both stories together. Although at the time of writing the case seems to be settled, many relevant questions remain open.
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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: FeedBurner
Let's face facts: many bloggers infringe copyrights. Often.
Fair use, schmair use. Bloggers copy works that don't belong to them, for example, large swaths of copyrighted newspaper articles with minimal commentary or criticism. Blogs are a veritable Wild Wild West of piracy.
One of the more devious aspects of blogging is the RSS feed that provides notification when new copyright infringements are available. With the use of "news readers" copyright violaters can easily keep track of the latest violations on hundreds of websites.
And now we have a company, FeedBurner, that makes RSS feeds even more efficient and effective at violating copyright (About FeedBurner): FeedBurner is an RSS/Atom post-processing service that allows publishers to enhance their feeds in a variety of interesting and powerful ways. By republishing their feeds through FeedBurner, publishers gain detailed feed statistics, maximum feed format compatibility, "shockproofing" to absorb bandwidth spikes, and more. Absorb the bandwidth spikes of new infringement, morelike.
For some reason, perhaps because they actually want to encourage copyright infringement, FeedBurner's terms of service says nothing about users of the service violating copyright law. There is no warning that publishing an RSS feed might be a violation of the exclusive right of distribution. As we all know, there must be warnings about infringement whenever they might occur. Without constant warnings, people are likely to violate copyright by accident, or something.
Heck, anyone can use this service with no real accountability, for free - how much of an inducement is that?
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
Slashdot points to an extremely interesting Google Gmail hack - the Gmail File System (GmailFS - The Google File System): GmailFS provides a mountable Linux filesystem which uses your Gmail account as its storage medium. ... GmailFS supports most file operations such as read, write, open, close, stat, symlink, link, unlink, truncate and rename. Most of the comments on Slashdot deal with the fact that this hack probably violates Google's terms of service and may result in users having their accounts abruptly terminated. However, there are some insightful ones ( Re: GoogleOS).
More importantly, this does point towards another piece of the internet operating system puzzle (or, more specifically, Google Operating System).
Gee, I wonder if the advent of a Google Operating System will have any impact on copyright law, telecom regulation, etc., etc., etc...
UPDATE 2200 PT
On a somewhat related note Discourse.net (GoogleWatch Says 'Google Is Dying').
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+ TrackBacks (0) | Category: Copyright | Internet | News | Open Standards | Telecomm | Tools
Posted by Ernest Miller
This past weekend WIRED published an article updating the status of WIPO's Treaty for the Protection of Broadcasting Organizations (Broadcast Treaty Battle Rages On). I'm glad that WIRED is keeping this atrocious bit of international dreck in the news.
However, I have to take issue with a few statements in the article. For example, The idea that broadcasters should have rights enabling them to combat signal piracy is relatively uncontentious. Uncontentious among who? Frankly, I find the entire idea of the treaty absurd. We already have an entire category of law devoted to protecting against "piracy." It is called "copyright."
So, let's look at the example in the article of the terrible consequences of not passing this absurd treaty: The treaty's primary importance, he said, is to give broadcasters a way of protecting against signal piracy. If a broadcaster in, say, Belize has paid for the right to broadcast the Olympics and takes its feed from NBC, it needs broadcast rights to be able to get an injunction against other stations that might copy the feed and send it out. Well, gee, if I were to copy Belize's Olympic broadcasts and put them on the internet, could I do so without legal consequence? Would I be able to destroy Belize's fragile broadcast industry with impunity? Hmmmm ... let me think .... hell no.
And what would be the law, supported by international treaties, that would keep me from taking bread from the mouth of Belize's broadcasters? That would be copyright law. If I were to rebroadcast the Olympics on the internet, NBC's lawyers would set world records sprinting to the courthouse with lawsuits and requests for preliminary injunction.
And if Belizian broadcasters can't bring a copyright lawsuit, then maybe what we need is Belizian copyright reform and not a new international treaty.
So, explain to me again why we need this new law to protect broadcasters? I haven't figured out why it is uncontentious yet.
Teleread believes that "WIPO" stands for "WIPe Out individual rights" (Hollywood-bought broadcast treaty: No noises from 'populist' Sen. Edwards, presumably).
Read the current draft of the treaty here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].
My take here: The Broadcast Flag Treaty - Draft Available.
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August 27, 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: JANE Magazine
Japan's copyright industries have been suffering from a rather unique form of infringement according to the BBC (Japan's 'digital shoplifting' plague): Japanese bookstores are set to launch a national campaign to stop so-called "digital shoplifting" by customers using the lastest camera-equipped mobile phones.
The Japanese Magazine Publishers Association says the practice is "information theft" and it wants it stopped.
It is the kind of thing that most Japanese young women wouldn't think twice about doing.
They might spot a new hairstyle or a new dress in a glossy fashion magazine and they want to know what their friends think - so they take a quick snap with their mobile phone camera and send everybody a picture.
But the publishers of those magazines feel they are being cheated out of valuable sales. So far, we have been spared this plague in the US.
However, JANE Magazine is doing its best to import and induce such copyright infringement with a promotion they are running (JANE Talks Back):
You won't want to flip through the September issue of JANE without your camera phone. There's a ton of freebies, sweepstakes, MP3s and cool stuff in it for you....Want a refresher on how to play with Mobot and JANE? Oh relax, it's easy: - Grab your camera phone and the SEPT issue of JANE
- Take a picture of ANY full page ad and send it to jane@mobot.com
- Listen up as JANE Talks Back...you could hear good, good things
They are literally training people to use their cameraphones to snap picks of magazines and distribute them via email! Once trained to snap pics of pages in magazines with the increasingly ubiquitous cameraphone, does JANE think these people will stop?
Thanks to JANE, the magazine industry will soon be the smoking ruin that once was the music industry in the US.
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
Over on LawMeme, James Grimmelmann notes my 100th post on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) and picks five of his favorite pieces (Ernie Miller's 100th INDUCE Post). Grimmelmann has been doing a great job maintaining an index of my posts: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
The conservative Heritage Foundation has published a short study on the effects of filesharing on music sales and determines that something should be done, but that the INDUCE Act is overbroad (Internet File Sharing: The Evidence So Far and What It Means for the Future, also available as a 6-page PDF) Policymakers can help to clarify rights by amending the law so that making copyrighted work available to the general public on the Internet is clearly an infringement and by allowing the Department of Justice to bring civil suits. Any changes in the law should be narrowly targeted, however, and should focus only on those who actually misappropriate protected works. Some current proposals, while perhaps well-intended, appear to swing too broadly.
One bill--S. 2560, introduced by Senator Orrin Hatch (R-UT)--would make liable anyone who "intentionally aids, abets, or procures" a copyright violation. This language could cover a huge range of legitimate activities. Intel pioneer Les Vadasz argues that these prohibited "activities" could even cover the production of microprocessors used to power PCs. You can read Vadasz' op-ed here: Les Vadasz on the INDUCE Act (IICA): A Bill That Chills.
I do take issue with the study's assumption that music producers can't compete with free. Sure they can. They can compete on service. Easy access, open APIs that permit all sorts of functionality, guaranteed good rips, etc., can all make legitimate services more attractive than unreliable free systems.
via The INDUCE Act Blawg (go visit for more good posts)
Finally, InfoWorld has an article on the "Don't Induce Act" (Industry groups propose alternative to copyright bill).
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Posted by Ernest Miller
Seth Finkelstein posts some clever thought about how terrorists might flummox up the "no-fly" lists (Data corruption attack on terrorist no-fly list?): The idea is simple: Take a low-level operative, perhaps one who has outlived his usefulness. Send him on a mission that is likely to get him captured. The key idea isn't the mission himself. Rather, have him carry phony "valuable intelligence" documents, with faked ID's in various alias, to get those names added to the no-fly list. Finkelstein even alludes to getting the names of prominent jurists on the list. What would the justices on the Supreme Court think of the constitutionality of the no-fly list if they were constantly hassled everytime they tried to fly?
As amusing as that thought is, however, the real question is why would terrorists want to do this? Why would they want to flummox up a mostly ineffectual system that give the illusion, but not the reality of security? Sure, it might increase the costs of the system, but would it be worth it?
I do agree with Finkelstein on his final point though: While this is of course a very old idea in general, the potential usage of the no-fly list, by terrorists, for creative disruption, has probably been under-examined.
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August 26, 2004
Posted by Ernest Miller
This may not seem like a big deal, but it is a serious threat to online speech.
On WIRED, Xeni Jardin has an article concerning changes to a little-known anti-child porn rule codified at 18 USC 2257 (Porn Law Draws Adult Sites' Ire): Under Title 18, Section 2257 of the U.S. Code created under the Child Protection and Obscenity Enforcement Act of 1988, producers of adult magazines and movies must make identification documents available to federal inspectors on demand.
But the suggested changes would bring an extensive array of new responsibilities to webmasters. While the current law applies to "primary producers" -- photographers, filmmakers and others who actually create adult material -- the new changes would affect "secondary producers," such as websites, that distribute content created by other companies. The result could have far-reaching consequences for the entire adult industry, but it would have a particularly harsh impact on online companies. [link in original] Read the proposed modifications here: [Federal Register: June 25, 2004 (Volume 69, Number 122)].
The record-keeping regulations may not seem strict, but considering the quicksilver nature of the pornography business, can actually be quite onerous and do little to protect the children they are ostensibly aimed at. As one anonymous commentator notes, this law basically makes it easy to shut down online porn companies (or even porn bloggers) they don't like: "Unlike enforcement of obscenity laws, which require vetting of community standards, this is 'yes or no, do you have the documents?' for webmasters," said one technology provider close to the matter who requested anonymity. "This is a much more efficient way to wipe out online porn, a goal Ashcroft has already stated." I've actually sort of expected this sort of crackdown for some time. I wrote about this law back in 2002 on LawMeme: Little-Known Statutory Threat to Online Pornography: 18 USC 2257 is a real danger to publication on the Internet. This little known aspect of the federal anti-child pornography laws (which include 18 USC 2251-60), requires those who produce visual depictions of actual sexually explicit conduct to maintain records about the identities and ages of the performers. Those who don't are subject to 2 years in jail for a first offense. This law never made any sense, but its burdens on speech were relatively minor when pornography was generally produced for profit. Now that amateur pornography is readily distributed via the Internet, these record-keeping requirements substantially burden constitutionally-protected speech. This is a statute whose enforcement should be carefully watched. [link, italics in original] I stand by my warning of two years ago. We need to watch enforcement of this statute.
Bonus: As I mentioned before, "I believe there is a reasonable argument as to why 18 USC 2257 violates the copyright clause. Any guesses as to why I might think that?"
UPDATE 2030 PT
Thoughtful comments on this issue from Christian Libertarian fallinggrace.com (DoJ Proposes Unethically Attacking Porn Through Ambiguous Regulations).
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Posted by Ernest Miller
The Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) is getting a lot of attention recently and there are many stories of interest.
There are a passel of stories discussing the Don't Induce Act.
The Register notes the narrowly drafted alternative and then goes after Sen. Orrin Hatch (R-UT) (Major telcos and device makers go after Induce Act): So what made Hatch turn against the technology crowd?
Well, in 2001, the RIAA managed to convince Natalie Grant to belt out one of his self-penned religious tunes called "I Am Not Alone." A short while later Hatch moved to the music labels' side. (Hatch has since gone on to sell tens of thousands of dollars worth of his songs every year.) As usual, Techdirt is succinct as well as accurate in description and analysis ( Time For The Don't Induce Act).
WIRED gets reaction from a representative of the American Library Assoc. (Copyright Bill Needs Big Changes).
Slashdot has a typical discussion (Alternatives To The INDUCE Act).
USA Today publishes an AP wirestory that quotes Sarah Deutsch, associate general counsel for Verizon a bit (Tech firms craft alternative to anti-piracy bill).
In other news...
Last week, playlist guru Lucas Gonze surprised me by coming out in favor of the INDUCE Act, then I read what he actually wrote (Mainly I like the INDUCE act): The copyright extremists have made a big mistake in writing down their goals in such clear language. Ordinary people are horrified, as they should be, and as they weren't before. For the first time since the Napster panic mainstream journalists are recognizing that copyright law is not a simple issue of stealing. If the act is passed and goes to court, courts are very likely to further clarify that point, eventually creating a body of law clear enough for technologists to make it through the day without a bail bondsman. INDUCE is extremism in the service of moderation.
In the short term, though, programmers would obviously have to follow the biologists overseas, since our field would be temporarily against the law. WIRED, discussing the pressure to pass some bill in these final weeks of the Congressional term ( Induce Act Draws Support, Venom). Read the whole thing.
TechNewsWorld has somewhat good news, quoting Senate aides as saying the bill is unlikely to pass this year (War Over File-Swapping Continues): "Senate aides said the letter doesn't mean that the senators have given up on their bill, although final passage this year is unlikely given that it is an election year and Congress has much unfinished work left to do. 'This was a step contemplated from the beginning,' one aide said. 'It's another step toward getting a bill through Congress'." 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: Email Forward Function
So there I was, innocently sending and receiving email back in 1975. Then, one day, there is this program available called "MSG" that has a new function called "forward." Using that function you can take an incoming email message and easily copy the whole thing to send to someone else.
What was John Vittal thinking?
Clearly, the "forward" function he added had virtually no other purpose than copyright infringement. With a single keypress, one can violate both the exclusive right of reproduction and distribution. Some people don't mind this infringement, but many others have been quite upset that "private" (and copyrighted) emails have been indiscriminately forwarded. Without the "forward" function, which makes such infringement so easy, it is likely much of this infringement would not have occurred. If people had to laboriously re-type messages in order to send them to someone else, many people would not do so.
Furthermore, the "forward" function sits there at the top of the email screen begging to be used. I don't see how people can resist its allure. Indeed, my inbox today is full of forwarded emails.
Even worse is that there is no warning. When one chooses to use the "forward" function, there should at least be a copyright infringement warning dialog: "Forwarding email may be an infringement of copyright. Proceed? (Y/N)" Without such a dialog, there will be many innocent infringers, who might not realize that forwarding email can be a violation of copyright. Think of the children turned into criminals by this insidious functionality!
