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About this Author
Ernest Miller 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 @
Copyfight
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Listen to the weekly audio edition on IT Conversations:
The Importance Of ... Law and IT.

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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Monthly Archives

September 30, 2004

"All-Star" Drafting Team to Create New INDUCE Act (IICA) by Close of Business Tomorrow

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Posted by Ernest Miller

According to Public Knowledge:

An all-star game of private sector legislative drafters will start at 10:30 tomorrow. There will be representatives from consumer electronics, Verizon, CDT, and others on our team and from the usual suspects on the other team. They are supposed to produce a draft by 4 p.m. That draft will then be, probably revised, to see if it can be marked up next week.
Why on God's green earth does Sen. Orrin Hatch (R-UT) think this is a reasonable way to set internet innovation policy? There will apparently be no significant reflection or debate, just a rush job at the end of the session.

Unbelievable.

Comments (1) + TrackBacks (0) | Category: INDUCE Act

Report from the INDUCE Act (IICA) "Negotiations"

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Posted by Ernest Miller

Apparently, Sen. Orrin Hatch's staff believes that the Senate Judiciary Committee would be criticized if forwarded a copyright bill and criticized if it didn't. Criticized by who? The citizens of Utah? Are the people of Utah pushing ths bill? Will Sen. Hatch be voted out of office if the INDUCE Act isn't passed?

Sen. Hatch himself was quoted as saying that he wanted the people in the room to write the "doggone" bill and that if they didn't he would. He also was quoted as saying, "if the bill isn’t done this year, it will be done next year."

Great.

Comments (1) + TrackBacks (0) | Category: INDUCE Act

Content Industries Meet with Sen Hatch Prior to INDUCE Act (IICA) "Negotiation"

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Posted by Ernest Miller

Yesterday I noted that instead of a regular bill "markup" there was going to be a massive negotiation among some of the stakeholders regarding the INDUCE Act (IICA) (INDUCE Act (IICA) Massive Negotiation Session Tomorrow).

Today, an anonymous source familiar with the process has told me that before the main meeting, which is taking place as I post, there was a separate meeting between Sen. Orrin Hatch (R - UT) and the content industries alone. Have to put together a united front, I suppose.

Comments (0) + TrackBacks (0) | Category: INDUCE Act

September 29, 2004

INDUCE Act (IICA) Massive Negotiation Session Tomorrow

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Posted by Ernest Miller

Word is that there will be no markup of the INDUCE Act (IICA) tomorrow as had been previously promised. "Instead, the Hatch staff has invited a bunch of people, most of them content people, to a massive negotiation session at 1 p.m. in Dirksen 226. This is not a public meeting, but could be staked out. MPAA, RIAA, BSA, AOL-Time Warner were invited. Consumer Electronics, CDT, Verizon among others."

At what point will our representatives in Washington figure out that this is probably not an intelligent way to determine internet innovation policy for the nation?

Comments (2) + TrackBacks (0) | Category: INDUCE Act

INDUCE Act (IICA) Continues to Threaten

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Posted by Ernest Miller

Concentrate on some other things for a few days and you fall hopelessly behind. I'm also feeling very frustrated that a handful of Senators are still trying to push through the innovation-crippling, free speech-threatening INDUCE Act on behalf of an industry with disproportionate lobbying efforts and profile. It is very sad, especially when I consider the pernicious effect it will have on our political culture for many years to come (the subject of another post). Anyway, simply to catch up, here are some more links:

Copyfight:

INDUCE Act Blog:One final point. Copyfight pointed to an email sent by the group behind the Grammy's encouraging artists to support the INDUCE Act (Induce Boosters Send Email to Grammy Members). If artists think that it is in their interest to significantly increase the power of the publishers as against all others, they are sadly mistaken. When copyright law becomes even further unbalanced, it becomes a burden on artists just as much, if not more than, consumers.

Comments (0) + TrackBacks (0) | Category: INDUCE Act

Intellectual Property PAC Launches

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Posted by Ernest Miller

Cool:

IPac is a nonpartisan group dedicated to preserving individual freedom through balanced intellectual property policy.

We believe that technological innovation and individual creativity are vital to the future of this country. We believe that a prosperous and democratic society depends on freedom for all individuals to pursue scientific invention and artistic expression. Unfortunately, new intellectual property laws threaten to stifle these freedoms and restrict public participation in science, art, and political discourse. [link added]

The principles are here: IPac Statement of Principles:
  1. Creators of ideas and inventions have the right to be compensated for their work, but not to limit political expression, veto technological innovation, or restrict education and scientific research. [read why]
  2. Intellectual property laws should be judged by their potential to foster new creativity, as required by the U.S. Constitution. [read why]
  3. Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits. [read why]

Comments (0) + TrackBacks (0) | Category: Copyright

September 28, 2004

Doc Searls on the iPod Platform

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Posted by Ernest Miller

I've written about the iPod platform before (Broadcatching on the iPod Platform). Indeed, I started an audio program to take advantage of it: The Importance of ... Law and IT.

The idea is clearly catching on quickly.

Doc Searls has some interesting things to say about the concept (DIY radio with PODcasting):

Since the Net and the Web came along in the early and mid-90s, I've had a growing impatience with waiting around for stuff on the radio I might care about. Another way to look at it: All radio, commercial and noncommercial, including what we call the "content", was turning into the same kind of stuff-to-endure as the advertising and promotional announcements that paid for it.

But now most of my radio listening is to what Adam Curry and others are starting to call podcasts. That last link currently brings up 24 results on Google. A year from now, it will pull up hundreds of thousands, or perhaps even millions.

Good stuff.

UPDATE 1430 PT

Dan Gillmor jumps on the bandwagon (iPodding, and Why it Matters):

I've been increasingly blown away by the potential of what Adam Curry, Dave Winer and others are thinking about -- and now doing -- with Web audio. The word for this is "podcasting," delivering audio to MP3 players like the iPod. I'm working on a column about the genre, but if you're interested you should read this explainer by Doc Searls. This is going to be a big deal, sooner than you think.
Yep.

As Searls notes, there are going to be legal challenges to the companies that begin to put this all together because it will challenge traditional broadcasting. Too bad the legal challenges are already squelching the television equivalent.

Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting

September 24, 2004

Staff Draft of INDUCE 2.0

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Posted by Ernest Miller

The Senate will likely be doing a markup of the Inducing Infringement of Copyrights Act of 2004 (IICA, née INDUCE Act), next Thursday, September 30th. The draft they will be working off has just been released. It is much closer to the original version of the bill than the version produced by the Copyright Office a couple of weeks ago.

Read the 4-page staff draft of INDUCE 2.0: Staff Draft S. 2560 - Inducing Infringement of Copyrights Act of 2004 [PDF].

The bill is much more narrowly drafted with carve outs for everything that EFF had in their original mock iPod complaint: iPod, the maker of the hard drives and C|Net for reviewing it are also presumably protected (Prelude to a Fake Complaint).

However, the bill retains many of the provisions, including the incredibly vague "reasonable person" standard, as well as other issues.

In any case, this is not the final draft, but only something that will be futher changed at the markup next Thursday and there may be other drafts released between now and then.

More later...

Comments (2) + TrackBacks (0) | Category: INDUCE Act

September 23, 2004

CBS Investigation Will Look Into Stonewalling

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Posted by Ernest Miller

Contrary to my post yesterday, the investigation will look into the post-broadcast stonewalling (CBS Investigation Only on Process to Broadcast - Not Stonewalling). According to the Wall Street Journal, which is subscriber only (Viacom Unit Commissions Republican, Ex-AP CEO For Probe of '60 Minutes'):

Mr. Boccardi, who retired from the AP in 2003, said the panel would study not only the process by which the Sept. 8 report anchored by Dan Rather was prepared and broadcast, but also the network's reaction to questions challenging the piece after it aired. CBS and Mr. Rather initially stood firmly behind the story and the documents and that has generated almost as much criticism as the report itself did.

"That is very much part of what we're going to look at," Mr. Boccardi said

A CBS spokeswoman said the primary focus of the panel is the reporting of the story itself, not the aftermath. While there is no timeline for the panel to conclude its investigation, she said the hope is "it moves along at a good pace." [emphasis added]

I'm glad that Mr. Boccardi recognizes the importance of the aftermath issues. Still, one might think that CBS News should have mentioned that in their statement yesterday and the spokeswoman not been quite so dismissive of the aftermath investigation.