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
There has been a great deal of discussion about the Inducing Infringement of Copyrights Act's (IICA, née INDUCE Act) effects on domestic innovation and even the fact that investment will likely move overseas in the face of the INDUCE Act (Go Ahead with the INDUCE Act - A View from Overseas). However, one likely effect of the INDUCE Act has been mostly overlooked: the fact that many researchers and scientists may refrain from visiting these shores in order to avoid INDUCE Act lawsuits.
Imagine that you are a scientist or researcher in some foreign country. Your research deals with computer science, which means that you write programs that frequently copy things. Heck, you might even be directly involved in figuring out more efficient protocols for distributing content, like peer-to-peer filesharing programs. What you are doing is perfectly legal in your country, indeed, they even encourage such research with grants and the like. However, Hollywood is not nearly as happy with you and would love to sue you for your research under the INDUCE Act.
But, what can Hollywood do? What you're doing is perfectly legal in your own country. They can't sue you there. Simply publishing research on the internet will probably not be sufficient "contact" to haul you into a US court, and, as long as you stay home, how are they going to serve you with process?
Then, you get an invitation from colleagues to visit the United States and present your "inducing" research at a conference. What do you do? What do you do?
Well, one thing is, you might turn down the invitation. The reason is that you don't want to be served with process as soon as you pass through customs and be subjected to an INDUCE Act lawsuit. It is quite possible that presenting your research (and distributing proof-of-concept programs) at a conference in the US will be sufficient jurisdiction for a case to be brought. You could blow off the case (leading to a default judgement) or defend it (but that will quickly grow very expensive, especially for someone on an academic's salary).
If a judgement is entered against you, it will probably include both monetary damages and an injunction. Enforcing the judgement will require a foreign court to agree. That may not happen because what you are doing is legal at home, but a foreign court might enforce the judgement; you can't be certain it won't. In any case, you will have to spend money to defend yourself at home, which can be very expensive.
Even if the foreign court doesn't enforce the decision, you may still have an injunction against distributing your proof-of-concept program in the US. So, the next time you visit the US to discuss your research with colleagues, you might be paid a little visit by Federal Marshalls, who will seek to enforce the injunction, violation of which is a criminal offense. Unlikely, but possible.
So, as a foreign researcher in fields Hollywood doesn't like, will you visit the US to discuss your research?
We've seen this sort of chilling effect before with the Digital Millennium Copyright Act, where foreign researchers and developers have gotten in trouble on visits to the US, such as Dmitry Sklyarov. While Skylarov's case was a criminal one, the possibilities of being the target of a civil suit will also be a significant disincentive to visiting for many.
Nor has Hollywood shown itself particularly wary of threatening researchers for presenting at conferences. Ask Ed Felten about the SDMI threat letters.
If the INDUCE Act passes, I can imagine that many foreign scientists will become quite wary of visiting the US to share the fruits of their research. Thanks, Sen. Hatch!
A final note. I would just like to thank James Grimmelmann for maintaining (on LawMeme) an index of my postings on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). According to the index, this is the 100th posting (The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act). Wow, that is a lot of postings on a single topic in such a short period of time.
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Posted by Ernest Miller
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Posted by Ernest Miller
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+ TrackBacks (0) | Category: Audio Edition | Copyright | File Sharing
Posted by Ernest Miller
For months now I have been touting the possibilities of RSS and BitTorrent, aka broadcatching, especially in regard to the distribution of video. However, audio is also an important distribution medium and there is plenty of opportunity to replace radio with broadcatching as well as television.
Adam Curry has been leading the way in broadcatching audio, providing a daily 15-20 minute audio program, Source Code, on what he (borrowing the term from Steve Gillmor) calls the iPod Platform.
Making MP3s available is easy. What is hard right now is getting those MP3s effortlessly onto other platforms, such as the iPod. Imagine being able to plug your iPod into its cradle at night and pick it up in the morning full of all sorts of audio goodness, or finding the latest news already downloaded into your car for the commute to work. That is part of the idea behind Curry's iPodder.
One of the companies that is taking advantage of the RSS method of distribution for audio is IT Conversations and recently they hosted an interview with famed innovator Dan Bricklin (Dan Bricklin - Memory Lane). Over on his blog, Bricklin talks about his interview and the great potential of this new media form (Interview by Halley on ITConversations and thoughts on online stored audio): With this form of content there is no time slot to fill or miss as there is with traditional radio/TV broadcast. Word of mouth, blogs, and search engines can help build up an "audience" for a particular "episode" after the fact without needing to worry about how many people are tuned in at a particular time. A narrow-interest piece (in hindsight) only costs the production expenses and not wasted distribution since storage is cheap and bandwidth is mainly spent on popular pieces. Something less popular doesn't preclude something else that may be more popular in the same "time slot". A "hit" can last a long time. Digital music players (especially those with large storage capacities) make it easy to carry and save content for whenever you have time to listen, even days or weeks later. Being stored, you can pause the playback, repeat, listen in small chunks of time, etc. Because it can be done when mobile, listening to content that isn't really worth devoting scarce, sit-down, quality time (such as my interview) can be mixed with other activities compatible with listening, such as traveling, exercising, or doing household chores. Being available online, you can recommend a particular piece to others after listening. Excellent thoughts - read the whole thing.
In any case, I should note that I've become so enamored of this new media format that I've decided to start my own show, generously hosted by IT Conversations. More on the first episode in another post.
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August 25, 2004
Posted by Ernest Miller
Joe Gratz uses the end of the lawsuit to lament the death of copyright registration formalities (JibJab Suit Settled).
Chris Cohen, whose original post on the issue (JibJab video: parody or satire?) sparked my initial response, tells Ludlow Music to "get with the program" (Congrats to JibJab!).
EFF Fred von Lohmann adds his thoughts to the end of the lawsuit (This Song Belongs to You and Me) So Guthrie's original joins the Star-Spangled Banner, Amazing Grace, and Beethoven's Symphonies in the public domain. Come to think of it, now that "This Land is Your Land" is in the public domain, can we make it our national anthem? That would be the most fitting ending of all.
C|Net News has reaction from Ludlow Music, which claims the song is still copyrighted (JibJab beats copyright rap): Ludlow's chief legal representative, Paul LiCalsi, said on Wednesday that because "This Land" was last copyrighted during a period when the song was technically considered unpublished, Ludlow's rights to the song never lapsed, he said.
"Since there was no official publication after the last copyright, the song is still protected under the law," said LiCalsi, of the Chicago-based firm Sonnenschein, Nath & Rosenthal. So why did they settle?
Slashdot discusses the issue (JibJab Wins - 'This Land' is Public Domain).
On a related topic, Judge Richard Posner, guest-blogging on Lessig's Blog, discusses the legal distinctions between satire and parody (More on Fair Use, with a Note on Patents).
For all my JibJab coverage: JibJab Archive.
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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: Instapundit
News flash: Sen. John Kerry is running for president. Shortly after he returned from military service in Vietnam he co-authored a book called The New Soldier. However, the book is out of print and, reportedly, Kerry won't allow a new edition to be published to take advantage of all the interest in the book raised by his candidacy.
Nevertheless, someone has put the book online, in clear violation of the copyright: John Kerry's New Soldier Just after JOHN KERRY came back from Vietnam, he wrote the book THE NEW SOLDIER.
The book is out of print. John Kerry does not allow the publisher to reprint it.
To make a rational decision on November 2, you need to have all available facts.
You can now read John Kerry's THE NEW SOLDIER online for FREE. Clearly, this website is guilty of direct copyright infringement and (AAARGH) I could not resist the temptation to read portions of the infringing work.
I blame Glenn Reynolds, aka Instapundit. He is the one who induced me to visit the infringing site through a link of his: There Was Lots of Talk. I probably never would have visited and infringed copyright had it not been for Reynolds' link.
He is a law professor familiar with copyright law, so he should know better, but it turns out he is not a fan of current copyright law. Among other actions and writings: he has hosted infamous anti-copyright law professor Larry Lessig as a guest-blogger; he has made outrageous claims that free downloads don't necessarily hurt copyright owners (RIAA Take Note); he has questioned the efforts of universities to protect copyright owners (Some Good Questions); and, he has said he is fine with a ridiculously short copyright term of fourteen years, renewable once (The Economist). Clearly, Reynolds is no fan of copyright.
Furthermore, he doesn't seem very enthusiastic about John Kerry (too many posts to mention).
Clearly, by linking to the infringing site, Reynolds was encouraging more copyright infringement. He knew what would happen when he pointed his massive traffic to the infringing site. His actions are a paradigmatic case of intentional inducement.
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
This past weekend rumors were running rampant that the JibJab case had been settled with a resounding victory for the two brothers behind the popular parody of Woody Guthrie's This Land is Your Land (Rumor Mill: JibJab Settles Copyright Lawsuit - Complete Victory!).
Seth Finkelstein, who has been tracking the case through PACER, has now confirmed that the case has been dismissed (JibJab lawsuit dismissal CONFIRMED!) 08/24/2004 5 NOTICE of Voluntary Dismissal Without
Prejudice by Jibjab Media Inc., (Cohn, Cindy) (Filed on 8/24/2004)
(Entered: 08/24/2004) Although the dismissal doesn't tell us the final deal, given that the parody is still available on the JibJab website, we can safely assume that JibJab prevailed in the main issue: continuing to distribute the parody.
I'm sure we will learn more when EFF makes an official annoucement.
UPDATE
EFF has issued a press release: Music Publisher Settles Copyright Skirmish Over Guthrie Classic. During the course of investigating the case, EFF learned that "This Land is Your Land," the classic Woody Guthrie song, is part of the public domain and has been for several decades.
EFF's investigation revealed that "This Land is Your Land" appears to have been in the public domain since the early 1970s. Woody Guthrie wrote his classic American song in 1940, when the copyright laws granted a copyright term of 28 years, renewable once for an additional 28. According to EFF, the initial copyright term was triggered when Guthrie sold his first versions of the song as sheet music in 1945. The copyright on the song then ran out when Ludlow failed to renew its registration in 1973. Ludlow believes its copyright -- initially filed in 1956 and renewed in 1984 -- remains valid and disputes EFF's claims....
JibJab dismissed its suit against Ludlow today. As part of the settlement of the case, JibJab will remain free to continue distributing the "This Land" animation without further interference from Ludlow. See also, WIRED, which has more details on the renewal story ( JibJab Is Free for You and Me).
EFF has posted the original 15-page songbook in which the composition was first published: Ten of Woody Guthrie's Songs: Book One [PDF].
For all my JibJab coverage: JibJab Archive.
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August 24, 2004
Posted by Ernest Miller
C|Net News's Declan McCullagh is reporting that a coalition of technology and public interest groups have come up with an alternative to the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act), which they are calling the "Don't Induce Act" (Group offers alternative to P2P bill). Groups behind the new alternative include the Consumer Electonics Assoc., Public Knowledge, Home Recording Rights Coalition, DigitalConsumer.org, Computers & Communications Industry Assoc., and the American Libray Assoc.. Interestingly, the CCIA doesn't actually endorse the alternative, but calls it a "good framework to approach these issues."
Single-page cover letter here: DONT Induce Act Cover Letter [PDF]: In your letter to the Register of Copyrights, you expressed interest in a “technology-neutral law directed at a small set of bad actors while protecting our legitimate technology industries from frivolous litigation.” We have developed such an alternative that would address mass, indiscriminate infringing conduct while preserving the Supreme Court’s Betamax decision, the Magna Carta of the technology industry which is in no small measure responsible for our nation’s preeminence in technological innovation and entrepreneurship. We believe that the enclosed draft meets these goals and serves as the best platform for the discussion of the interests of all concerned parties.
Read the 5-page proposed legislation here: Discouraging Online Networked Trafficking Inducement Act of 2004 [PDF]. Read on for the text...
UPDATED 1325 PT
...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: Flickr
What is Flickr? According to their about page, they are "almost certainly the best online photo management and sharing application in the world." And, honestly, they may not be wrong.
It makes sharing photos online very easy, including publishing them to blogs. More importantly, it allows for collaborative organizing of the masses of photos people now take with digital cameras. The system is really quite something.
Too bad both organizing (hmmm, derivative work?) and sharing (rights of reproduction and distribution) are infringement of copyrights. By creating such a wonderful tool, Flickr is all but begging people to infringe copyright. Oh, sure, they have "terms of use" that tells people not to infringe copyright ... but what does that matter? Especially with phrasing like this: Ludicorp [the company behind Flickr] undertakes to obey all relevant copyright laws, however misguided we may all judge them to be. Translation: Don't violate copyright, wink, wink.
You can create public groups for various interests like "Antique Car Buffs or Obscure Rock Band #33," and won't people obviously include copyrighted photos of such topics? You can search metadata to find exactly the infringing work you're looking for, and there are RSS feeds that will let people know when new infringing works are available.
Flickr is clearly designed to induce infringement.
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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August 23, 2004
Posted by Ernest Miller
Richard Koman of Anywhere Books and O'Reilly interviewed me concerning what is wrong with the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) (Ernest Miller on What's Wrong with the Induce Act). It seems a bit egotistical but, go, read. :-)
About a week ago, the New York Times ran an editorial, In-House Advice, condeming the INDUCE Act (The NY Times Against the INDUCE Act (IICA) and a News-Leader Op-Ed). Today, head of the RIAA Mitch Bainwol responds in a letter to the editor (Music Downloading and Congress): If there are concerns about the Induce Act's scope, let's work constructively to address them. We, too, want to see technology flourish. But what of the legitimate online entertainment services forced to compete against stolen copies of the same product offered for free? That's a decidedly unbalanced playing field. Well, some suggestions have already been made ... let's see if the RIAA responds constructively.
Speaking of suggestions, I spoke to a member of the Senate Judiciary Committee staff today and they have yet to schedule any meetings regarding the INDUCE Act despite a report being due from Marybeth Peters, the Register of Copyrights, on September 7th (Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) "Consensus" by Sep 7). However, they did confirm that all the organizations that were invited to the Senate hearings (Protecting Innovation and Art while Preventing Piracy) would be invited to participate in meetings: Consumer Electronics Assoc., Business Software Alliance, IEEE-USA, NetCoalition and the RIAA. A consumer group will also be invited, but which one has yet to be determined.
Now, I've given Hiawatha Bray a hard time for being one of the most consistently wrong tech reporters out there (in his case, for the Boston Globe). However, recently, he has been writing stuff I actually agree with more or less. In his latest article he acknowledges what the Grokster decision means for the music industry, but opposes the INDUCE Act (A swan song for the music industry and PDF): But I changed my mind [about the INDUCE Act] when Marybeth Peters, the chief of the US Copyright Office, praised the Hatch bill because it would undermine the Betamax case. If that happened, the next generation of digital marvels would be buried in an avalanche of injunctions, depositions, and discovery motions. No thanks, Marybeth. We'd rather learn to live with digital thievery. He even endorses an alternative compensation system. Will wonders never cease? via Furdlog
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
BloodRayne is a game about a female vampire hunter, a very attractive female vampire hunter with daddy issues: In 1932 an American teenage girl was apprehended in Europe after carving a path of destruction trying to track down and kill her biological father. The girl's name was Rayne and she claimed the people she killed, and her father who was still at large, were vampires. Before more information was attained, the girl disappeared.
That girl is a Dhampir; a product of her human mother's rape by her vampire father. Born with powers of a vampire without all of the weaknesses. She was taken in by an underground organization calling themselves the Brimstone Society -- a top-secret fraternity that hunts down and destroys supernatural threats. Agent BloodRayne, as she is now known, protects humanity from things that ordinary people shouldn't have to deal with. Except that part about appearing topless in Playboy ( BloodRayne 2 News): Rayne Makes Her PlayBoy Debut
If you felt teased by her sexy Girls of Gaming cover, then this new feature art is going to blow your mind! Rayne is 100% topless and smokin' hot in the October issue of Playboy magazine. This is a first in videogame history and trust us when we say that Rayne does not disappoint. The magazine hits newsstands in early September so here's a great excuse to get a copy! Um, okay. The line between airbrushed photos and Renderotica is getting a lot more blurry. BloodRayne image gallery here: BloodRayne.net Gallery.
I can't wait until concerned parents get word of this (among others). In any case, this certainly is a milestone ... or something.
via Fleshbot
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Posted by Ernest Miller
The rumor may be that the JibJab case is all but over (Rumor Mill: JibJab Settles Copyright Lawsuit - Complete Victory!), but some details have emerged. In particular, EFF's complaint. Read the short, 7-page document: JibJab Media Inc. v. Ludlow Music Inc., Complaint for Copyright Misuse and for Declaratory Relief of Non-Infringement of Copyright [PDF]. Non-infringement and misuse ... interesting. Here are some of the more interesting paragraphs:
COUNT I: DECLARATORY RELIEF OF NON-INFRINGEMENT ....
18. JibJab contends that the creation and dissemination of its “This Land” video is a fair use of the Guthrie Composition and therefore, not an infringement of the copyright in that composition. Among other reasons, JibJab believes that the video is a transformative parody of the Guthrie Composition and not a substitute for the original. Ludlow, on the other hand, believes JibJab’s parody to be an infringement.
19. JibJab is informed and believes that the copyright on the Guthrie Composition has expired or is invalid.
20. JibJab is informed and believes that any copyright held in the Guthrie Composition is extremely limited because the majority of the melody of the Guthrie Composition is a derivative work of a song entitled “When the World’s On Fire” recorded by the Carter Family in 1930, ten years before the Guthrie Composition was written.
21. JibJab is currently distributing the “This Land” video and intends to continue doing so for as long as there is public interest, at least through the November, 2004 presidential election. So far, expected, but there is also the misuse of copyright claim. COUNT II: MISUSE OF COPYRIGHT ....
27. Plaintiff is informed and believes and based upon such information and belief alleges that Defendant’s motivation in demanding the removal of the “This Land” video from the Internet was not to protect any market for the Guthrie Composition as an allegedly copyrighted work or any other interest protected by copyright law, but instead to stifle free speech and artistic commentary on the Guthrie Composition.
28. Plaintiff is informed and believes and based upon such information and belief alleges that Ludlow is using threats of copyright infringement to restrain JibJab’s free speech and artistic expression and as leverage to force its website service provider to restrict this speech from public access on the Internet....
30. Ludlow engaged in the misuse of its copyright, including in the letters of July 20, 23, and 26, by claiming that the creation and dissemination of the “This Land” video constituted copyright infringement when it knew that they did not. And, finally, the relief sought: 2. The Guthrie Composition is no longer protected by copyright and/or is part of the public domain.
3. Damages for copyright misuse according to proof;
4. Judgment barring Defendants from enforcing any copyright in the Guthrie Composition unless and until their misuse has ceased; Interesting stuff. Will we learn more?
via Blogbook
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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: Online Ad Publishers
Today's edition of the New York Times has an important article about a website that advertises online casinos challenging the Dept. of Justice regarding claims that advertisements for overseas online gambling (where gambling is legal) are illegal in the United States (where online gambling is generally illegal) (Lawsuit Claims Free Speech for Online Casino Ads).
Why are the ads for online casinos illegal? Prosecutors last year started a grand jury investigation into the efforts of American media companies, including major Web search engines, that publish or broadcast advertisements for offshore casinos. The Justice Department has argued that American media companies, by carrying the ads, are aiding offshore casinos. According to prosecutors, the gambling operations are illegal, and so are the advertisements. [emphasis added] Aiding the casinos, as in "aiding and abetting," as in, if this were copyright law, those that publish the advertisements would be guilty of "inducing" under the INDUCE Act.
Better be careful about hosting ads for that new-fangled TiVo, the one that will likely be sued under the INDUCE Act.
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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August 21, 2004
Posted by Ernest Miller
According to Mary Hodder on Napsterization, EFF has prevailed in the JibJab lawsuit over their parody of This Land is Your Land (Copyright Rumor Mill). Says Hodder, I just heard that EFF has won its case representing the Jibjab guys. EFF contended that Woodie Gunthrie didn't renew copyright on "This Land is Your Land" back in the day when copyright terms had to be renewed. Suits were filed, but now, apparently, according to the copyright rumor mill, EFF and Jibjab have "settled," whatever that means. Apparently they got "everything they wanted" because it turns out nobody ever renewed the copyright on the song. I figured that the actual copyright status of the music, and possibly the lyrics, would certainly be an issue.
I suspect that the settlement keeps Ludlow Music out of court, where the copyright status of This Land is Your Land would be decided once and for all. This way, Ludlow keeps getting royalties and doesn't risk losing the copyright entirely. Note that the actual complaint by EFF has not yet been made widely available, though EFF generally publishes all its legal documents right away. This may have been part of the negotiation strategy with Ludlow, allowing them to back out of their threats without completely demolishing their claimed copyright.
Will all now be revealed? We will see.
UPDATE 1945 PT
EFF will neither confirm nor deny the rumor.
For all my JibJab coverage: JibJab Archive.
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August 20, 2004
Posted by Ernest Miller
The repercussions of the Apple/Real conflict continue, and much can be learned from the various commentaries. Previous coverage here: What Real's Hacking of FairPlay Doesn't Do, Apple Gets Real Serious About Harmony and Will Real's DRM Strategy Succeed? Signs Point to "No".
Copyright shaman and law professor James Boyle has a commentary in the Financial Times attacking Apple's metaphor that Real "broke into" the iPod (The Apple of forbidden knowledge).
Derek Slater continues his excellent analysis of the issues (Real's Freedom of Choice Campaign and Price Cuts). He expresses as much surprise as I do that Public Knowledge is supporting Real's campaign for "freedom of music choice" (Public Knowledge Supports RealNetworks Campaign for Freedom of Choice). Slater points out that the real problem isn't that Apple won't license its DRM, but that the DMCA prevents Real from fully interoperating with the iPod without Apple's permission. Of course, you won't hear Real complaining about the DMCA.
I disagree with Slater that Real's pricing ($0.49/download) might be a turning point. I don't think there is a chance in hell that'll happen. The problem is that Real is losing money to the copyright holders with each sale at that price. Even if it attracts customers, I doubt they will be impressed when the price goes up later. The real question is what incentive this gives the copyright holders to reduce their licensing fees. The answer, I'm afraid, is none. The copyright holders will be happy with the additional increase in revenue, but they won't bat an eye when Real has to raise prices and lose customers. Real would have done better to spend the money on buying the contracts of some popular bands and giving the music away. This is simply a sign of desperation on Real's part.
Interestingly, Real's "Freedom of Music Choice" campaign links to EFF's complaints about Apple's FairPlay DRM (EFF: FairPlay: Another Anticompetitive Use of DRM) (FoMC: EFF on "FairPlay"). However, there is no link to EFF's take on Real's faux grassroots effort (Hypocrite, Thy Name Is Real). Maybe it is because of quotes like this: If Real actually cared about "Freedom of Music Choice," it would be telling its customers to burn the downloaded music they purchase to CD, then rip to any DRM-free format they like (including MP3, WAV, or AAC, all of which play just fine on the iPod). That's a much better option than being dragged into a feud between Apple and Real. Finally, a couple of other posts on the Apple/Real imbroglio that have been getting quite a bit of attention. Druken Blog's Convergence Kills, and Daring Fireball's 2004 Won't Be Like 1984. Both are lengthy, but well-worth the time if you are interested in the issues.
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+ TrackBacks (0) | Category: Digital Millennium Copyright Act | Digital Rights Management
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 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: Replica Prop Forums
I like to be a little more whimsical on my Friday Hit List posts, so today we see how a website dedicated to mastering the making of models and replicas of movie props could easily be shut down by the INDUCE Act.
The Replica Prop Forums (you can read without registering) is a community of film fans, modelers and others who painstakingly recreate various props and models from films. The members of this community are, without a doubt, uberfans. Creators whose works are discussed on these forums should be proud that people care that much about their work.
Nevertheless RPF is clearly a haven for copyright infringement, and dedicated to encouraging people to engage in copyright infringement. After all, aren't these props and models copyrighted? Isn't making a model (with rare fair use exceptions) infringement? Even the site recognizes this.
From the Code of Conduct: The sale/discussion of pirated or copied media is not permitted on the RPF. This means music, movies, software, games, etc. and/or related items like labels or packaging. If it is genuine/original material, it is welcomed, not only for discussion, but also for sale in the JY.
Emulator discussion is permitted, however the discussion or location of ROM's is not.
Remember, media piracy has it's own severe real-world ramifications. Our hobby has enough potential legalities to contend with and adding media piracy to that already clouded mix is a risk we will not take. As always it's better safe than sorry. [emphasis in original] "Our hobby has enough potential legalities to contend with," indeed.
The site even encourages sale of these replicas: Selling one of any item from your personal collection is permitted.
Threads used to publicly discuss a run of any unlicensed replica prop, costume item or complete kit are not. Remember these words, "contact me privately for more information".
Threads to jointly research a prop or discuss our work are encouraged, as is the use of private contact to convey interest in a project. [emphasis in original] Looks like they are trying to avoid some liability, but help people meet up to exchange cash for infringing works anyway. Tsk, tsk.
However, don't you dare infringe the work of an infringer: Deliberately recasting another member’s work or property without permission is something this community does not support. A member found selling/trading (either in the Junkyard or any other online auction or outlet) items recast from another member without permission will face possible removal from the RPF. Should any member suspect another member of this behavior, please contact a member of the staff. Too bad they don't say the same for copyright infringement. Speaking of which, they do recognize the importance of the original work and its copyrighted status: Please show the license and copyright holders the respect their hard work deserves by expressing your opinions about individuals, companies or their products in a civil and constructive manner.
As with the other entries in this code, we ask that the community allow the staff to handle it's application and NOT to engage in "self policing". [emphasis in original] See, they know that licenses are granted to make replicas and that the original works are copyrighted. This is a blatant attempt to keep the copyright holders from getting mad at them.
The RPF may think it is only running a community-based forum, but they are really inducing people (many of them young, probably) to engage in criminal activities.
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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August 19, 2004
Posted by Ernest Miller
The Ninth Circuit has upheld the district court decision in Grokster. Read the 26-page decision: MGM v. Grokster [PDF] . Read it. The decision isn't really all that long, it is single column formatted with 8 pages of administive gobbledygook.
A quick read of opinion leads me to think it a great decision that shows a deep understanding of technology and the public policy behind what the decision calls Sony-Betamax. This decision also demonstrates a better understanding of the Napster decision than the court that wrote it, I think, putting it into better context, certainly.
Other coverage (UPDATED 1120PT, 1150PT, 1220PT, 1245PT, 1255PT, 1340PT, 1400PT, 1525PT, 1800PT):
The man who argued the case, Fred von Lohmann, discusses it - read! (More on MGM v. Grokster Ruling).
EFF's press release (EFF Scores Landmark Win for P2P).
Jason Schultz on Copyfight (Powerful Language from the MGM v. Grokster Decision).
Cory Doctorow on BoingBoing ( EFF wins Grokster! Software doesn't have to be easy for Hollywood to wiretap!).
Techdirt (Appeals Court Rules For Grokster).
Ed Felten (Grokster Wins in Appeals Court).
Joe Gratz discussed the issue over dinner last night with blogger luminaries and they agreed this would increase pressure to pass the INDUCE Act (Dinner). More from Gratz on the recurring trope in the case (Victory).
Eugene Volokh (he disagrees about whether P2P "materially contributes" to infringement (Grokster).
Chris Cohen ( The EFF has won the Grokster case!!!).
Andrew Raff on IPTABlog (Ninth Circuit Affirms Grokster Ruling).
Andrew Raff on the INDUCE Act Blawg (Ninth Circuit Affirms Grokster).
Siva Vaidhyanathan points out the decision's extensive reference to the band (Wilco Saves the Day).
Ars Technica (Appeals court upholds legality of P2P software).