Comments (3) + TrackBacks (0) | Category: Blogging and Journalism

FCC's Janet Jackson Ruling Wildly Inconsistent

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Posted by Ernest Miller

Yesterday, the FCC finally decided to fine CBS for the inadvertant baring of Janet Jackson's breast during the Super Bowl XXXVIII. Read the press release: FCC Proposes Statutory Maximum Fine of $550,000 Against Viacom-Owned CBS Affiliates for Apparent Violation of Indecency Rules During Broadcast of Super Bowl Halftime Show [PDF]. This ruling has been expected for some time, so you would think that the FCC would have put a little more effort into the Notice of Apparently Liability.

Read the NAL: Complaints Against Various Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show [PDF]. It's a total of 33-pages, but about half of it is more-or-less useless appendices.

I'm too tired to fisk the whole darn thing, so I'm simply going to make a few points. Read on...

...continue reading.

Comments (6) + TrackBacks (0) | Category: Freedom of Expression

The Importance of ... Law and IT: The INDUCE Act 2.0

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Posted by Ernest Miller

The fourth episode of my audio series, The Importance Of ... Law and IT, is up on IT Conversations.

This show focuses on the Inducing Infringement of Copyrights Act of 2004 (IICA, née INDUCE Act), with some emphasis on the recent draft from the Copyright Office.

Get the show here: The INDUCE Act 2.0.

There was really not too much I had to do in this show except let two excellent experts and advocates explain what is going on with the INDUCE Act:

Many thanks to both of them for an excellent show.

During the show, Greenberg noted that there are also several other alternatives to the INDUCE Act. You can find out more about them here: 'Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News.

Read on for the letter Wattles sent to key Senators regarding the bill just days after the show...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Audio Edition | INDUCE Act

September 22, 2004

CBS Investigation Only on Process to Broadcast - Not Stonewalling

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Posted by Ernest Miller

CBS News has announced a panel led by two distinguished Americans to look into the memogate scandal (CBS News Statement On Panel). Unfortunately, it seems that CBS News only wants to know how the forgeries got on the air and not look at the actions of CBS News after the memos were broadcast.

The Honorable Dick Thornburgh, former governor of Pennsylvania and United States attorney general under Presidents Ronald Reagan and George H.W. Bush, and Louis D. Boccardi, retired president and chief executive officer of the Associated Press, will comprise the independent review panel that will examine the process by which a recent "60 Minutes Wednesday" report was prepared and broadcast. ....

Two days ago, CBS News and CBS announced the commissioning of an independent review to help determine what errors occurred in the preparation of the report and what actions need to be taken. [emphasis added]

As I've said time and again, some of the most shameful violations of journalistic ethics by CBS News took place after the broadcast, when CBS began receiving many credible and legitimate criticisms. If this panel is not going to look into the terrible errors that took place after the broadcast, it is clear that CBS News is not truly interested in resolving this matter and holding itself to the highest standards of journalism.

See my timeline and analysis of CBS News' response to criticism of the Killian memo forgeries:
Part I: September 8-13
Part II: September 14-21

UPDATE 1300 PT

See also, Jeff Jarvis Two Little.

UPDATE 23 Sep 2004

The stonewalling will be looked into: CBS Investigation Will Look Into Stonewalling.

Comments (12) + TrackBacks (0) | Category: Blogging and Journalism

Incompetent AND Unethical: The Story of CBS News' Response to Criticism of the Killian Memo Forgeries - Part Two

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Posted by Ernest Miller

This is part two of my timeline and analysis of CBS News' response to criticism of the Killian memo forgeries. Read part one here: Incompetent AND Unethical: The Story of CBS News' Response to Criticism of the Killian Memo Forgeries - Part One.

Read on...

...continue reading.

Comments (13) + TrackBacks (0) | Category: Blogging and Journalism

Incompetent AND Unethical: The Story of CBS News' Response to Criticism of the Killian Memo Forgeries - Part One

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Posted by Ernest Miller

This is a full and comprehensive update to my original post providing a timeline and analysis of CBS News' response to criticism of the Killian memo forgeries (Incompetent or Unethical? The Story of CBS News' Response to Criticism Over the Killian Memos). Unfortunately, due to its length, this update has to be broken into two parts. This is part one and covers September 8-13. Part two, which covers Sept 14-21, is here: Incompetent AND Unethical: The Story of CBS News' Response to Criticism of the Killian Memo Forgeries - Part Two.

First, another note about why I'm writing this series of posts on the CBS memos scandal.

I didn't jump into the "memogate" fray immediately. My first post on this story came Monday evening after CBS News defended the authenticity of the memos with two "experts," one of whom clearly had no idea what he was talking about and another whose credentials were weak at best. See my first post here: CBS Memo Defense: Richard Katz Is Wrong About Ones and Els.

I never thought there would be any significant discussion of the story after the first weekend. Watching the story develop during the first couple of days, I fully expected that CBS News would do the rational and ethical thing and declare that they were going to investigate themselves and the memos in order to clear up credible questions about the authenticity of the documents. I believed that CBS News would engage in a transparent process to prove their credibility, such as releasing the "first-generation" copies they claimed to have as well as the names of the experts who had authenticated the documents prior to broadcast.

Of course, some of the conservative "wingnuts" wouldn't have been satisfied by such a course of action (and leftist "moonbats" would see it as caving into conservative pressure), but reasonable people would have accepted that CBS News might have made an error yet was working diligently to correct it. Had this happened, while there might still have been plenty of discussion of the issue among conservative circles, most everybody else would have gone into waiting mode, giving CBS News a reasonable amount of time to conduct the investigation and report on itself.

Instead, CBS News entered standard political/corporate damage control mode and began to stonewall.

It wasn't that CBS News may have erred that is important. Mistakes happen. You correct them, figure out why they happened, and try not to repeat them, knowing that you'll make another mistake down the road. This is not news, and while it would have gotten a little bit of play, especially on the right, it wouldn't have been that big a deal. Of course, as we are now learning, the mistakes may have gone beyond errors in "news judgement" and into the realm of misdeeds.

Nevertheless (and perhaps because of possible misdeeds), CBS News refused to acknowledge even the possibility of error.

Making mistakes is one thing. Absurdly defending those mistakes, stonewalling and casting aspersions on those who make credible and legitimate criticism is another. When a major news organization engages in flagrant violations of basic journalistic ethics with regard to a claim that might have significant impact on a presidential election, that is an important story.

It would be absurd to expect or demand aggressive investigative reporters to always get it right the first time. Yes, we should demand high standards, but perfection is not achievable. However, we should demand vigorous correction policies. Imagine if the documents had been better forgeries. What would it have taken to get CBS News to admit error? In this case, the cover up really is much worse than the crime.

Many claim that there are other important institutional media questions, such as potential bias, news judgement and emphasis: more coverage should be devoted to other issues, news organizations need to dig deeper into these stories, be more aggressive in investigating and uncovering government untruths, and etc. Absolutely. These are important questions and they need to be addressed, but the answers aren't simple or even readily apparent in many cases. However, if you don't take clear violations of the fundamentals seriously, you'll never get satisfactory answers to any of the more difficult questions.

Second, I'll reiterate my stand that this isn't about Dan Rather, but about CBS News. Dan Rather is important, it is clear, but he is only one link in the web of responsibility with regard to CBS News' response to valid criticism.

Third, my basic conclusion is that the upper management of CBS News has deliberately acted unethically in responding to legitimate criticism. If the management of CBS News was not deliberately unethical, their sheer incompetence rises to the level of culpability. This is not to say that the rank and file of CBS News are implicated in the guilt of the CBS News executives, just as the rank and file of Enron are only guilty of having the poor luck in inadvertantly choosing to work for a group of crooks.

For some ideas on what will or should happen next, see Press Think (Did the President of CBS News Have Anyone in Charge of Reading the Internet and Sending Alerts?) and Buzzmachine (A Charge to the CBS Comission).

That said, please consider the evidence. If there are any errors or omissions, please let me know.

...continue reading.