Seth Finkelstein analogizes this decision to the LaMacchia case that resulted in the No Electronic Theft Act (MGM v. Grokster appeal victory, and The INDUCE Act Cometh).
Frank Field notes that everyone seems to agree on the key paragraphs in the decision (9th Circuit Affirms Grokster).
Patent attorney Dennis Crouch thinks the opinion is well-written (Grokster not liable).
Dan Gillmor hopes the logic of this decision spreads (Important Copyright Ruling Favors Freedom).
P2P United's press release after the jump.
Slashdot (Your Rights Online: Grokster Wins Big in Ninth Circuit).
American Constitution Society (9th Circuit Panel Allows Peer to Peer File Swapping).
Scrivener's Error has some good points to make ([Expletive Deleted] Headline Writers).
Tim Wu, Lessig's guest-blogger, promises analysis here (Grokster Wins).
The Trademark Blog has the best headline (Grokster Advances To Finals).
Public Knowledge's press release (Public Knowledge Statement on Ninth Circuit Decision in the Grokster case).
Derek Slater does a little cleanup (Grokster Leftovers).
IP News Blog (The EFF wins Grokster; A good day with possible consequences?).
Tim Wu, again, on the possibilities of Certiorari to the Supreme Court (Cert.?).
Technology Liberation Front (Don't Get Too Excited).
Wendy Seltzer (MGM v. Grokster: 9th Circuit Affirms Software Makers Not Liable).
Mainstream Press Coverage (Added 1130PT, 1145PT, 1245PT, 1400PT, 1525PT, 1800PT) - They finally get in the act:
C|Net News (Judges rule file-sharing software legal).
Reuters (Court Deals Blow to Movie Studios).
AP (Court: Grokster, StreamCast Not Liable).
WIRED (P2P Services in the Clear).
LA Times (reg. req.) (Studios Lose Round in File-Sharing Battle).
The Register (Court tells RIAA and Congress to let P2P software thrive).
Internet News (P2Ps Score Landmark Legal Victory).
PC World (Peer-to-Peer Companies Win in Court).
Mercury News (Federal appeals court rejects attempt to shut down music file-sharing networks).
Below a few highlights and possible impacts regarding the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) ...
...continue reading.
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+ TrackBacks (0) | Category: Copyright | File Sharing | 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: XM Radio to MP3
Gizmodo was the first place I saw this device and even they recognize that it will be high on the list of things the RIAA will want to stop (TimeTrax: Convert XM Radio to MP3): It's sad that so often we have to preface cool and useful software with a sort of 'Get it while you can,' warning, but this looks like just the sort of thing the RIAA is going to come after with crate full of lawyers. TimeTrax is a $20 piece of software that can turn your $50 XM Satellite Radio XM PCR - a PC-based XM radio, if you didn't catch that - into a sort of satellite radio PVR-like-thing-but-no-video. It listens to the radio stream you set (and you can schedule shows in the future), then using XM's song title data converts individual songs into MP3s or WAVs. Now that sounds like Fair Use to me, and fairly useful at that, but we'll see how long it takes before Valenti draws a direct like between TimeTrax and the dissolution of the very fabric of our culture. Sounds sort of like TiVo for radio, or Betamax. You can check out the system here: NeroSoft TimeTrax 1.1. Indeed, this seems right down Betamax's time-shifting alley: Using TimeTrax, you can now record directly from your XM PCR radio onto your PC's hard drive in WAV or MP3 format. Using TimeTrax's 10-event scheduler, you can time shift programming. Is there a concert being broadcast at 2:00 am that you really want to hear? No problem, use TimeTrax to record the concert and listen to it at your convenience! Your favorite talk show on during work hours? No problem, using TimeTrax, you can listen to it when you get home! Sounds like a substantial non-infringing use to me.
Unfortunately, of course, such capabilities also enable infringement. NeroSoft is going to have to sell an awful lot of copies of this software to pay the resulting legal fees. Given how many XM radios have been sold I wouldn't be investing any money in NeroSoft anytime soon.
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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August 18, 2004
Posted by Ernest Miller
GameSpy reports that the California legislature has passed a bill requiring videogame retailers to post ratings labels and provide information about ratings on videogames (Video game bill passes Senate). The bill now awaits the signature or veto of Gov. Schwarzenegger. Read the legislative analysis of the AB 1793 here: AB 1793 - Bill Analysis.
While this is better than original versions of the bill, it still shows the prejudice legislators have against this particular media. Why not similar requirements for bookstores, movie theaters, music stores and magazine stands?
via Joystiq
UPDATE
Here is an AP article on the cybercafe regulations in Los Angeles that quotes your humble correspondent (Violence Tackled at Online Gaming Parlors).
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+ TrackBacks (1) | Category: CyberCafes | Freedom of Expression | Games
Posted by Ernest Miller
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+ TrackBacks (0) | Category: 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: SourceForge
SourceForge.net is the "world's largest Open Source software development website, with the largest repository of Open Source code and applications available on the Internet. SourceForge.net provides free services to Open Source developers."
SourceForge hosts the code and provides some important tools for maintaining and developing projects ... and all for free! They certainly aid and abet those whose projects they host. I wonder if any of the 85,000+ projects they host would violate the INDUCE Act?
Well, at least five of the top ten downloads as of today are for P2P programs, which the INDUCE Act is allegedly targeted at. I wonder how much advertising revenue the site gets because people are downloading P2P programs? Could it be that hosting P2P programs makes SourceForge "commercially viable"?
The SourceForge people have to know that they are helping those who help infringers. How can they not be aware of what they are doing? And if they know what they are doing, doesn't that also mean they intend to help such infringers? Is not SourceForge inducement to make programs that induce?
And we all know that Open Source == communism, anarchy and disrespect for intellectual property, right? Doesn't SourceForge support and give succor to a philosophy that would result in "open source" music and movies? Isn't that what they really want?
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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August 17, 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: Credit Card Companies
Law.com reported yesterday that a federal judge threw out a case involving secondary copyright liability (Federal Judge Finds Internet Porn Suit Is No Perfect 10). One pornographer (Perfect 10) was suing credit card companies who provided credit card services to other pornographers who Perfect 10 claimed infringed Perfect 10's copyrights: Perfect 10, which had sued under the theories of contributory and vicarious copyright infringement, wanted the credit card companies held liable for facilitating the buying and selling of the stolen images. According to the article, the judge based the decision on the concept of "control," letting the credit card companies off the hook because they couldn't control the infringing pornographers. In the Perfect 10 case, Ware said, it comes down to what degree the credit card companies can control the Internet businesses.
It's not enough, the judge wrote, for "the defendants to merely have contributed to the general business of the infringer. To have materially contributed to copyright infringement, 'the ... assistance must bear some direct relationship to the infringing acts.'"
Ware cited the older Napster case, A&M Records v. Napster, 239 F.3d 1004, as an example where there was "substantial contributing conduct" because Napster provided an online index of tradable, copyright-protected songs. Sounds similar to the reasoning behind the Grokster decision, which the INDUCE Act aims to overturn.
Pornography is a big business. The credit card companies make money handling pornography transactions. Infringement means more transactions and more profits for the credit card companies. Certainly, they are aware of this. They must also be aware that some of their customers are infringers. By making it easy to set up shop, are not the credit card companies inducing potential infringers into the unauthorized copying and distribution of copyrighted works?
I bet Perfect 10 wishes it had the INDUCE Act to wield against the credit card companies.
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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August 16, 2004
Posted by Ernest Miller
Anthony Cerminaro has started a business law blawg with a focus on technology companies and occasional forays into things like intellectual property licensing: Bizz Bang Buzz.
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Posted by Ernest Miller
Ed Felten breaks what may be very important news on Freedom to Tinker (SHA-1 Break Rumored).
SHA-1 is a member of the SHA family of cryptographic hash functions. Basically, a hash takes a file and then creates a "unique" and much shorter identifier for that file. Change even 1 bit of a file and the hash will be completely different. The hash is "unique" in the sense that is extremely improbable that two unrelated files will have the same hash. There are many uses for such a technique and the SHA family (particularly SHA-1) is commonly used in all sorts of programs and protocols: If SHA-1 is completely broken, the result would be significant confusion, reengineering of many systems, and incompatibility between new (patched) systems and old. To put it mildly.
If true, this would also be evidence that even seemingly foolproof and well-tested algorithms can become vulnerable.
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Posted by Ernest Miller
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+ TrackBacks (0) | Category: 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: DVD Jon's AirPort Express Hack
Jon Johansen, aka "DVD Jon," is most famous for participating in the development of DVD encryption-cracking software. He has also been involved in hacking Apple's FairPlay DRM.
He is back in the news because he has hacked the encryption on Apple's AirPort Express, which is a device that you plug in and stream iTunes music to your stereo, among other things. The connection to the AirPort Express is encrypted so that only Apple's software could stream music. Johansen's hack will allow others to develop software to stream music through the AirPort Express. The software was available on Johansen's site, but the site has been down for a couple of days. Check here periodically until it returns.
In any case, as Ed Felten notes on Freedom to Tinker, traditional copyright law doesn't have much to say about Johansen's hack (DVD Jon Strikes Again). There may or may not be a DMCA violation (I don't know enough about the facts to say), but it would be unlikely that Johansen's hack would lead to secondary liability under traditional theories. After all, there is a clear substantial non-infringing use for the hack.
However, Johansen is a notorious foe of DRM. Could it be that his intention was to induce copyright infringement? An AirPort Express with open APIs would make ownership of pirated material much more desirable. Sure, you can stream MP3s through iTunes to an AirPort Express, but Apple takes some steps against infringement. Johansen lets any old software developer (who might not be as copyright enforcement-friendly as Apple) connect to an AirPort Express. The very fact that the hack is "unauthorized" might encourage others to engage in "unauthorized" acts as well.
A valid INDUCE Act case? Maybe not, but Johansen would make an ideal defendant (from the plaintiff's point of view). What exactly did he intend his hack for? You certainly could tie him and his device up in court.
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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August 13, 2004
Posted by Ernest Miller
Once again, I've been remiss in keeping up with all the information out there, but here are some of the more recent and interesting links.
Salon (subscription or watch an ad) has a story that explains the benefits of broadcatching quite well (Must-download TV). An excellent introduction to the subject. PVR Blog has some interesting comments on the article (BitTorrent and RSS): Media demand is global but the content providers have yet to develop a business model to effectively provide that media to a global audience, and thus the lovers of the content have to "break laws" to watch their favorite shows. It is, as the hackneyed phrase goes, "a lose-lose" (in the sense that the content providers perceive that demand as theft and the content viewers often cannot get what they want when they want it legally.) I agree. This should be win-win.
KTYP has produced an RSS feed for broadcast television (Bootleg RSS: TV Edition). Due to popular demand the feeds are not currently available, but should be back soon. This is a no-brainer for television broadcasters who have a clue.
The New York Times has an article on several of the movie download website (An Online Supplier for Your Desktop Cineplex). The article fails to note concepts like RSS support, P2P downloading or being able to shift from PC to television. In other words, the article is clueless.
Marc Canter has a couple of links to stories about TiVo and Strangeberry, a startup TiVo acquired earlier this year (TiVO and Strangeberry). Details aren't exactly clear, but there Strangeberry might include some broadcatching functionality. I would definitely be interested in learning more.
Poynter.org has a tantalizing reference to a recent study on the potential for video-via-internet, what the study calls "Internet Bypass" (The Changing Economics of Internet Video). via Technology360
Telepocalypse has a very interesting meditation on the future of TiVo that provides some insight into the future of broadcatching as well (Internet didn't kill the video star). Well worth reading.
The Internet Archive now has more than 300 feature films available (Internet Archive: Feature Films). Who will be the first to combine these with an RSS/Broadcatch feed for MythTV?
As usual Lucas Gonze has a number of interesting posts that concern broadcatching (vBlog Central to www: go away): Over on the nascent vBlog Central video blog hosting service, a vogger can have anything they might dream of except to be watched, because entries don't have URLs. The HTML has a URL, but the video URL is not only obscured, it's a one-use ID designed to prevent direct linking.
This makes it impossible to use vBlog videos in playlists, to make mashups, to point into them using start and stop times (and thus make them accessible to search engines), and to take advantage of the lazy web. It seems perfectly reasonable for any one video blogger to embrace those restrictions, but to do it for many or most of them will damage video blogging as a whole. Gonze also notes that CBS News has adopted playlists for their news pieces ( CBS News implements playlists). Imagine if they used an opensystem that anyone could create playlists with and could include other news sources.
One other post from Gonze, but you really should subscribe to his RSS feed (TiVo-like system for aggregated web-based compressed audio data).
Finally, JD Lasica touches on some broadcatching issues in the Industry Standard (Ready for the visual Web?).
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+ TrackBacks (0) | Category: Broadcatching/Podcasting
Posted by Ernest Miller
Three weeks ago or so, I took OutragedModerates.org to task for poor use of P2P for public domain document distribution (Outragedmoderates.org - Not the Most Impressive Use of P2P). Since then, OutragedModerates has made a number of changes, for example noting the spyware problems with certain P2P software distributions and adopting more efficient and effective technologies for P2P distribution such as BitTorrent.
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Posted by Ernest Miller
Been a little busy, so I apologize for the dearth of Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) coverage.
Perhaps the most interesting conversation takes place on Larry Lessig's blog with copyfighter Rep. Rick Boucher (D-VA) (Induce No More). As of this posting there were 107 comments, many of which are quite interesting. Definitely a must-read on the INDUCE Act.
Speaking of interesting comments on Boucher's posting, JD Lasica has a new blog (Darknet) in support of his forthcoming (May 2005) book Darknet: Remixing the Future of Movies, Music and Television. One of the first posts pulls out a good quote from Boucher in the comments section of Boucher's post on Lessig's blog (Boucher: Induce Act faces 'knockout punch'). Take a look at JD's new blog, read the comment (which includes a shout out for Lasica), and add Darknet to your newsreader.
Over on Copyfight, Donna Wentworth points out what Disney wants the FCC to regulate with regard to the proposed broadcast flag for digital radio, basically, everything (Disney's Not-So-Hidden Agenda). And we're supposed to believe that copyright holders aren't going to abuse the INDUCE Act?
The LibraryLaw Blog has a great post by Newton Minow about the consequences of the INDUCE Act for libraries (Inducing Unintended Consequences for Libraries): INDUCE could shift the library away from its traditional role as information provider who leaves responsibility for copyright compliance to the library patron. Instead, to cover itself from liability, it may need to audit library patron uses to make sure the library does not intentionally aid, abet, induce, or procure an infringing copy.
Such inquiries would be antithetical to the judicially-recognized role of libraries in Minarcini v. Strongville City School District as "a mighty resource in the free market place of ideas." [italics in original] [ via INDUCE Act Blawg]
A while ago, I posted a pointer to a copyright story by Andrew "Werdna" Greenberg (A Copyright Fable Relevant to the INDUCE Act (IICA) and Other News). There is new version of the story, more directly related to the DMCA, but one can imagine its application to the INDUCE Act (The Luddite's Lawyer and the Circumvention of Progress).
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: Player Pianos
We have a problem. A series of court decisions have made it clear that the copyright pirates who get rich stealing the food out of songwriters' mouths will not have to answer for their crimes. Even the Supreme Court has agreed with this travesty of justice, White-Smith Music Pub. Co. v. Apollo Co..
The technology that makes such piracy possible is the "piano roll," a preforated roll of paper that, when used with a player piano, will reproduce whatever music has been encoded on the sheet. You can take any popular song, such as Little Cotton Dolly, and convert the sheet music into a series of preforations that will faithfully reproduce a performance of the song on a pianola. The existance of this technology is to Tin Pan Alley as Jack the Ripper is to a Whitechapel prostitute.
Thankfully, the INDUCE Act (with a codicil making clear piano rolls are a derivative work) will stop this threat by permitting songwriters to bring suit against the makers of player pianos. While there are millions of piano rolls in the marketplace, there are only tens of thousands of pianolas. Clearly, it makes sense to go after the phonola manufacturers. After all, the value of these player pianos is due to the existence of the bootleg piano rolls of popular music.
Of course the pianola manufacturers will say they intend that purchasers play only authorized piano rolls. However, it is clear that the vast majority of piano rolls are of popular music such as Little Tommy Went a Fishin' and not these "authorized" piano rolls. Clearly, the intention of player pianos is to induce the average citizen into brazen acts of piracy (once piano rolls are legally recognized as the piracy they are).
Thank goodness for this forward-thinking law. Current player pianos require an operator to maneuver the footpump for the operation of the bellows. Imagine how much more widespread these devices will become if they can be operated through electrical power (which my technologist friends tell me will be soon)! One of the advantages of the INDUCE Act is that it is technologically neutral, so these futuristic electrically powered piracy devices will be covered by law as well.
[Editor: Apparently, the author is unaware that the "piano roll problem" was solved by means of a Congressionally-mandated compulsory license (aka "mechanical license") and the INDUCE Act will not be needed to sue the manufacturers of player pianos, though they certainly might have been sued if the INDUCE Act had been in force during the late 1800s.]
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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August 12, 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: EFF's Digital Front of Television Liberation
The FCC's broadcast flag mandate doesn't go into effect for another 10.5 months or so. Until then, one is permitted to distribute non-broadcast flag compliant devices. Such non-broadcast flag-compliant devices will clearly be capable of aiding and abetting copyright infringement to a very high degree. And what organization is promoting the use of such devices? Why, the EFF, of course.
EFF is busy promoting the development and distribution of non-broadcast flag-compliant devices until the FCC makes it illegal through the Digital Front of Television Liberation, which is not to be confused with Television Liberation's Digital Front (splitters!): Since machines you've already built will still work in high-def next year, we'd like to make HDTV tuner cards easy to use now, while they can still be manufactured. We want to help the MythTV project work seamlessly with the pcHDTV card so less technical users can beat the broadcast flag. We'll also use these systems as benchmarks against which to compare the capabilities of post-flag HDTV devices. We also want to hear about Windows and Macintosh HDTV tuner cards, with an eye toward helping people make the most of existing pre-flag products. Once again, EFF claims that they only want to preserve existing fair use rights. Yet their program would preserve the right to infringe as well! You can't protect fair use without also protecting the crime of infringement.
EFF knows that if you preserve fair use rights some people will inevitably abuse those rights to infringe. The worst part is, some people will infringe accidentally if the tools are available. For example, some people might record a show for a friend who is going to be out of town and then give them a copy. Without a broadcast flag to prevent such "friendliness," some people will innocently be seduced into depraved lives of indifference to copyright. Clearly, the EFF's entire digital television project is a not-so-subtle inducement to infringement.
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: Broadcast Flag | Hatch's Hit List | INDUCE Act
August 11, 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: US Postal Service
Tip o' the hat to Fred von Lohmann and Jason Schultz
Yesterday, Stamps.com announced that they had gotten permission to begin selling personalized stamps (PhotoStamps). USA Today has a nice article (Stamps of individuality push the envelope). From the company info page (PhotoStamps: Company Info): PhotoStamps is a new form of postage that allows customers to include their favorite digital photographs, designs or images on valid US Postal Service postage. Customers design state-of-the-art, professional-looking postage from the PhotoStamps web site by simply uploading pictures from existing image files, digital photographs, and original graphics. An intuitive interface allows users of PhotoStamps to flip, rotate, and zoom in and out of their images, as well as add colored borders to create harmonized themes. Users maintain a secure online account that allows for the storage of images for future purchases. Using advanced printing technology, we send customers high-quality, peelable PhotoStamps within a short timeframe, allowing for a wide variety of personal and business-related usage. PhotoStamps is brought to you by Stamps.com Inc., the leading provider of Internet-based postage services. Of course, there are some pretty heinous terms and conditions. For example here's a list of how you aren't permitted to use the service: A. For any unlawful purposes;
B. To upload, order for print, or otherwise transmit or communicate any material that is obscene, offensive, blasphemous, pornographic, unlawful, deceptive, threatening, menacing, abusive, harmful, an invasion of privacy or publicity rights, supportive of unlawful action, defamatory, libelous, vulgar, illegal or otherwise objectionable;
C. To upload material that emulates any form of valid indicia or payment for postage;
D. To upload, order for print, or otherwise transmit or communicate any material that you do not have a right to transmit or communicate under any contractual or fiduciary relationship or which infringes any copyright, trade mark, patent or other intellectual property right or any moral right of any party;
E. To harm minors in any way, including, but not limited to, content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct; and
F. To upload or otherwise transmit any material which is likely to cause harm to PhotoStamps or anyone else's computer systems, including but not limited to that which contains any virus, code, worm, data or other files or programs designed to damage or allow unauthorized access to the PhotoStamps service or which may cause any defect, error, malfunction or corruption to the service. Disclaimers. Generally worthless under the INDUCE Act. After all most of the P2P programs that are targeted by INDUCE use disclaimers too. In any case, how will Stamps.com make sure that no copyrighted images are used? Sure, they'll be able to pull the obvious ones, but their human editors won't be foolproof. The very existence of the service will certainly encourage people to try to get copyrighted images through their filtering program; some will inevitably succeed.
But Stamps.com is too easy a target. Why not sue the original inducer, the United States Postal Service? After all, the world got along mighty fine without potentially-infringing personalized postage. I'm sure the reason they permitted it was in order to sell more postage and make more money, otherwise, what is the purpose? The very fact that the USPS requires a disclaimer from Stamps.com is because they knew people would use the system to violate copyright.
Does the USPS have a system that can reject postage found to be copyright-infringing after it has been sold to the public? Like bootlegs, will infringing postage still be used? I imagine that cancelled infringing postage will have quite the cachet with philatelists. And, if there is any group the USPS wants to please, it is the philatelists. Could it be that the USPS won't be quite so hard on Stamps.com if a few copyrighted images get through, making them all the more valuable and rare? Won't the possible value or relatively rare copyright-infringing postage encourage people to try to get copyrighted works through the system even more?
Sounds like inducement to me.
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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August 10, 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: Email to RSS
A number of people have been arguing that RSS may soon replace email for many functions (Email v RSS, let us move on...). However, many people haven't made the switch or don't offer an RSS feed as an alternative to email newsletters, for example.
Enter the companies that will take emails and turn them into RSS feeds for you, such as iUpload Mailby RSS: Using MailbyRSS is simple. Organizations need only to sign up to the service to receive a special e-mail address and password from iUpload and can immediately begin to author content for their RSS channel by sending it as an email. When MailbyRSS receives an authorized e-mail message, it automatically creates or updates an RSS channel and generates any supporting web pages required. Anyone can use this service, which means that anyone could subscribe an email newsletter and an RSS feed would then be created.
The problem is that an RSS feed is a derivative work of the original email. Moreover, on the free version of the Mailby RSS service, the RSS feed includes advertising for the service itself. In this case, the Mailby RSS service might be guilty of direct infringement, but what of a program that will do a similar conversion that you can download for personal use?
The purpose of such a program would clearly be to induce the creation of derivative works. After all, if the provider of an email newsletter wanted to provide an RSS feed, they certainly could have.
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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August 09, 2004
Posted by Ernest Miller
Creative Commons reports that the Future of Music Coalition has come out against the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) by means of a letter to members of the Senate Judiciary Committee (Musicians on the INDUCE act).
Read the FMC's letter on the INDUCE Act here: FMC Sends Letter to Senate Judiciary Committee on the INDUCE Act. We would ask the committee to consider the concerns outlined in this letter before voting on legislation that not only impacts copyright owners, but also creators, technology companies and music fans. We urge the committee to push for solutions that preserve the unique architecture and networking capability of the internet yet allow creators, performers, and copyright owners to be compensated for their work. Finally, we remind the committee that musicians and artists are the engine of creation at the source of this debate and thus deserve to be represented as stakeholders at the policy table.
Read the FMC's analysis of the INDUCE Act here: The Need to Strike a Balance: INDUCE Act Attempts to Protect the Content and Attack the Technology. If the INDUCE Act does not pass as is, it may hurt the creative industries. However, if the proposed legislation does pass in its current form, it has the potential to hurt not only the technology industries but also the entire U.S. economy, the effects of which could extend to all Americans. Yet the current debate should not be a question of choosing one industry over another. Ideally there should be a way to protect the content without severely compromising the technology, and any legislation passed that does not balance the competing interests will likely have very negative long-term effects. Holleyman’s five key points appear to be a good starting point to address this complicated issue.
Finally, in attempting to protect copyrighted materials, such groups should be mindful of the potential for illegal file sharing networks based outside of the United States. How will any U.S. legislation prevent consumers from accessing overseas sites to download pirated files? Copyright infringement is a global problem and U.S. legislation alone will likely not be the absolute solution. A comprehensive package containing effective legal relief, consumer education, licensing of content to peer-to-peer services, and an affordable, convenient distribution system that makes it easy to legally download files, as well as additional measures, may be necessary.
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Posted by Ernest Miller
One of the arguments that is increasingly being made is that P2P technlogy is a threat to national security (File Sharing equal threat as terrorism and drugs). The argument is weak (it hurts our economy, so it must hurt our national defense), but it is the rhetorical equivalent of a bomb used to silence opposition. "You're not against NATIONAL SECURITY are you? Then why do you oppose [insert copyright extending bill of the moment]?" One could easily note that most pro-copyright maximalist bills will do more damage to our consumer electronics and computer industries than benefit the copyright industries. However, the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) goes even farther. The INDUCE Act threatens national security by crippling private sector investment in innovation.
The US military's research budget is actually relatively small considering the size of the military and our economy. Except for a few very specialized fields, the military doesn't really make much of a difference when it comes to US R&D. Like everyone else, the US military basically surfs the innovation wave produced by the private sector.
Whether the copyright industries like it or not, P2P is some pretty innovative stuff and will likely prove quite useful to our military. As this interview with Michael Macedonia, the Chief Scientist and Technical Director for the U.S. Army Program Executive Office for Simulation, Training, and Instrumentation Command (PEO STRI), demonstrates, the military is very interested in the communications abilities of peer-to-peer communications capabilities (P2P Goes to War): Macedonia: ...Once we get into the high-bandwidth wireless issues, whether it's 802.11, or it's 3G or 4G, we can actually have huge, peer-to-peer mobile computing environments, because from a military context, having a centralized server is a point of failure, a critical failure node. You don't want to put all your data on one server because once you take that server out, then you've got a lot of blind people with a lot of useless electronics.
Koman: Right. The theory of the way the Internet itself is built.
Macedonia: Then the issue becomes, I have a lot of devices that in a sense become servers themselves. I mean that's the whole idea behind P2P.
Koman: Right. They're devices and servers at the same time. ....
Koman: Back to peer-to-peer--does it seem ironic at all that you're applying some of the concepts that come from some of these services that are fairly subversive, at least as far as the recording industry is concerned. You know, Napster-style ideas applied to military technology.
Macedonia: I don't think it's subversive. The only interesting thing about Napster was that they came up with a really good scheme for sharing music. I mean this subversive thing is just in terms of the way that the RIAA or the MPAA looks at this technology and sees it as a threat to IP rights. [bold in original] Communications technology is critically important to the information-rich modern battlefield. Being able to quickly and reliably be able to share that information under adverse conditions is crucial to success in modern war. However, the INDUCE Act will certainly cripple private sector investment in what are potentially very useful technologies for the US military.