Comments (15) + TrackBacks (0) | Category: Blogging and Journalism

September 21, 2004

CBS News Producer Contacted Kerry Aide Lockhart Before Show Aired

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Posted by Ernest Miller

I've already noted that CBS News seems poised to throw producer Mary Mapes to the wolves (The Fingerpointing Has Begun at CBS). Well, it would seem the Kerry Campaign is giving her a helpful push too, in order to distance themselves from the ongoing scandal, according to an AP report (Kerry Aide Talked to Retired Guard Officer:

Lockhart said Mapes asked him the weekend before the story broke to call Burkett. "She basically said there's a guy who is being helpful on the story who wants to talk to you," Lockhart said, adding that it was common knowledge that CBS was working on a story raising questions about Bush's Guard service. Mapes told him there were some records "that might move the story forward. She didn't tell me what they said."
All too often I think the charges of media bias are overblown or don't take into account various institutional issues, etc., etc. Sometimes, however, the media just hands their critics something to tear at.

Non-registration link for story (Kerry Adviser Talked to Burkett).

UPDATE 1855 PT

USA Today has much more (and don't they have their own tale to tell?) (CBS arranged for meeting with Lockhart):

Burkett told USA TODAY that he had agreed to turn over the documents to CBS if the network would help arrange a conversation with the Kerry campaign.
Read the whole thing.

UPDATE 2345 PT

USA Today does indeed have a story to tell, an extraordinarily bizarre one (CBS backs off Guard story):

After he received the documents in Houston, Burkett said, he drove home, stopping on the way at a Kinko's shop in Waco to copy the six memos. In the parking lot outside, he said, he burned the ones he had been given and the envelope they were in. Ramirez was worried about leaving forensic evidence on them that might lead back to her, Burkett said, acknowledging that the story sounded fantastic. "This is going to sound like some damn sci-fi movie," he said.

After keeping the copies for a couple of days, he said he drove to a location he would not specify, about 100 miles from his ranch, to put them "in cold storage." Burkett said he took the action because he believed the papers were politically explosive and made him nervous. "I treated them like absolute TNT," he said. "They looked to me like they were devastating."

Burkett was the source of the memos for USA Today, but his story certainly raises many more questions. For example, there is the possibility that CBS News producer Mapes had two of the documents weeks before getting copies of all six:
Ultimately, Burkett decided to turn over the documents to one of the most persistent journalists, CBS producer Mary Mapes, sometime in August. He and his wife met Mapes and CBS reporter Mike Smith at a pizza restaurant a few miles from their ranch. At first he gave them only two of the six documents, which Mapes said she planned to have analyzed for authenticity, according to Burkett.

Burkett said he passed the rest of the documents to Smith around Sept. 5, at a drive-in restaurant near Baird.

Read the whole, sorry thing.

Comments (14) + TrackBacks (0) | Category: Blogging and Journalism

September 20, 2004

Rather's Statement

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Posted by Ernest Miller

The Drudge Report is publishing what is claimed to be Dan Rather's statement acknowledging that there is not enough proof that the CBS memos are authentic:

Last week, amid increasing questions about the authenticity of documents used in support of a 60 MINUTES WEDNESDAY story about President Bush's time in the Texas Air National Guard, CBS News vowed to re-examine the documents in question—and their source—vigorously. And we promised that we would let the American public know what this examination turned up, whatever the outcome.

Now, after extensive additional interviews, I no longer have the confidence in these documents that would allow us to continue vouching for them journalistically. I find we have been misled on the key question of how our source for the documents came into possession of these papers. That, combined with some of the questions that have been raised in public and in the press, leads me to a point where—if I knew then what I know now—I would not have gone ahead with the story as it was aired, and I certainly would not have used the documents in question.

But we did use the documents. We made a mistake in judgment, and for that I am sorry. It was an error that was made, however, in good faith and in the spirit of trying to carry on a CBS News tradition of investigative reporting without fear or favoritism.

Please know that nothing is more important to us than people's trust in our ability and our commitment to report fairly and truthfully.

I'm going to say it again. Investigating the documents and their source is not good enough. If we are to trust CBS News, we have to know that they will vigorously pursue legitimate and credible questions about their reporting. The response of CBS News to criticism has hardly been consistent with "investigative reporting without fear or favoritism." The fear was palpable. I would suggest that there are some things that are more important to CBS News' commitment to report fairly and truthfully: Covering Their Ass.

How long will it be before CBS News acknowledges that its response to criticism was seriously flawed and deserving of investigation?

Comments (1) + TrackBacks (0) | Category: Blogging and Journalism

This Isn't About Dan Rather, It Is About CBS News

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Posted by Ernest Miller

There is a rumor that a former colleague of Dan Rather at CBS Evening News has said, after speaking with executives at CBS News, "the consensus is that Dan Rather may be forced to fall on his sword." See, Mickey Kaus Degradation Spreads!; Colby and Beyond! Rather's colleagues: Rather "to fall on his sword"; Mayflower Hill Blog ***CBS EXCLUSIVE***.

I have no idea whether this rumor is true or not, but eventually the question of Dan Rather falling on his sword will be raised.

Two points.

First, if Dan Rather has to fall on his sword it won't be because he erred in the original report, unless the problems with his involvement in vetting the story are overwhelmingly clear. If he has to fall on his sword it will be because of the stonewalling after the fact. Rather's vigorous denials that the criticisms were valid, the stories' critics partisan, after-the-fact expert shopping to support a crumbling story, and insistance that the story was true, though the documents might be forgeries will be what has done him in. In Greek tragedies, they called it "hubris."

Second, my personal view is that this isn't about Dan Rather so much as it is about CBS News as an organization. Dan Rather clearly plays an important role as the narrator and overly-aggressive defender of the report, but CBS News is too large an organization for even a single prominent individual, like Rather, to be entirely responsible. The producer of the piece, Mapes, will certainly be scapegoated, but all of CBS News is implicated in the stonewalling. Are there no editors at CBS Evening News? Who vetted and interviewed the second string experts Glennon and Katz? Dan Rather was not the anchor on the CBS Evening News on Saturday the 11th, when the show misleadingly seem to claim that a respected document examiner, Philip Bouffard, had changed his mind about the authenticity of the documents. Who was in charge of that report?

There are many other questions about CBS News' response to be answered in the coming days and weeks.

UPDATE 2220 PT

The NY Times reports that CBS News is ready to acknowledge that the documents are forgeries (CBS News Concludes It Was Misled on National Guard Memos, Network Officials Say):

Those officials, who asked not to be identified, said CBS News would most likely make an announcement as early as today that it had been deceived about the documents' origins, and that it was mounting an intensive news investigation of where they came from....

People at the network said it was now possible that officials would open a formal internal inquiry into how it moved forward with the report, which officials now say they are beginning to believe was too flawed to have gone on the air.

An investigation into where the documents came from and how they got on the air is only part of the solution. An investigation into how and why CBS News lowered its standards in order to steadfastly defend the documents after valid and credible criticism had been raised must also be part of the investigation if CBS News is to regain its credibility.

Comments (5) + TrackBacks (0) | Category: Blogging and Journalism

September 19, 2004

The Fingerpointing Has Begun at CBS

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Posted by Ernest Miller

CBS staff members are now leaking like crazy to the big media press covering Rathergate in order to get their version of the story out. I'll have an update about CBS News' response in a much more indepth post, but I think it important to note that the fingerpointing has begun (always a bad sign).

The Washington Post (annoying reg. req.) (In Rush to Air, CBS Quashed Memo Worries)

None of the analysts, including the fourth, James J. Pierce of California, provided the network with a written report before the broadcast. Howard [a 60 Minutes executive] said Mapes told him the analysts' concerns had been addressed. [emphasis added]
Guess Mapes is going to be taking the fall.
On Tuesday, Sept. 7, as Rather sat down in a CBS studio with former Texas lieutenant governor Barnes, the top brass was turning its attention to the explosive story. Heyward, the news division chief, met with Senior Vice President Betsy West; executive producer Howard, who had taken over in June after shifting from the program's Sunday edition; Mapes; senior broadcast producer Mary Murphy; and Esther Kartiganer, whose job is to ensure that interviews are not edited in a misleading way.

"All of us asked questions," Heyward said.

"We asked core questions -- about reliability, authenticity, motivation, could the source have had access to the documents," West said. The executives were satisfied by Mapes's answers, and she began writing the script. [emphasis added]

Yep. Mapes is going down.