One of the reasons I brought this up, however, is in response to the pro-INDUCE Act remarks of attorney Ralph Oman in today's Boston Globe (Curbing the companies that abet online piracy). At first the article confused me. Oman was discussing how people were constantly testifying before Congress about how the sky was falling, but it wasn't. I initially thought that Oman must be referring to Hollywood, which continues to exist (and even thrive) despite talk of how the VCR, Diamond Rio, P2P, etc. would completely destroy them. In actuality, Oman was talking about those who oppose wildly overbroad copyright laws: One witness predicted that the bill will pull the plug on the VCR, TiVo, and all home taping. Another witness forewarned of a chilling effect on technological innovation. And another stated flatly that the legislation will outlaw recordable DVDs. But, as we also learned at the hearing, the short responses to these dark prognostications are: no, no, and no. In response, I say, "yes, yes, and yes." That was illuminating, don't you think? One might expect a bit of a longer answer to the many criticisms of the INDUCE Act, but the article is mostly only reptition of the idea that act is narrowly focused without explaining how the broad language is narrow. The closest paragraph to an explanation is here: It has been said that if this legislation had been law in the early '80s, the courts would have barred Sony's sale of the VCR. Not so. In fact, Hatch-Leahy would have had no effect whatsoever, since Sony has never enjoyed the legal immunity that the file-sharing "facilitators" have today because of a quirk in the law. Huh? I'm terribly sorry, Mr. Former-Register-of-Copyrights, but I don't see how Sony and the Betamax would have avoided potential liability under INDUCE. I'm not even sure there is a logical claim here.
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: Torrentocracy
What is Torrentocracy? Torrentocracy (pronounced like the word democracy) is the combination of RSS, bit torrent, your television and your remote control. In effect, it is what gives any properly motivated person or entity the ability to have their own TV station. By running torrentocracy on a computer connected to your television, you not only become a viewer of any available content from the internet, but you also become a part of a vast grass roots media distribution network. This is not about the illegal distribution of media, but rather it's about enabling an entirely new way to receive the video which you watch on your TV. If you ever wondered how and when your computer, the internet and your television would merge into one seemless device with access to anything and everything, then at this very moment the theme song from 2001: A Space Odyssey ("Also Sprach Zarathustra") should be resounding through your head. [links in original] I think that Torrentocracy is one of the most exciting projects extant. It is one of the tools that will allow video content producers to route around the broadcast/cable/satellite gatekeepers. Anyone with a video story that strikes a chord with those producing popular RSS feeds (trusted filters) will be able to get their work onto television screens fairly easily and without the bandwidth costs.
However, that is exactly the problem from the point of view of the INDUCE Act. Despite the disclaimers provided for the description of Torrentocracy, it is clearly going to seduce people (especially children!) into engaging in copyright infringement. Oh, sure, Torrentocracy won't host or link to infringing torrents, but that is what you would expect of a "bad actor" trying to avoid secondary liability. After all, the purpose of the INDUCE Act is to go after those who are trying to avoid secondary liability. In the logic of the INDUCE Act, trying to avoid liability is a sign that you're guilty. However, anyone with an RSS feed can point to an infringing torrent and Torrentocracy will dutifully help that continue the infringement.
Moreover, the very words of the author of Torrentocracy condemn the project as having it purpose to destroy standard broadcast through copyright infringement. For example, one post compares the content industries to the doomed Iraqi Bathist regime (The Recording Industry is as Doomed as Saddam) The technological prowess of U.S. forces is the equivalent to the unstoppable nature of peer to peer file sharing. If history does repeat itself, then the music industry should be very worried. P2P is destroying the recording industries ability to profit from the artists they control and at the same time the internet is the oil which might give the artists the resources they need to determine their own fate.
I guess ironically in both cases the American people are just the consumers-- consumers of oil and consumers of music. Rights? Tyranny? What's that all about? Fatten us up, lower our gas prices and drop the price of CDs and we'll be happy. This clearly demonstrates that the author knows P2P leads to infringement. The fact that he's made a great P2P system means that he must have intended to destroy Hollywood.
Furthermore, the author of Torrentocracy condemns DRM and talks about skipping commercials, share recorded programs with friends, and that the content industry needs to be taught a lesson: My tivo thinks I'm stupid: I saw this article on NYTimes this morning about Time Warner/AOL's new tivo like device. I've got to say, I completely agree with BoingBoing. Dubbed "MystroTV", this thing is just horrible. It attempts to be a Digital Video Recorder (DVR) but is laden with DRM to manage your rights (DRM having about as much to do with helping you manage your rights as a ticketmaster convenience charge is about being convenient to you). Unlike tivo, one could not skip through certain commercials with a fast forward button, share recorded programs with friends, and not have full access to record all programs.
This concept product is just yet another example of the failure of old-economy content distribution companies in understanding that the avalanche of technological adoption both current and coming has completely destroyed tradional methods for deriving income. Though I do have strong faith that we'll soon see the tide turning away from such feature crippled products for the sake of "licensing," it does seem for now that these media giants have still not learned their lesson from the music swapping that has already turned the corner and moved straight on to video and whatever else you can imagine sharing. The bubble may have burst, but the chewing gum hasn't lost its flavor. They're screwed, and making crappy products surely won't help them. [links in original] Torrentocracy is a tremendous idea. However, it is a prime INDUCE Act target. And, under INDUCE, dissing the current copyright regime will probably not be helpful in court...who cares about free speech when copyright is threatened?
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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August 08, 2004
Posted by Ernest Miller
Marginal Revolution points out an interesting confluence of interests in the copyfight (Cultural diversity and copyright). Traditionally, many countries attempting to control cultural influences have had quota systems for cultural imports. Countries, such as France, would permit only so many American movies, for example. Hollywood has, of course, strongly opposed this and pushed for cultural products to be regulated like any other import. Until now, cultural products have basically been more or less exempt from free trade agreements.
Of course, this does not mean that the demand for American cultural products went away. With the advent of the internet, people in countries with cultural quotas are accessing American culture by downloading it through P2P programs. To stop this leakage, countries such as France are cracking down on filesharing, which Hollywood likes. However, without their desired cultural products quotas, it is unclear how much interest countries like France would have in regulating P2P.
Interesting, and revealing about how copyright enforcement is a tool of cultural control.
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August 07, 2004
Posted by Ernest Miller
Timothy Wu, professor of law at the Univ. of Virginia's School of Law and prolific guest blogger on Larry Lessig's blog argues that the FCC is having buyer's remorse with regard to the broadcast flag (The FCC wants out of copyright). He bases his conclusion on the fact that the FCC recently approved all thirteen proposed broadcast flag technologies, a decision I mocked here (FCC Bestows Its Blessing on Technological Innovation).
While I believe (but am by no means certain) that the FCC will ultimately regret this foray into copyright law, I am not sanguine about the fact that these first thirteen technologies were approved. After all, only one of the thirteen was opposed. So I don't see the fact that they were approved "without much fuss" to be particularly illuminating. After all, the hard negotiating and compromise took place between the CE/PC and copyright industries long before the technologies were presented for the FCC's blessing.
The fact that TiVo to Go was approved is not very reassuring either. First, at least one of the Commissioners (Kevin J. Martin) was willing to go on the record against the approval (Separate Statement of Commissioner Kevin J. Martin, Approving in Part, Concurring in Part, Re: Digital Output Protection Technology and Recording Method Certifications, Order (August 4, 2004) [PDF]): I am concerned that Tivo’s technology does not include sufficient constraints. All of the other technologies requesting approval from us have adopted proximity controls or similar mechanisms to limit content redistribution outside the home at this time. I ultimately want to enable a person’s digital networking environment to extend beyond the home. I fear, however, that we may be acting prematurely in concluding that Tivo’s affinity controls are sufficient to protect against widespread redistribution. I therefore would have conditioned approval of Tivo’s technology on adoption of proximity controls at this time, and continued to study whether its device limits and affinity controls provide adequate protection. Second, TiVo to Go does not seriously threaten the copyright interests. Sure, they opposed it, but they didn't make that much of an effort. After all, TiVo is struggling in the market and the "ease-of-use" of a system that requires easy-to-lose or misplace registered dongles isn't going to keep MPAA or NFL executives up at night. They were merely trying to see how easy it would be to boss the FCC around. Moreover, it was win-win for them. With TiVo to Go approved against their desires, the broadcast flag system looks more reasonable to those not paying close attention.
The biggest flaw with Wu's argument, however, is that he doesn't explain why the FCC approved the broadcast flag in the first place less than a year ago. The broadcast flag ruling was, to borrow a court term, well-briefed on both sides. It isn't as if the FCC didn't realize what they were doing. Has anything changed in the last year to make the FCC regret their rash judgement?
Some of the FCC Commissioners talk a nice game about deregulation, but one would be hard pressed to see their rulings as a whole over the past few years fit that model. There is the crackdown on indecency, of course. To be expected in an election year after Jackson's wardrobe malfunction, but why did the FCC have to revive the profane language doctrine after decades of nonuse? What of CALEA? What of the mess that is VoIP regulation?
The FCC isn't about deregulation, the FCC is about what's best for the political interests of the commissioners.
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August 06, 2004
Posted by Ernest Miller
Earlier this week I noted what Arlo Guthrie, son of Woody Guthrie, had to say about the JibJab controversy (Arlo Guthrie on JibJab Parody: An "Incredibly Wonderful Bit of Hilarity"). Arlo's daughter (Woody's granddaughter), Cathy Guthrie, has come out in favor of the parody as well: I can speak for myself and my immediate family including my Dad, that we all love it! We've all seen it and passed it along to our friends and family. It's incredibly clever, funny and a nice break from the heavy tones of politics going on right now. My personal opinion is that if I were the one who had written that song, I would be honored to have it used that way. If they start selling that song and making money, then I might be concerned about getting my royalties, but as far as I know, they haven't made any money from showing it on their site for free. That parody was made for you and me. Cathy Guthrie is one half of the Folk Uke duo (the other half of the duo being Amy Nelson).
Cathy Guthrie had emailed Mark Frauenfelder, who is a Ukulele fanatic.
via BoingBoing
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Posted by Ernest Miller
Jeff Jarvis points out where government censorship, such as the indecency enforcement of the FCC, inevitably leads: calls to regulate the news to be "unbiased, impartial and objective" (Unfair and unbalanced). Read Jarvis' acid words and the UPI report on the Congressional threats against the First Amendment (Dem lawmakers say Fox News is unbalanced): Several members of Congress sent a letter Tuesday to Rupert Murdoch, owner of Fox News, to express their opposition to what they say is the network's "unfair and unbalanced" bias towards the Republican Party.
The group, composed of 38 Democrats and Independents from the U.S. House of Representatives, has requested that Murdoch meet with them to discuss their concerns....
"It seems clear that Fox News network has a deliberate bias in favor of, and often serves as an extension of, the Republican Party's policies and ideology."....
A spokesman for Rep. Bernie Sanders, I-Vt., said there were legislative avenues that the group could pursue as a secondary measure but declined to speculate on what those might be. Have these legislators no shame?
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Posted by Ernest Miller
...continue reading.
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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 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: TiVo to Go
Lo, and the multitudes were amazed that the high priests of innovation, the FCC, did anoint TiVo to Go with the permission of the broadcast flag (FCC Bestows Its Blessing on Technological Innovation). And thus, did bureaucratic blessings bestow upon the people the ability to copy a television program on up to 10 separate devices that shall have a reverent (and registered) dongle.
But the FCC was not reading from the book of INDUCE, whereupon the NFL trembled with a mighty wrath, and spoke thus: "TiVo to Go is the whore of copying devices, for it doth seduce the consumer into making copies for friends in the blackout zones without our express written consent." And the MPAA said "Cursed be TiVo to Go, for their monetary success is based upon offering infringing functionality that other companies do not. Let their executives crawl upon their bellies and eat dust all the days of their lives." And the other copyright industries saw that the wickedness of TiVo was great, for it encouraged consumers to think of content as theirs (sort of). And the copyright cartels vowed to blot out unauthorized copying, and distribution and fair use, for they were sorry that they had been permitted.
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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August 05, 2004
Posted by Ernest Miller
Timothy Wu, professor of law at the Univ. of Virginia's School of Law and prolific guest blogger on Larry Lessig's blog, discusses a simple question asked of a group of law professors: what will copyright look like in eight years? (Copyright in Eight Years). Wu's list includes: - Primarily a criminal regime (remember when copyright was considered civil law?)
- Focused on control of the design of hardware & software (in the model of the Broadcast Flag) to prevent infringement ex ante;
- A regime dedicated to preserving the retail market and revenue streams for 4 discs: (CDs, DVDs, Software CDs, and Video-Game CDs), having given up on nearly everything else;
- Made in WIPO or the FCC as often as the U.S. Congress;
- Gone (not a good bet).
- Alternative compensation systems developing outside the U.S.
Non-law professor Ed Felten responds here, and it is from Wu's comment in response that I get the alternative compensation scheme ( Lawprofs Predict Future of Copyright Law). I completely agree with Felten, but would add a few more points.
Copyright law will be increasingly made behind the scenes of WIPO, the FCC and the Copyright Office. Regulatory capture doesn't begin to describe how far in the pocket of the content industries these organizations are. WIPO was built to serve the interests of the copyright cartels and force their will upon governments through international treaty. The Copyright Office loudly pushes an agenda even the RIAA only whispers. And the less said about Michael Powell's "commitment" to free markets and deregulation, the better. With the exception of the FCC to a very limited extent, none of these organization cares remotely about public opinion. Consumer rights simply do not factor into the equation.
Other than my certainty that intellectual property law will be made increasingly outside the confines of representative bodies, I'm not sure what else can be said about it. Eight years ago, would law professors have predicted the emergence of the original Napster, followed by decentralized filesharing services? How about Bit Torrent? RSS? Broadcatching? Didn't think so.
This isn't an argument about technological determinism or triumphalism. I don't know what is going to happen, I just know there will be change. The problem with existing copyright law is that it is not based on any principles. It has devolved into a morass of competing claims designed to protect particular business models and corporate interests. Rapidly changing technology is undermining those long settled compromises between industries and the law can't keep up to maintain the balance. Future technological changes will undermine whatever shifts in the law occur during the next few years. Remember how the DMCA was supposed to solve the problem of the internet?
In eight years, we will have had about four more iterations of Moore's Law, as well as similar growth in storage and bandwidth. In eight years, there should be cellphones with hard drives as big as the drives in the current iPods and capable of out-processing my 4-year old laptop. Everything is going to be capable of massive amounts of storage. I'm not going to venture any more guesses at technology here, but storage increases alone are going to jumble things around even more. How, I'm not entirely sure, but traditional notions of copyright law as compromise and balancing of existing interests ain't gonna cut it. What will happen to copyright law when open source takes over the desktop?
Will copyright law go away? Absolutely not. However, copyright law will have to be based on principle, not traditional corporate compromise.
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Posted by Ernest Miller
As has been widely noted, yesterday, the FCC blessed 13 technologies as compliant with the broadcast flag. Including, TiVo to Go. Oh, heavenly joy! Oh, fortunate day! Our wonderful technological masters, those geniuses of centralized planning, have deigned to bestow on the public the ability to move video files between 10 separate devices with the use of a registered dongle. What visionaries! What prophets, who can see what is appropriate use of technology and what is not!
If only we had had the FCC's sage advice when Sony developed the Betamax. The Supreme Court, in its ignorance, allowed the technology to develop unhindered. What a mistake! Could they not see that there must be regulation to channel and guide the foolish technologists who don't understand how markets function? How dare they create without approval? We must only permit innovation that has been properly considered by government regulators, without which markets would not function efficiently.
Only the FCC has the wisdom to see what is necessary for copyright law to function properly. Courts should certainly not be permitted to interpret copyright law, they might decide that a device without DRM had substantial non-infringing uses and thus be free of regulation. The FCC sees through this ridiculous test and knows copyright needs stronger protection than that. Do the courts not see the devastation the VCR has wrought on Hollywood?
Can not the technology companies see that free and incredibly valuable bandwidth is not enough of a subsidy for broadcasters? Why, that spectrum would go to waste without the FCC's wise guidance on the devices that could receive communication on that spectrum.
All hail the FCC! Let us give thanks for the boons they permit!
Read their glorious words: FCC Approves Digital Output Protection Technologies and Recording Method Certifications [PDF].
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Posted by Ernest Miller
The JibJab lawsuit doesn't seem to be getting much mainstream press, but WIRED continues to take charge of the story (JibJabbing for Artists' Rights). The most recent article talks to a couple of entertainment lawyers who believe it is a pretty obvious case of fair use: "It's a smart move" by JibJab to pre-emptively sue Ludlow, said Steven Eisenberg, an attorney with law firm FeldmanGale in Miami, and current chair of the Florida Bar Association's entertainment, arts and sports law section. "They took the bull by the horns. I think they've got a great claim. It's clearly parody, satire and political commentary. This is exactly what fair use was created for."
"It strikes me as a particularly strong case for fair use," said Arnold Lutzker, an attorney with Lutzker, Lutzker & Settlemyer. "It doesn't strike me as a particularly complicated case." [links in original] Canada's Globe and Mail has a short article about the JibJab saga ( Cartoon creators sued). Newsforge has a feature on patent and open source that has an interesting paragraph on JibJab ( A fresh -- and optimistic -- take on patents and open source): And an undetermined number of other patents on the list of 283 may be held by companies that offer no viable products or services and, in many cases, exist only to sue productive companies and people over patents (or patent rights) they have acquired one way or another, much the way Ludlow Music has jumped on JibJab for their hilarious "This Land" parody even though the original "This Land is Your Land" song was not written by Ludlow Music. (Indeed, its composer, Woody Guthrie, was a notorious song-sharer who would probably be doing benefits for the EFF's patent busting efforts if he were still alive.) [links in original] That's not a bad idea. Woody isn't available, but maybe Arlo could be convinced to do an EFF patent busting benefit.
The popularity of the parody continues. Say Uncle reports that his 4-year old nephews were singing the JibJab version (It’s official: everyone has been to Jibjab).
UPDATE 1130 PT
MIT's Technology Review has a short column on the controversy (This Land is Your Land, This Song Is Not Yours). [via Blogbook.org]
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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: P2P Congress
I discussed the launch of P2P Congress yesterday (P2P = Patriot to Patriot). Basically, P2P Congress uses popular filesharing networks to distribute large public domain media files, such as Congressional hearings. This reduces bandwidth costs and engages sharers in democratic discourse, even it at only a very basic level. P2P Congress uses such popular filesharing networks as Bit Torrent, Limewire, and eDonkey. Good idea, right?
Here's the problem, though. What happens to P2P Congress when the INDUCE Act is used to shut down these various networks? They're decentralized, so putting the company behind them out of business won't shut down the network itself. This may leave organizations like P2P Congress in an awkward position. A court will have declared the company that created and supported the network illegal, but what then of the other organizations that continue to support the network afterwards? Seems to me that would make other supporters inducers as well, especially after a court decision against the technology. How could you not know that supporting a particular network was inducement if a court just declared another company supporting the same network to be guilty? It is not as if the standard is specific intent. (And do I need to mention that the organizations behind P2P Congress are a who's who of copyfighters?)
I suppose it is possible that one could find, for example, eDonkey to be guilty of inducement and P2P Congress innocent, but that would mean that the INDUCE Act would do nothing to stop P2P filesharing. You could shut down the filesharing companies, but the filesharing would continue. That would mean that the INDUCE Act was all but useless, and that couldn't be, right? I mean, Congress would never pass a law with all sorts of clear harms and no clear benefits, would it?
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
The Washington Post (annoying reg. req.) reports that state attorneys general are rather unhappy with the illegal activity taking place through email networks (States Warn Email Providers): More than 40 state attorneys general are set to warn major email providers that they may face enforcement actions if they do not take steps to stem illegal activity on the networks, such as the emailing of child pornography and stolen movies and music.
In a letter to the heads of Microsoft, Google, Yahoo!, AOL, and the Apache Software Foundation, the attorneys general write that email software "has too many times been hijacked by those who use it for illegal purposes to which the vast majority of our consumers do not wish to be exposed." Oh, wait, that didn't happen. Instead, the state attorneys general warned "major peer-to-peer file-sharing networks" and the WashPost's article was titled "States Warn File-Sharing Networks." The companies warned were Kazaa, Grokster, BearShare, Blubster, eDonkey2000, LimeWire and Streamcast Networks. Heck, I'm surprised the attorneys general were smart enough not to send a letter to "Gnutella" at 1 Protocol Lane.
But given their condemnation, why shouldn't the state attorneys general condemn email and FTP as well? An awful lot of child porn is shared via email. Shouldn't email providers be doing more to stop it?
Unfortunately, the article doesn't provide the letter and there isn't enough information to know what, exactly, has the state attorneys general upset and what they expect P2P networks to do about it. One thing we do know, the state AGs don't like privacy: The state officials also ask the networks to stop adding encryption features to their networks that they say prevent law enforcement agencies from policing the networks to determine whether they are aiding illegal activity.
The encryption measures "only reinforce the perception, as well as the reality, that P2P technology is being primarily used for illegal ends," the letter says. In related news, the state AGs noted that people who exercise their constitutional rights, such as the right against self-incrimination, "only reinforce the perception, as well as the reality, that civil liberties are being primarily used for illegal ends."
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August 04, 2004
Posted by Ernest Miller
USA Today publishes an AP wirestory about the recent prosecution of a copyright infringer who was a member of the warez group DrinkorDie (Washington state man sentenced for copyright infringement). In return for no jail sentence and a $6,000 fine, the defendant provided information on other member's of his group: Burns departed from minimum sentencing guidelines of 33 to 41 months imprisonment, noting Myers' cooperation in exposing and breaking up several warez groups. Another reason why darknets will be invulnerable to legal attack. If you keep them small, you'll be safe, but subject to the social controls of the group. If they grow too large, they'll become vulnerable to legal attack.
Darknets will be a significant part of our filesharing future, I believe, but they won't be perfect substitutes for the current, open filesharing networks. Ultimately, I think they will be supplemental and complimentary to licensed filesharing networks.
via BNA's Internet Law News
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Posted by Ernest Miller
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Posted by Ernest Miller
WIRED's Xeni Jardin reports on P2P Congress, a new project dedicated to making congressional hearings available through P2P filesharing networks in order to reduce bandwidth costs and engage citizens in democracy (Group Wants to Induce Downloads). P2P in this case stands for "Patriot to Patriot."
The government webcasts some of it hearings, but doesn't make them available for later viewing over the internet. Wouldn't want the people to have too much access to information about what the government is doing, I guess. So, the people will make the hearings available, but bandwidth is expensive, so it makes sense to share the bandwidth costs. Enter the latest peer-to-peer filesharing networks, which can effectively share the bandwidth costs of democracy. Frankly, I'm disappointed that the US government isn't using these technologies to reduce bandwidth costs for the taxpayer.
The first hearings available are, of course, the Senate Judiciary Committee hearings on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Why? Because the INDUCE Act intends to make this democracy-enabling technology illegal.
Join the network, share the load.
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: Battle Torrent
Those anti-copyright activists over at Downhill Battle are at it again. Yesterday, they announced a new software development initiative to make using BitTorrent easier than ever. Check out the goals of the Battle Torrent Project: - To make it completely effortless for complete neophytes to download torrent files.
- To make it as easy as possible for people who have websites to set up their own torrent tracker.
- To make sharing a torrent as fast and easy as posting a file to a website.
The ostensible purpose of this project is to facilitate legitimate filesharing, but that is what all the "bad actors" say: If we pull this off--and we can-- we'll have made sharing four-gigabyte files as easy as sending an email to your friend [or a million of your closest friends]. And that will change our culture significantly [by destroying copyright]. If distributing large media files becomes easier, people will create more of their own works and will experience more work created by other individuals [create their own, yeah, sure]. The site all but admits that it is about copyright infringement. Notice how they use an example of an infringing work: Instead of downloading the torrent file, the user downloads an executable that contains a fully functional bittorrent client and the torrent file (say, "The_Grey_Album.torrent"). When the user runs it, the program begins downloading the Grey Album. As everyone knows, the Grey Album is an illicit derivative work. The screenshot they use also shows the real, infringing use of the system by showing how the system can be used to share a copyrighted work, in this case the TV pilot Heat Vision and Jack, as well as a derivative work, Michael Jackson's Thriller, as realized in Lego ( another questionable technology).
And don't even get me started on all the evidence of intention to induce infringement on the main Downhill Battle website. Sure, Battle Torrent might be a great idea for letting people publish bulky files and engage in free expression, but that is precisely why the INDUCE Act will have to outlaw it.
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
WIRED reports that 321 Studios has closed it doors thanks to multiple DMCA lawsuits and injunctions against it (321 Studios Shuts Its Doors). From 321's website: Thank you for visiting 321 Studios. 321 Studios regrets to inform you that it has ceased business operations including, but not limited to, the sale, support and promotion of our products. Despite 321 Studios’ best efforts to remain in business, injunctions entered against 321 Studios by three US Federal courts earlier this year has resulted in 321 Studios no longer being able to continue operating the business. The company had been most famous for selling DVD backup software. [ via We the Media]
C|Net News has an even more distressing report on the future of open source software (Linux, digital rights on collision course). Martin Fink is the Vice-President of Linux for Hewlett-Packard and responsible for the Linux and Open Source strategy across the entire company. From the article, Right now there is a risk that DRM adoption will lock out Linux and open-source software, Fink said. "Unfortunately, DRM and open-source software are today largely incompatible because of an extension to copyright law called the Digital Millennium Copyright Act," Fink said. Critics of the DMCA have been saying this ever since the seriously flawed bill was passed. Of course, I wonder how Fink feels about working for a company whose president declared fealty to DRM and the DMCA earlier this year ( HP Goes Off the Rails).
Tim Wu continues his guest blogging on Lessig's blog with a post about the lack of controversy regarding adding the DMCA and copyright term extension to international treaties (The DMCA: Not controversial). The complaint is that the DMCA and term extension are not seen as controversial. Here are two of the reasons for this:
First, there is public choice theory. For example, the interests of the copyright cartels are concentrated and relatively easy to coordinate, while the opposition's interests are diffuse. Moreover, our politics are tilted to favor the business interests of the large media conglomerates. For too many reasons to go into here, fighting the copyright cartels is naturally going to be an uphill battle.
Second, those involved in these negotiations are well aware of the controversy, but they don't care. For example, the intellectual property negotiations for FTAs include representatives of the Copyright Office. The Copyright Office likes the DMCA. Heck, the Copyright Office supports the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) and even wants Congress to overturn the Sony decision (Copyright Office on INDUCE Act (IICA): It isn't Strong Enough). Despite calling to make the next generation of VCRs illegal, Mary Beth Peters, Register of Copyrights, still has her job.
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August 03, 2004
Posted by Ernest Miller
Scott Kurtz, creator of the wildly successful online comic strip PvP has thrown down the newspaper syndication gauntlet (SDCC 2004 - Part Four). His fine rant recognizes that the economics of comic syndication has shifted dramatically, particularly in markets (most of them) where there is no newspaper competition. Unfortunately, the comic syndicates are not changing to match the times. When Kurtz was looking into newspaper syndication, the syndicate demanded ownership of the strip, despite the fact that it was a successful established online strip. Big mistake for the syndicate. But I've already become attached to the idea of seeing PvP in the papers, and that's why I've decided to start a new program. In the coming months, I'll be putting into effect, a program in which papers can receive PVP for free. That's right, free. They don't have to pay me a cent for it. I will provide for the papers, a comic strip with a larger established audience then any new syndicated feature, a years worth of strips in advance, and I won't charge them a cent for it.
The exposure and prestige of PvP appearing in daily papers would more than pay for itself in a months time. In exchange, I can offer the papers a comics feature that's tried and tested, funny and best of all, free. They have nothing to lose or risk financially. They can see, in advance, a years worth of strips so they don't risk me flaking out on them. Most of all, I can provide them with yet another bargaining chip against the very syndicates. This is the perfect climate to take this step. Will it work? Will any newspaper give it a try and risk the anger of the syndicates, who are dead men walking but still powerful? That isn't clear. But if it does, yet another traditional copyright cartel will bite the dust.