Of course, nothing yet answers the questions I've raised about CBS News response to the scandal. Was Mapes in charge of CBS News spokespeople? Was Mapes in charge of hiring Glennon and Katz as "experts" for last Monday's CBS Evening News broadcast? Did Mapes write the CBS Evening News stories defending the broadcast with advocacy instead of reporting?


See also, the LA Times (annoying reg. req.) (In the Rush for a Scoop, CBS Found Trouble Fast).

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism

September 18, 2004

Real Time Fact Checking

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Posted by Ernest Miller

On Thursday, the Washington Post (annoying reg. req.) had a live online chat with washingtonpost.com Chief Political Correspondent Terry Neal (Talking Points Live: Terry Neal). Responding to a question regarding Rathergate, Neal said:

The bottom line is, for however badly CBS and Dan Rather seem to have screwed up, it was the aggressive reporting of the media--and especially the Washington Post (Michael Dobbs, Howie Kurtz, et al)--that revealed the problems with the memos in the first place.
As anyone who reads this blog knows, indeed anyone following the story at virtually any level whatsoever, it was blogs that broke the story.

I don't want to give Neal a hard time, but he's the political correspondent for the washingtonpost.com. Perhaps he should be paying a little more attention to the blogosphere.

In any case, by the end of the 1-hour chat, Neal had been corrected:

New York, N.Y.: I agree with your point about not blaming the entire media for CBS's bad judgement, but in terms of digging into the story of whether they were fakes -- didn't that start in the blogs?

Terry Neal: You know raise a good question. And to be honest, I'm not sure of the answer. I don't know who the first person or people were to raise the issue. Either way, it can't be denied that the mainstream media has been aggressive in its reporting of the memo mess, whether it was broken there or in the blogs first.

_______________________

Washington, D.C. : The aggressive reporting of Howard Kurtz and Michael Dobbs only came after the work of bloggers who uncovered the whole mess.

Terry Neal: I'm getting a lot of notes like this...See my previous answer. And allow me, as a mainstream media guy, to give credit were credit is due. Kudos to the bloggers!

Comments (19) + TrackBacks (0) | Category: Blogging and Journalism

September 17, 2004

Incompetent or Unethical? The Story of CBS News' Response to Criticism Over the Killian Memos

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Posted by Ernest Miller

UPDATE September 22, 2004

A complete update of this posting can be found here: Incompetent AND Unethical: The Story of CBS News' Response to Criticism of the Killian Memo Forgeries - Part One.

When the Rathergate story broke, I studied it with interest and amusement. I did not post anything on this blog about it, because I generally stay "on-topic," which means that I focus on technology law and policy. However, I am also very concerned about freedom of experession issues and the development of blogging as a new media form. I initiated the first, as far as I am aware, blog conference at an academic institution: Revenge of the Blog at Yale Law School.

By this past Monday evening, however, the story had clearly become one involving serious questions about the future of news reporting and I decided to join the conversation on this blog. This story is important because the blatant flouting of basic and fundamental journalistic practices by one of the largest and prominent news organizations in the country is undermining the credibility of journalism as a whole. Jay Rosen has asked how the press can "win" during this election season (Campaign Puzzler: How the Press Comes Out with a Win). Well, I think that right now, the press is falling farther and farther behind in points. If major news organizations think that their credibility is not tarnished by a rogue CBS, they are sadly mistaken.

It is disappointing to me that the major media has been mostly silent in their condemnation of CBS's response to this scandal. Even granting, against reason, that there remains a serious debate about the authenticity of the documents, and that CBS's "checks and balances" for vetting this story were sufficient, the response of CBS to its critics has been outrageous. Where are the outraged calls for more transparency on the part of CBS News from the editorial boards of the New York Times, Washington Post, Chicago Tribune or Wall Street Journal? Why haven't anchors of the other networks called for CBS to establish an internal, or better yet, an external investigation into the issue? Any profession that won't police its own when members egregiously violate the fundamental tenets of that profession will very quickly lose all credibility.

More importantly, the press plays a vital and critical role in forcing transparency on government. How effectively will the press be able to play that role if it adopts the stonewalling tactics of the government when it is subject to criticism? If our watchdogs cannot even watch themselves, the Fourth Estate will become ever more ineffective.

Many of my most important criticisms aren't about content, but about process. Many stories will lead to valid disagreements over nuance, omissions, and etc. However, there are fundamental aspects of process that virtually all can agree upon. CBS News has violated many of these. And, even where I criticize CBS News content, it is generally with the belief that a news organizations should be especially fair and even-handed in responding to criticism.

I should also note that this isn't about Dan Rather. I couldn't care less about Dan Rather. This is about CBS News as an organization. Although Dan Rather has been the focus for attention for many, the majority of my criticisms are directed at CBS News as a whole.

Whether you agree that the documents are forged, clearly credible and legitimate questions about their authenticity have been raised. CBS News has not responded to criticisms with transparency and responsibility we should expect from any news organization, let alone such a large and important one.

The following is an analysis and timeline of CBS's response to their critics. It is abundantly clear that CBS's actions when questioned about the validity of their reporting are a breach of what should be fundamental journalistic practice. Either that, or CBS News is hopelessly incompetent.

If I've missed something or erred, please let me know.

Read on...

...continue reading.

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Broad Coalition of Organizations Calls for More INDUCE Act (IICA) Hearings

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Posted by Ernest Miller

A broad collection of technology companies, civil liberties groups and other organizations have just released a letter calling for further hearings on the Inducing Infringement of Copyrights Act of 2004 before the bill enters markup. The letter is a response to the new version of the INDUCE Act (IICA) proposed by the Copyright Office (which I haven't yet written about, but is most definitely on my "to do" list). Clearly, Congress should take this letter's advice.

Read the two page letter: Letter to Senators Hatch and Leahy, Re: S. 2560, Inducing Infringement of Copyrights Act of 2004, Sep. 17, 2004 [PDF].

Text of the letter below:

Dear Senators Hatch and Leahy:

The undersigned entities are writing to express their concerns with the Copyright Office's September 9, 2004 recommended statutory language for a new form of secondary liability for copyright infringement. We commend the Copyright Office for its efforts to meet with the many different stakeholders and to fashion a recommendation that attempts to address the competing interests. Notwithstanding the Copyright Office's hard work and creativity, the September 9 draft is not ready for mark-up by the Senate Judiciary Committee. The draft raises a host of new issues and would create an unprecedented new form of liability of uncertain, but potentially unlimited, reach.

The Copyright Office's most recent approach would create a new form of strict copyright liability for a large class of providers of hardware, software and services used in conjunction with the electronic or physical dissemination of goods, services, and information. These companies and institutions could be found liable without regard to their knowledge, intent, or relationship to the infringer, simply for providing a product, service, facility or financing. All it takes to be found liable is to meet one of the three vague criteria proposed by the Copyright Office, which are to be applied to some undefined subset of a defendant's products or services. As a result, anyone involved in the development or operation of electronic, or even physical, communication, distribution, or dissemination technologies could be strictly liable when it unknowingly derives revenue that may be small in relation to its own provision of goods and services. Perhaps most troubling, entities that participate in the Internet and other electronic space would have no way of structuring their activities to anticipate and avoid -- or even minimize -- these risks.

The Copyright Office's new draft fails to codify the Supreme Court's Betamax decision, which, despite having fostered twenty years of explosive growth in technology, is now under unrelenting attack. Moreover, the Betamax doctrine will provide no defense against the Copyright Office's proposed new form of liability. Nor would it be availing to present any defense based on lack of knowledge, intent, or affiliation with any infringer. Thus, legitimate enterprises may have no effective means of preventing the substantial litigation cost of virtually every infringement case going to trial. The September 9 draft also explicitly opens the door to secondary liability -- posing yet another challenge and obstacle -- to those who finance new ventures or "incubate" new technologies. Thus, it may sweep up far more than bad actors who build business models based in infringement.

While the decision to embark on a new approach shows that the Copyright Office has been willing to listen to criticism of previous approaches and to explore new directions, the very novelty of this approach suggests that further analysis and review are in order. Indeed, each major alternative that has been presented to your staff (including those emanating from the private sector) has revealed an attempt to avoid the pitfalls of S. 2560 as introduced, yet has differed dramatically from other serious proposals. No private or public sector consensus has yet formed as to theoretical framework and practical impact.

In the first hearing on S.2560, the Committee called on interested parties to propose legislative alternatives. The resulting process has led to a number of significant alternatives, which differ greatly from the original and from each other. However, each would work a fundamental change in copyright law, with potentially enormous impact on the competitiveness and economic growth of this nation. Before any approach becomes law, it should, at minimum, be subjected to careful scrutiny in a public hearing at which novel elements in these approaches can be compared, and discussed as to their full implications. The process thus far has been constructive, but has not resulted in either the consensus or the confidence in a legislative framework that ought to underlie a major and consequential revision to the Copyright Act.

We continue to appreciate the seriousness and cordiality with which your staffs have approached this issue, and look forward to continuing to work with you and with them.

Sincerely,

[Numerous technology companies, civil liberties groups and other organizations]


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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September 16, 2004

A Preponderance of Misdirection and Lack of Transparency

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Posted by Ernest Miller

A brief fisking of CBS's statement today.

'A Preponderance of Evidence' Wed Sep 15 2004 19:39:35 ET

The CBS News report was based on a preponderance of evidence: many interviews, both on- and off-camera, with individuals with direct and indirect knowledge of the situation, atmosphere and events of the period in question, as well as the procedures, character and thinking of Lt. Col. Killian, Lt. Bush's squadron commander in the Guard, at the time.

The report also included the first television interview with Ben Barnes, a Democrat and current fundraiser for John Kerry, who said he helped get Mr. Bush into the Texas Air National Guard at the request of a Bush family friend.

Numerous questions have been raised about the authenticity of the documents. CBS News believes it is important for the news media to be accountable and address legitimate questions.

However, CBS News also apparently believes that is appropriate to stonewall for nearly an entire week before addressing those questions. Furthermore, CBS believes that the first response should be to cast aspersions on the motivations of those questioning the report. Its not the mistake, it is the coverup afterwards.
Procurement of The Documents

The 60 MINUTES Wednesday broadcast reported that it obtained six documents from the personal files of Lt. Col. Killian, four of which were used in the broadcast. In accordance with longstanding journalistic ethics, CBS News is not prepared to reveal its confidential sources or the method by which 60 MINUTES Wednesday received the documents. CBS News' reporting determined that the source of the memos had access to the documents he provided and an opportunity to obtain copies of them. Our sources included individuals who had first-hand knowledge of the events in question.

Additionally, Mary Mapes, the producer of the report and a well-respected, veteran journalist whose credibility has never been questioned, has been following this story for more than five years. She has a vast and detailed knowledge of the issues surrounding President Bush's service in the Guard and of the individuals involved in the story. Before the report was broadcast, it was vetted and screened in accordance with CBS News standards by several veteran 60 MINUTES Wednesday senior producers and CBS News executives.

Hmmm, you would have thought Mapes might have noticed that no other documents in the Bush National Guard files resembles these documents. Now for the meat of the statement.
Authentication of the Documents

Four independent individuals with expertise in the authentication of documents were consulted prior to the broadcast of the story regarding the documents 60 MINUTES Wednesday obtained: document examiners Marcel B. Matley, James J. Pierce, Emily Will and Linda James.

Why was CBS so reticent to provide the names of these individuals? Inquiring minds want to know.
As CBS News has publicly stated, the documents used in the report were photocopies of originals.
So, when is CBS going to release high quality scans of the documents, the same quality as were provided to these experts? After all, in the initial response to critics, CBS complained that those who questioned CBS did not have access to high quality originals. A complaint CBS reiterates below.
Two of the examiners, Mssrs. Matley and Pierce, attested and continue to attest to their belief in the documents' authenticity. (see attachments 1 and 2) Two others, Ms. Will and Ms. James, appeared on a competing network yesterday, where they misrepresented their conversations and communication with CBS News. In fact, they assessed only one of the four documents used in the report, and while one of them raised a question about one aspect of that one document, they did not raise substantial objections or render definitive judgment on the document. Ultimately, they played a peripheral role in the authentication process and deferred to Mr. Matley, who examined all four of the documents used.
And we should believe CBS, why? Perhaps they could provide the world with some of the emails or other correspondence with Ms. Will and Ms. James. Perhaps they might also explain the inconsistency of this statement with what Mr. Matley has said since. I'm sure we will soon hear more from Mr. Pierce. Finally, why did CBS request that Mr. Matley not talk with the press?
Additionally, two more individuals with specific expertise relative to the documents - Bill Glennon, a technology consultant and long-time IBM typewriter service technician, and Richard Katz, a computer software expert - were asked to examine the documents after the broadcast for a report in the Sept. 13 CBS EVENING NEWS. They, too, found nothing to lead them to believe that the documents did not date back to the early 1970s. They strongly refuted the claim made by some critics that there were no typewriters in existence in the early 1970s that could have produced such documents. (see attachments 3 and 4)
Har - dee - Har Har. Please. Several other recognized and certified document experts, as well as those with vast experience in fontography and access to actual machines upon which to perform experiments (such as at Adobe) have completely and utterly discredited Mr. Glennon's recollections as an IBM Typewriter repairman. See, Joseph Newcomer, The Bush "Guard memos" are forgeries!). Why did CBS choose to believe an "expert" with so little experience compared to the experts who other news organizations relied on?

As for Mr. Katz. I wrote a pretty darn good debunking in just a few hours (took time to make the images) of his conclusions. See, CBS Memo Defense: Richard Katz Is Wrong About Ones and Els and Little Green Footballs, Typewriter Repairman Promoted. Seriously, are we to believe these were the best "experts" CBS can find?

Oh, and by the way, how did CBS find these "experts"? Did CBS go to the society for document examiners or whatever it is called? Or did they just find people via the internet or other publications who already supported CBS's position? Is that how you should find experts as a reporter? Conclusion first, choose expert second?

CBS News Experts' Conclusions About the Documents

- Katz believes the documents were written on a typewriter and not a computer. (attachment 3)

- Glennon confirms that the superscript "th" and proportional spacing of the typeface of the four documents were definitely available on typewriters as early as the late 1960s. (attachment 4)

- Pierce believes that the documents in question are authentic as best as he can determine, given that they are copies and not originals. (attachment 2)

- Matley says the signatures are, indeed, Killian's. (attachment 1)

Um, okay, yeah.
Again, the documents used for the 60 MINUTES Wednesday report were copies, and most of the analysis fueling the current controversy is based on scanned, downloaded, faxed or re-copied copies. For now, the disagreements among "dueling experts" have not been resolved.
Uh, yeah. This is called being oblivious. Where are the better copies? The ones your experts used. Oh, right, Glennon never actually saw those original copies and neither did Katz, to my knowledge. How about a blue-ribbon panel of experts then? No. Gosh, didn't think so.
Other Issues

Maj. Gen. Bobby Hodges, who was group commander of Lt. Bush's squadron, has stated to The New York Times and Los Angeles Times, among others, that he believes the documents are not real, but also told The New York Times, in an article that appeared on Sept. 12, that the information in the CBS News report "...reflected issues he and Col. Killian had discussed-namely Mr. Bush's failure to appear for a physical, which military records released previously by the White House show, led to a suspension from flying." That is consistent with what he told CBS News off-camera as part of the research for this report.

And that supports the authenticity of the documents, how? I have lots of conversations with people. Most of them are not written down. Undoubtedly, Hodges discussed Bush's performance with Killian. That is how the military system works.
A reference in one memo to Gen. Buck Staudt applying pressure on behalf of Lt. Bush raised questions because Staudt had left his job 18 months before the memo was written. But CBS News' background reporting determined that Staudt remained a powerful figure in the Guard for years after his retirement, a fact that is confirmed by Ms. Knox in a newspaper interview. More importantly, the same memo referred to unhappiness in Austin, an obvious reference to Staudt's successor at the Austin, Texas, headquarters of the Texas Air National Guard.
Ok, let's see that background reporting, as it has been directly attacked by other members of the TexANG.
Conclusions

The editorial content of the report was not based solely on the physical documents, but also on numerous credible sources who supported what the documents said.