Another highly recommended "read the whole thing."
via MetaFilter
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Posted by Ernest Miller
According to a report from a German Macintosh news site (Macnews.de) via the Mac News Network, Apple's own iMovie software will strip FairPlay DRM from iTunes music (Report: iMovie strips FairPlay DRM from iTunes songs): The site reports that Apple's own video tool can be used to create unprotected song files that be played on any computer without recompression, circumventing iTunes' DRM protection. iMovie users can use the "Share" feature of iMovie to export any imported (protected) song from the iTunes Music Store. The exported songs can either be stored in the un-protected AAC file format (used by Apple at the iTMS) or in the raw WAV file format; both of these formats are supported by iTunes. If true, this would certainly be an embarrasment to Apple. I'm not sure what all the legal implications are. For example, would this be an excuse for Real to sue Apple for DMCA violations? What about the copyright holders, both those who encoded their music through iTunes (probably a contractual issue) and those who used Real's Helix DRM (why not the DMCA)? See, Can Real Sue Apple Under the DMCA?.
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Posted by Ernest Miller
Andrew "Werdna" Greenberg is the Vice-Chairman of the Intellectual Property Committee for the IEEE, and he testified about the Infringement of Copyrights Act (IICA, née INDUCE Act) during the Senate Judiciary Committee hearing (Protecting Innovation and Art while Preventing Piracy). A summary of his testimony here: Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition.
I only recently discovered that Greenberg has a blog, Hacking the Law (motto: The world through the eyes of a technologist turned lawyer). The posts are infrequent, but that is what RSS is for. Anyway, last May, he posted a fable that seems rather prescient now that the INDUCE Act has been introduced (The Luddite's Lawyer and the Perils of Technology Regulation). Here is but a small sampling: "First, you paint," said the lawyer [to the Luddite], turning a knowing smile. "Then, I write writs."
Confused, but trustful, the Luddite painted. He painted furiously. He painted from his heart and soul. He painted with his all, trying to express how the machines have ruined us. Alas, he was no artist.
The Luddite bowed his head in dismay. Despite his passions, the works were vapid, dull and derivative. He knew this at once. Every theme, every motif, every stroke came from the far more enlightened works of those who have come before him. Every idea embodied in the work was that of another.
"That does not matter," said the Lawyer. "All of that may be true, but these works are original, at least in the technical sense of originating from you. Since you have put them on that canvas yourself, we have done what we set out to do."
A work of original authorship was fixed in tangible media. A copyright was born.
The Luddite's lawyer wrote writs. He sued machines. He sued the makers of the machines, and he sued the sellers of the machines. He sued and served them all. Read the whole thing.
In other INDUCE Act news...
EFF has written a letter to the Senate that argues in favor of business solutions to the filesharing problem, not new legislation (EFF's Letter to United State Senators). Actually, I think we need both. Not the INDUCE Act, of course, but I don't think we can really solve the filesharing problem without fixing copyright law, which (it is increasingly obvious) is broken.
An eWeek column calls for more lobbying coordination by the tech industry (IT Advocacy Group Still Needed). He has a point. I haven't even found a website for the new Personal Technology Freedom Coalition that was founded last June. Come on guys, you should be doing better than that.
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
Arlo Guthrie, folk singer son of Woody Guthrie, was recently interviewed on NPR regarding the JibJab controversy ('This Land' Parody Riles Rights Holder). For those who don't want to use Real, I've transcribed the relevant parts: Q. So how did your father feel about the use of his songs? Did he regard them as his private intellectual property or were they for the public use?
A. Well, I think, both. He was one of those guys that wrote a lot of songs and he said on numerous occasions that he wasn't really concerned about the money part of it, the publishing, the business part. He was more interested in getting the ideas out. And, having said that, he did set up in motion, he did give these songs to the Richmond organization, a lot of them anyway, to safeguard them and to protect them over the years. So I think there is a little bit of both.
Q. Your father was a political musician. What do you think he would have said about people using his music for political purposes?
A. Well, I really can't speak for him. I can just tell you that when I saw it a few weeks ago I thought it was one of the funniest commentaries if not one of the most directly inspired... I called my sister, I called my friends, I sent everybody a link to the site so that they could go see it. And we've all been laughing about it since then. I think my dad would have absolutely loved the humor in it.
Q. What else does your family have to say about it? Do you have any influence with the Richmond company?
A. Well, we probably do, but on the other hand, they don't call me for legal advice and I don't ask them for moral advice. It's a business operation. I think the thing that has concerned them, if what I've read is true, is that the parody doesn't overcome the song. There is this old song, "On Top of Old Smokey," that was a hit back in the fifties. No one remembers that anymore, we all remember "On Top of Spaghetti." I don't think that is a problem with this song because in three months it will be a moot point. It will have lost the humor and not be around forever. So, I don't see what the major complaint would be.
....
I don't think that this JibJab version of "This Land is Your Land" is going to replace the original song and it doesn't really compromise it. I think it makes fun of both of these guys to some extent. I just think it is incredibly wonderful bit of hilarity in the midst of an overserious conversation. Bonus: Guthrie was interviewed at a Flying J truckstop in Des Moines, Iowa.
See also, NPR's discussion of This Land is Your Land as one of the top 100 American songs shaping the twentieth century (NPR 100: This Land Is Your Land). The 13-minute feature includes a discussion of the fact that the underlying melody is borrowed.
For those who missed it, EFF officially announced their lawsuit on behalf of JibJab (JibJab Files Suit): As has been widely reported, EFF has filed suit on behalf of JibJab to defend the "This Land" animated short. As we reported last week, music publisher Ludlow Music Inc., owner of Woody Guthrie's "This Land is Your Land," had threatened copyright litigation against JibJab. In light of the July 30 deadline that Ludlow had set down in its threat letters to JibJab and its upstream hosting providers, we felt we had little choice but to file suit to defend JibJab's fair use and free speech rights.
Both sides continue to exchange correspondence, and JibJab hopes this dispute can be resolved without further litigation. For the reasons discussed in our July 28 letter to Ludlow, we continue to believe that "This Land" is a fair use, especially in light of the fact that Woody himself borrowed the melody from an earlier song.
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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: Universal Turing Machine
I just read about this new technology, a Universal Turing Machine, and although I'm not well-versed in the complex mathematics of it all, I'm pretty sure that any single Universal Turing Machine can simulate any Turing Machine. According to the Alan Turing Scrapbook: A Universal machine is a Turing machine with the property of being able to read the description of any other Turing machine, and to carry out what that other Turing machine would have done. It is not at all obvious that such a machine, a machine capable of performing any definite method, could exist. Intuitively one might think that tasks of greater and greater complexity would need machines of greater and greater complexity. They do not: it is sufficient to have a specific, limited, degree of complexity, and then greater amounts of storage capacity for more laborious tasks. Turing gave an exact description of such a Universal machine in his paper (though with a few bugs). Clearly, these "Universal" Turing Machines need legal controls, such as the INDUCE Act, in order that they not be abused for copyright infringement by those who would simulate copyrighted descriptions of other Turing machines.
Turing machines seem pretty simple, so I can't imagine why someone would need a "universal" one. Why not just build more of the single-purpose Turing machines? The only possible use I can see for a "universal" Turing machine is to copy what another copyrighted Turing machine does. If you give people a Universal Turing Machine, they will inevitably be induced to infringe copyrights with it. Any "reasonable person" can see that UTMs are, in reality, the most perfect copyright infringement devices ever invented.
Clearly, such infringement is what this Alan Turing fellow had in mind. After all, he was a hacker. One of the very first uses of his Turing machines was to circumvent DRM access controls! He, personally, spent many years of his life trying to read copyrighted material that didn't belong to him. Without a doubt, he is one of the "bad actors" that Sen. Hatch has in mind as the target of this bill.
Honestly, if these "Universal Turing Machines" become common, the copyright industry is sure to be destroyed!
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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August 02, 2004
Posted by Ernest Miller
Teleread has been relentlessly requesting information about copyright and tech policy from the Kerry/Edwards campaign for months now (back when it was just Kerry). See, for example, this post from the end of June: Still wanted: Copyright answers from John Kerry's policy people in photo below. Teleread's most recent post on the issue looks at the tiny tidbit of innovation policy in Kerry's acceptance speech (John Kerry's chip against high tech): Think about the copyright-related implications that Kerry unwittingly raised in his speech:A young generation of entrepreneurs asked, what if we could take all the information in a library and put it on a little chip the size of a fingernail? We did and that too changed the world forever. Hmm. Dream on, John. The biggest obstacle isn't the tech; it's campaign contributors. How fascinating that you talked about a library on a chip -- the very stuff gives copyright holders nightmares! And yet your policy advisors blew me off when I tried to educate them about Bono and also interest them in innovative ways of paying content-providers. Of course, the real action isn't in libraries on a chip. It's in networked libraries. [emphasis, links in original] C|Net News's Declan McCullagh now weighs in on Kerry's tech policy ( John Kerry's real tech agenda). McCullagh does a good job summarizing Kerry's position's on tech from his Senate votes and statements. The record is definitely not positive when it comes to copyright: A careful review of Kerry's history in the Senate shows that his record on technology is mixed. The Massachusetts Democrat frequently sought to levy intrusive new restrictions on technology businesses that could harm the U.S. economy. He was no friend of privacy and sided with Hollywood over Silicon Valley in the copyright wars. I've blogged about Timothy Wu, professor of law at Univ. of Virginia's School of Law, before ( It's All About the Distribution - Free Speech, Telecomm and Copyright). He is one of the most important new voices in information law, but more about that in another post. Anyway, he is guest blogging on Larry Lessig's blog and one of his first posts asks whether a Kerry administration would veto the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) ( The Question). There is some good discussion and information in the comments.
My take on this? Well, you're reading aren't you?
First, this is a non-partisan question. We should be asking both the Bush and Kerry people what their position on INDUCE is, especially as Sen. Orrin Hatch (R-UT) wants to pass the bill during the current term. Who really cares whether Kerry would veto it if Bush signs it into law? Indeed, if Bush spoke out against it, I highly doubt it would pass anytime soon.
Second, unfortunately, I doubt we will get much of an answer from either camp. The copyfight movement is simply too small and there are other issues that are much more important. Leftist copyfighters are unlikely to switch votes because Bush promises to stick it to Hollywood, and conservative copyfighters are unlikely to switch if Kerry turns on his Hollywood money donation machine. In such a situation, why should a politician stake out a clear position? Kerry will likely talk about protecting and promoting innovation, while protecting the rights of copyright holders and creative artists.
These are important issues, of course, but that doesn't mean they will be treated as important. Certainly, the copyfight won't be treated as important this election cycle. But that doesn't mean we should stop talking about these issues and pressing the campaigns on them.
However, Dave Winer's idea is probably not the best way to go about it (What the bloggers should have done at the Democratic Convention). Winer proposes that bloggers at the conventions lobby on behalf of the copyfight. However, that mistakes the purpose of conventions. They aren't there for lobbying. Moreover, that would be the fastest way to get disinvited to the next convention. Why would either party invite self-described lobbyists and, if they did, who would choose which lobbyists they should invite?
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Posted by Ernest Miller
The Daily Texan reports that the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) has raised the ire of several higher education organizations (Bill proposed to strengthen copyright laws). The article also has a bizarre quote from one of Sen. Orrin Hatch's spokespeople: Tapia did not comment on the specific concerns voiced by the higher-education groups, but did say the bill will only target bad behavior that is already illegal. Ummm, if these acts are already illegal why do we need a new law? And when will the Senator comment on the many and detailed criticisms of his bill?
The main (and more important) point of the article is that the American Council on Education, Association of American Universities and the National Association of State Universities and Land-Grant Colleges sent a letter to Sen. Hatch opposing the INDUCE Act. Read the 2-page letter here: Letter to Sen. Hatch, July 22, 2004 [PDF]. [W]e are concerned that the broad concepts of “aiding,” “abetting,” or “inducing,” and the uncertain standard of imputed intent, will increase the risk that colleges and universities will face claims of infringement when they develop and provide to students and faculties high-speed computer networks and beneficial new applications that will dramatically enrich educational programs, open new possibilities in the conduct of research, facilitate research collaboration, and enhance communication of research results. These new risks threaten to chill educational innovation and the advancement of knowledge. Indeed, some of the opportunities in distance education made possible by the TEACH Act, which owes its existence in large measure to your support, could be constrained by S. 2560 as currently constructed. The letter acknowledges and supports the ostensible purpose of the bill (reducing copyright infringement), but rightly argues that the current bill is overbroad.
In other INDUCE Act news:
The INDUCE Act Blawg has a couple of interesting posts. The first deals with the meta-free speech issues involved in stifling technology (Free Speech Implications of INDUCE). I discussed some of the direct impacts on free speech here: INDUCE Act is Free Speech Killer. The other article deals with the debate over Chicken Little and the SavetheiPod campaign (In defense of 'Chicken Little'. My previous contributions to this debate here: Are the Opponents of the INDUCE Act (IICA) Claiming that the Sky is Falling? and INDUCE Act (IICA) Press Roundup - 29 July 2004.
Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.
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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 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: Cellphones with Hard Drives
I have to admit, this one is a bit farfetched. However, try to imagine a cellular phone company that isn't evil and actually believes in simply being a conduit for data without trying to control how that data is used or get paid for anything more than providing service. Yes, it might be hard to imagine a cellphone company like this, but give it your best shot.
As hard drives (and digital storage in general) get smaller and cheaper (for example, Toshiba Whips Out Tiny Hard Drive, Smacks Apple), undoubtedly we are going to see cellphone storage increase tremendously. Let's see, a communication device with tons of digital storage? Sounds exactly like something the INDUCE Act would ban. Putting communication and storage together is just asking for trouble if the INDUCE Act passes.
Luckily, however, we probably won't have to worry about it, since cellphone companies are rushing to encrypt and lock down their systems so that only the information and data they want to flow, will. How are they going to charge $2 for a new ringtone if people can download them from the internet? For example, one could provide MP3 capability for cellphones, but Motorola and Apple have signed a deal to provide DRM encrusted music instead (Apple - Moto ‘iPhone’ deal full of promise...).
Indeed, the first cellphone company that decides to offer a phone with MP3 capability and no DRM, because their customers would benefit from an open system, would be targeted. After all, the RIAA would claim that the company was not offering this theoretical open source phone to benefit the customers, but rather, to benefit internet pirates and profit from copyright infringement.
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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