Misdirection. The argument is with the authenticity of the documents.
Through all of the frenzied debate of the past week, the basic content of the 60 MINUTES Wednesday report - that President Bush received preferential treatment to gain entrance to the Texas Air National Guard and that he may not have fulfilled all of the requirements -- has not been substantially challenged.
Off topic once again. "Please, please look over here, never mind that man behind the curtain."
CBS News will make every effort to resolve the contradictions and answer the unanswered questions about the documents and will continue to report on all aspects of the story.
I'm not holding my breath, considering the dissembling, stonewalling, hunkered down effort CBS has taken so far. An aggressive investigation might salvage some reputations at CBS, but CBS has demonstrated nothing like that so far.

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September 15, 2004

Where is the Transparency? - Crisis of Integrity Continues at CBS

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Posted by Ernest Miller

According to the Drudge Report, the following is a statement by the President of CBS News, Andrew Heyward:

We established to our satisfaction that the memos were accurate [not "authentic"] or we would not have put them on television. There was a great deal of coroborating [sic] evidence from people in a position to know. Having said that, given all the questions about them, we believe we should redouble our efforts to answer those questions, so that's what we are doing. [emphasis added]
Redouble what efforts? I thought CBS was standing by their story? Is CBS News launching an internal investigation? CBS has not identified what, exactly, they are looking into. Are they looking into the typographical questions? Are they reconfirming with those people who vouched for the documents? What are they doing? Most importantly, where is the transparency?

There is still no word on who the "expert" document examiners were who authenticated the documents. Guess we'll just have to take CBS's word that they exist.

There has still been no release of high quality copies of the documents, though CBS claims to have them. And what the heck did they send to their "experts"?

Dan Rather has apparently (according to a report by Howard Kurtz) interviewed Killian's secretary who claims the documents are fakes but represent the gist of contemporaneous conversations. See the Dallas Morning News (reg. req.), which engaged in actual journalism (Ex-aide disavows Bush Guard memos).

This would be the same secretary whose interview CBS has already responded to, according to the Seattle Times (Ex-Guard typist recalls memos on Bush):

CBS officials appeared jubilant over Knox's revelations. "While we do not believe that she is a documents expert," CBS spokeswoman Sandy Genelius said, "it is exceptionally noteworthy that she supports the content of our story." [emphasis added]
One might wonder why CBS is going to ask someone they "do not believe ... is a documents expert" about the authenticity of the documents, especially when they have ignored responding to or talking with other experts who have raised legitimate concerns about the memos.

In any case, if she basically reiterates what she has told numerous other news organizations, CBS will do what, exactly? Continue to stonewall? You might also wonder why CBS doesn't believe the reporting of other news organizations about what the former secretary said. Are they not as trustworthy as Dan Rather?

As long as this fig leaf of "responsible journalism" is allowed to stand, this remains a Crisis in Journalism. Correction: CBS's response is an embarrasment to fig leaves.

For a humorous note, see the top ten statements CBS was considering: Top Ten CBS Statements Planned for Today.

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Rather Shows He is Unfit for Journalism

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Posted by Ernest Miller

We don't really know yet if a denouement to the CBS memo crisis is nigh or whether it will come at all. What we do know is that CBS News anchor Dan Rather is acting with an arrogance that is unbecoming journalism. I hope if there is ever an investigation, Rather's responses to those who question his reporting is dealt with indepth.

Although Rather cannot be bothered to name the "experts" who "authenticated" the documents, or provide good quality copies to outside experts, he has plenty of time for an interview with the NY Observer regarding the ongoing scandal. Read and be amazed at conceit (Dan Rather To Bush: ‘Answer The Questions’). Indeed, if there will be a denouement, it may this interview that is responsible for it.

"With respect: answer the questions," said Dan Rather, the CBS News anchor. He was asking a direct question to President George W. Bush, his re-election campaign and his political allies in the press and on the Web. "We’ve heard what you have to say about the documents and what you’ve said and what your surrogates have said, but for the moment, answer the questions.

"I say that with respect," he added. "They’d be a lot stronger in their campaign if they did do that."

And why won't you answer many of the key questions from your critics, Rather? Your responses have been pathetic at best. I once asked with respect. Now I ask with contempt. I expect the answer is arrogance. What other reason could there be for not naming the experts consulted, or providing high quality copies of the documents, such as the copies sent to the "experts."
....Mr. Rather asserted that the lack of denial was itself evidence of the essential truth of his findings. The questions raised by his reporting, he said, have remained unanswered by the Bush administration: Did Mr. Bush get preferential treatment for the Texas Air National Guard? Was then-Lieutenant Bush suspended for failing to perform up to Texas and Air Guard standards? Did then-Lieutenant Bush refuse a direct order from his military superior to take a required examination?
Here is another question: how have you verified that the documents are authentic, in detail?

Whether or not a major news organization offered forged documents as a central element of their confirmation of allegations against the president is a legitimate and important question. Surely, any true journalist can see that. However, Rather essentially ignores these concerns.

Furthermore, the White House's silence on the documents may be some evidence of the underlying truth of the contents of the memos, but it is no proof at all that the documents are authentic, which is the point at issue. Of course, if you follow Rather's logic, then CBS's weak defense of the document's authenticity is evidence that they are not.

"It’s never been fully, completely denied by the Bush-Cheney campaign or even the White House that he was suspended for meeting the standards of the Air Force or that he didn’t show up for a physical," he said. "The longer we go without a denial of such things—this story is true."
Hmmm...the longer we go without knowing the names of CBS's experts then we can assume they don't exist?
On Friday, Sept. 10, Mr. Rather said on the CBS Evening News that he believed that some of the criticism came from people who were "partisan political operatives," implying that right-wing elements have managed to turn the story into a referendum on the story itself—and thus on Mr. Rather, a longtime target of conservative critics.

Mr. Rather said that the focus on questions over the veracity of the memos was a smoke screen perpetrated by right-wing allies of the Bush administration.

"I think the public, even decent people who may be well-disposed toward President Bush, understand that powerful and extremely well-financed forces are concentrating on questions about the documents because they can’t deny the fundamental truth of the story," he said. "If you can’t deny the information, then attack and seek to destroy the credibility of the messenger, the bearer of the information. And in this case, it’s change the subject from the truth of the information to the truth of the documents.

"This is your basic fogging machine, which is set up to cloud the issue, to obscure the truth," he said.

This is really the key element of the interview with regard to Rather's unsuitability to remain a journalist for a major news organization. Not only does he ignore valid and credible concerns that undermine his "reporting," he attacks his critics as partisan dupes. This is clear evidence that Rather is no longer able to weigh evidence objectively.

Strangely, Rather is accusing those who have concerns about his story of attacking the messenger. Yet, here is Rather attacking the messenger. I'll leave the psychology here to experts.

Mr. Rather said that he and his longtime CBS producer, Mary Mapes, had investigated the story for nearly five years, finally convincing a source to give them the National Guard documents. He did not reveal the name of the source, but Mr. Rather said he was a man who had been reluctant to come forth with them because he’d been harassed by political operatives. "Whether one believes it or not, this person believed that he and his family had been harassed and even threatened," he said. "We were not able to confirm that, but his fear was that what had already been threats, intimidation, if he gave up the documents, could get worse—maybe a lot worse." [emphasis added]
Professional courtesy from one paranoid to another, I guess.
....The story has fallen into a wormhole of seemingly unanswerable questions: Could an IBM Composer, Selectra or Executive have created the superscripts and proportional spacing? Would the Texas Air National Guard have had such expensive models? Was Killian the type to … type?

The responses have mostly depended on who you asked, although a large number of analysts have cast serious doubt on the documents, with CBS’s experts being the conspicuous exceptions.

What experts? If they existed, wouldn't CBS have named them by now? (Seriously. I think there are more experts. Why CBS hasn't named them, I don't know. Maybe because everytime they become public, they recant.)
If Mr. Rather’s defense sounded like a shout of "vast right-wing conspiracy," in this election year it was no longer as crazy as it sounded—particularly during a week when the Republican National Committee had already beat him to the conspiracy-mongering. When the Democratic National Committee launched a TV ad called "Fortunate Son" on Tuesday, Sept. 14, using a clip of Mr. Rather’s 60 Minutes sit-down with the former Lieutenant Governor of Texas, Ben Barnes, a spokesman for the Republican National Committee released a statement saying that "the video the Democrats released today is as creative and accurate as the memos they gave CBS."
Beat him to the conspiracy mongering? Dan Rather began the conspiracy mongering last Friday, when his CBS Evening News report accused critics of the documents to be "partisan political operatives," something that the author of this article reported a few paragraphs above. Consistent much? And what the heck is particularly conspiratorial about a spokesman for the RNC attacking a DNC ad? Um, isn't that politics as usual?
...."There are people who believe that there are little green folks in the center of the earth," he said. "I don’t believe that. It’s possible, but I don’t believe it." [said Rather]
Um, no, it isn't possible.
Mr. Rather said that it would require an exceptional amount of knowledge to craft a forgery—and not just the typographical kind. "You’d have to have an in-depth knowledge of Air Force manuals from 1971," he said. "You’d have to have Bush’s service record, you’d have to have the Air Force regulations from 1971, you’d have to know nearly all of the people involved directly at that time, including the squadron commander, who was Bush’s immediate superior, and his attitude at the time—you’d have to know all those things and weave all those things in."
Well, a number of experts consulted by major media organizations that are reputable dispute that the memos are consistent in those things. In any case, it would be nice if the experts CBS consulted would debate these other experts. Oh, that's right, they don't exist.
Mr. Rather said he was well aware of reports in The New York Times and The Washington Post that had finely detailed examinations of inconsistencies in the memos. And he said he took those reports seriously and appreciated the "competitive response" of other news organizations. But despite a number of experts calling the memos forgeries, he said that "the truth of these documents lies in the signatures and in the content, not just the typeface and the font-style. Let me emphasize once again, these are not exact sciences. Not like DNA or fingerprints."
Um, Dan, you do realize that experts hired by these other organizations, as well as experts hired by your organization dispute the signatures. Moreover, because you don't actually have access to the originals, you do realize that you cannot conclusively authenticate the signatures, don't you, Dan? If not, incompetence would be another reason Rather should no longer be a journalist for a major media organization.
That was why, he said, half of the experts agreed and the other half didn’t. That supposed stalemate left nothing but the truth at the center of the documents.
Where are these experts that agree? That typewriter repair guy? The software consultant who doesn't know how to use Word?
"In terms of the experts, you’re going to find an equal number of experts on the authenticity arguments," he said. "I don’t think that’s going to resolve the argument. The core truth of the reporting, I think it’s already clear that it’s true. And I think as time goes along, it will become even more apparent."
Hello, Earth to Dan. Earth to Dan. Come in, please. The core truth that is becoming more apparent is that the documents are forgeries and CBS is covering up its errors. This is clearly an example of poor observational and judgement skills. Again, not something you want in a journalist for a major news organization.
What about the Washington Post story of Sept. 14? The story pointed to discrepancies in military language, between the way Killian usually signed his letters and his signature on the memos CBS put on the air. And what about Mr. Bush’s address on one memo, "5000 Longmont #8, Houston," where he apparently no longer lived in 1972?

"Both of the allegations are wrong," he said. "I feel confident in saying that."

But when asked to offer a specific rebuttal to the observation about the address, Mr. Rather didn’t have one, saying only: "It’s our position, and I believe we demonstrated it …. The address doesn’t match the Bush service time frame—that’s their basic allegation? We think that’s wrong. We took a look at this, and we just think they’re wrong about it."

Blind assertions. That's good journalism. Yep.
Mr. Rather brought up Mr. Hodges, the former National Guard major who CBS News relied on to verify the contents of Killian’s memo. Mr. Hodges, a Bush supporter, had since declared the documents forgeries. "He doesn’t think the documents are real," said Mr. Rather. "As far as I can tell, he didn’t deny that they sounded familiar to him. If he did, he didn’t confirm it to The New York Times."
So, the claim isn't that Hodges verified the documents, but that they sounded familiar. Okay. How different is that from, something along the lines of (not actual quote) "if he wrote it, then that is the way he must have felt." Perhaps Rather would discuss the point of not showing the memos to Hodges, or mentioning that some experts by CBS had concerns about their authenticity. Not to mention Hodges' claim that CBS said the memos were in Killian's own handwriting, which might prejudice a witness just a bit.
And what if it was discovered that the documents were indeed forged?

"If," said Mr. Rather, reiterating "if," "if at any time we’re able to come up with information that demonstrates that we’re wrong, we’ll report it. We won’t wait. But I don’t think it’s going to happen. The story is true."

If I had been holding my breathe, I would have been dead days ago.
Mr. Rather said that he and Ms. Mapes had heard about the National Guard memos as long ago as 1999.

"We eventually came in contact with somebody who said he knew about the documents, and it took a while to get in contact with the man who was supposed to have had the documents," he said. "It took a long time for us to create a reportorial relationship with him in which he trusted us, and at the same time we were checking him out to see if he was a trustworthy person."

While Mr. Rather and Ms. Mapes were able to glean the contents of the memos before they actually acquired them, and while they worked to convince the source to hand over the memos, he said they tried to verify the facts in them so they could be sure they were on the right trail.

"Within the last few months," he said, "we got a look at the documents, and we said we’d like to have a copy of the documents."

He said they met the source in a "remote location." "[The source] said they were copies of the documents, and he told us some of the history of where they came from and how they came to him," Mr. Rather said.

Shades of Woodward and Bernstein. How excited Rather must have been. Mysterious sources meeting in a remote location. The documents had to be authentic! And, what a great scene it would make in the movie.
Finally, after showing the reporting to CBS News president Andrew Hayward, senior vice president Betsy West and 60 Minutes Wednesday executive producer Josh Howard, Mr. Rather said he went to officials at the White House.
Ah, responsibility of the higher-ups. Though I doubt they will actually accept any.
"Look, we have accumulated a body of information based on some long reporting that lays out a different picture of then-Lieutenant Bush’s service," he said, "and we now have documents which to our own satisfaction we believe to be authentic, we believe to be true …. These are unpleasant truths. But they are truths. There was and is no joy in reporting them. But part of what reporters are supposed to do is ask questions, dig for facts and, when truths are found, share them with the public and, when called upon to do so, speak truth to power. This we did."
Hah, hah, hah. "Speak truth to power." Hah, hah. When will someone go to Rather and explain the "unpleasant truths" to him?
In the last week, a Newsweek report suggested that the CBS source was Bill Burkett, a former National Guard employee who, since the late 1990’s, has claimed to have overheard a conversation in which Mr. Bush’s records were to be "cleansed" and who also claimed to have seen the files in a trash can. It has been established that Ms. Mapes spoke with Mr. Burkett for the 60 Minutes story. Mr. Burkett, who lives in Abilene, Tex., has been called a "discredited source" by the Bush White House. Mr. Rather wouldn’t comment on Mr. Burkett as the source, but in an interview, Mr. Howard, the executive producer, seemed aware of Mr. Burkett’s reaction to the Newsweek allegations.

"I know that Burkett is talking about at least having his lawyer call and discuss this with them," he said.

Mr. Burkett could not be reached for comment.

How about that. His lawyer has been reached, however, and did not issue a denial. Guess that means it is true, right Dan?
...But inside the West 57th Street offices of CBS News, some staffers felt the organization had acted like a ponderous sloth batting away a swarm of flies. They think the network had already lost.

"I think it’s too late to make a difference," said one angry CBS News staffer. "These guys lost the debate last week by taking a beating for 48 hours on Web and cable before making feeble attempts to defend themselves." The 60 Minutes defense, said the staffer, "should have been on last week and should have been much better illustrated." [italics in original]

Yep.
Did Mr. Rather worry that the current scandal would tarnish his reputation, especially in the twilight of his career? Yes, said Mr. Rather, he did worry—but he also seemed to worry for his colleagues in the press.

"I certainly care about it," he said. "To me, even people who aren’t inclined for one reason or another to like me know I’m a lifetime reporter trying to be independent and to report without fear or favor, to be an honest broker of information. On the times when I’ve failed, either because I didn’t ask enough of the right questions, or didn’t ask the right questions, I, and almost every other journalist, have taken a fair enough criticism for, in many people’s judgments, not asking the right questions, or not asking the right questions strong enough, long enough in the time preceding the war. And I think some of that criticism is justified. I do not except myself in that criticism."

Mr. Rather said that he was sure that the credibility of CBS News would hold up after the memo scandal had passed.

"I think over the long haul, this will be consistent with our history and our traditions and reputation," he said. "We took heat during the McCarthy time, during Vietnam, during civil rights, during Watergate. We haven’t always been right, but our record is damn good."

Yes, what a wonderful legacy you are pissing away ... and I wouldn't be so sure about the credibility part.

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Crisis in Journalism

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Posted by Ernest Miller

As I noted yesterday (CBS Memo Defense: Richard Katz Is Wrong About Ones and Els), I've been closely following the ongoing controversy regarding the CBS memos. I think it is a very interesting and informative example of the development of new media. I also thought it fairly entertaining.

I no longer think it is entertaining.

ABC News has reported that CBS ignored the reservations and concerns of experts it hired to authenticate the challenged memos (Document Analysts: CBS News Ignored Concerns About Disputed Bush Military Records). One of the experts claims to have explicitly warned CBS not to use the documents and that they would be challenged. Another refused to authenticate. CBS never mentioned these reservations in their initial report or subsequently.

CBS continues to stand by the documents' authenticity, relying, among other things, on experts who have remained unnamed for 6 days.

This has entered the realm of absurdity, but I find it difficult to see the humor of the situation. It is comparable to the New York Times standing behind Jayson Blair or The New Republic standing behind Stephen Glass, long after their frauds had been exposed.

The credibility and integrity of anyone directly involved in this CBS story is lost, I believe. They have been complicit in the stonewall as well as tarring the integrity of those who pointed out discrepancies in their reporting. The "experts" they've put forth in their defense wouldn't pass muster at a high school newspaper.

Furthermore, the credibility and integrity of every other journalist at CBS News is in question.

At what point do the members of a news organization have an ethical duty or responsibility to speak out against their own organization? Shouldn't those who claim to be journalists and reporters hold themselves to a higher standard? Shouldn't they demand the same of the organization to which they belong? Reporters rely on ethical individuals in other institutions to blow the whistle when there are critical lapses in those organizations. Where are the journalistic whistleblowers at CBS? What CBS reporter has the courage to say that their organization is engaged in an ongoing violation of basic journalistic ethics? What are we to say about those reporters who simply do nothing?

Moreover, the entire journalistic profession is threatened by the actions of a rogue CBS. Many, such as ABC, the Washington Post and the Dallas Morning News, have done good work. Still, now that CBS continues to engage in ongoing violations of basic journalistic ethics, what will other major media organizations do? Their credibility is not entirely separate from CBS's.

I am serious when I say that this has become a crisis for journalism.

Mainstream media plays an important role in our society. It will and should continue to play an important role. I know we would all be poorer without major news organizations gathering and disseminating information.

The actions of CBS threaten more than CBS.

UPDATE 2120 PT

The Los Angeles Times (reg. req.) demonstrates that CBS News has every intention of continuing this journalistic charade. The article also demonstrates how sone news organizations are prepared to follow CBS's lead (Rather Rides Out Latest Partisan Storm)

CBS News' Dan Rather has famously tangled with Republicans since Richard Nixon was president. Now the anchor finds himself in the midst of another major partisan storm, accused of airing forged documents to support a report on President Bush's Texas Air National Guard service in the early 1970s.
This is quite insulting, actually. Apparently, I'm a partisan because I think it likely that the documents are forgeries. Gee, thanks LA Times. This might not be a credibility storm?

In any case, CBS News is prepared to go down with the credibility ship, dragging the rest of the media with it:

Rather said he has no intention of giving in to those pressures. "Say what you want to about me, I keep my word," Rather said. "No, I'm not going to reveal my source."

"I think we've gone out of our way to reveal more of the process than most journalists do," [CBS News President] Heyward said. "We're going to have to take the criticism."

In the end, both Rather and Heyward said, the issue may never be solved, with dueling rosters of document authenticators lining up in equal measure to proclaim them both real and fake.

"If you report this kind of story, you have to know everybody is not going to like you or how you did it," Rather said, adding "the documents may be a `he said, she said,' but the story will stand up."

UPDATE 2 2200 PT

Jay Rosen has an excellent piece about the role of the media in the election (Stark Message for the Legacy Media). Good stuff. Unfortunately, as I note in the comments, none of this will matter if CBS gets a pass from the MSM for its blatant lack of transparency and accountability. Most press releases demonstrate more integrity than CBS has so far. And, if press releases have as much integrity as CBS, who will be to blame if people come to prefer them?

By the way, snarky editorials are giving a "pass." From the LA Times (A Black Eye for CBS News):

Whatever the truth, CBS' real error was trying to prove a point that didn't really need to be proved.
WTF?

If the documents are forgeries and CBS had evidence that they disregarded and CBS subsequently stonewalled any investigation, casting aspersions on those who questioned the documents, that is not as bad as choosing to pursue a story aiming to prove certain allegations about Bush's service in the National Guard?

There truly is a crisis in journalism.

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September 14, 2004

SAVE BETAMAX

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Posted by Ernest Miller

Let Congress know today, with a phonecall, that you oppose the INDUCE Act.

SaveBetamax.org

Or use EFF's Action Center: Induce Act Update: Turning Up the Heat.

If you don't know why you should care, you can pick a few articles at random from an index of more than 100 of my postings on the INDUCE Act. See, LawMeme (The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act).

For those wondering where I've been ... well, I apologize. I'll be back with a vengeance soon, putting on my pajamas and doing an indepth on INDUCE 2.0 and more. Hatch's Hit List is on a slight hiatus ... but don't worry, it'll be back too.

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CBS Memo Defense: Richard Katz Is Wrong About Ones and Els

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Posted by Ernest Miller

I've been following the debate concerning the CBS memos because I believe it has a lot to teach about the future of media, authority, journalism and blogging. It is also a fascinating story in its own right. In any case, there are worse places to start reading about the beginning of the controversy than ABC News' The Note (The Note: Sep. 10, 2004). Of course, the most recent Washington Post (reg. req.) article on the issues will get you up to speed quicker (Expert Cited by CBS Says He Didn't Authenticate Papers). See also, Seth Finkelstein (CBS (60 Minutes) Forged Memos Comparison Evidence and More concerning story that 60 Minutes documents on Bush may be fake).

In any case, despite mounting evidence that the memos are unlikely to have been created in the early 1970s, CBS News continues to defend the story vigorously, if not very successfully. For example, last evening's defense of the CBS memos is, once again, quite problematic. On September 13th, the CBS Evening News included a report where they introduced two new experts who claim to find that the memos are consistent with memos of the early 1970s. One of these new experts is a software designer who claims that the documents use a lower case "L" in place of a numeric one. From the transcript:

DAN RATHER: Richard Katz, a software designer found other indications in the documents. He noticed the lower case "L" is used in documents instead of the actual numeral one. That would be difficult to reproduce on the computer today.

RICHARD KATZ (Software Designer): If you were doing this a week ago or a month ago on a normal laser jet printer, it wouldn't work. The font wouldn't be available to you.

This brief exchange isn't quite clear, but I think what Katz is getting at is that many typewriters of the era "cheated" by having people use a lowercase "L" in place of a numeric one. There was no key for a numeric one on many typewriters of the day. Katz claims that a numeric one isn't being used in the documents, but a lower case "L" is. This would be evidence that the documents were written on a typewriter. At least, I think that is what the argument is.

However, it is not only wrong, it actually contradicts the claim that the documents were typewritten on a proportionally spaced typewriter. Why? Glad you asked.

First, I have no idea how Katz can claim to distinguish between a numeric one and a lowercase "L" on these documents. They look exceedingly similar to me. Given the degradation of the copies CBS has deigned to let us see, how can Katz be so sure?

For example, let's take a look at lowercase "L" and numeric one in Microsoft Word's Times New Roman. I've provided examples in both 48pt type and 12pt type:

Example_One.JPG
There are subtle differences between the shapes of the two characters, but I doubt highly that one could easily distinguish them in 12pt type on a poor copy. The most important distinction between the two characters is their spacing. The numeric one has space on either side so that it is the same size as other numbers (in other words, all the numbers are monospaced). This makes numbers line up in nice columns. The lowercase "L" on the other hand, is proportionally spaced so that it is quite narrow. The difference in spacing is subtle but can be seen in the documents provided.

To see the distinction, consider this line (which was highlighted in the CBS Evening News report) from one of the CBS memos (Bush National Guard Memo August 18, 1973 [PDF]). I've extracted the line that was partially highlighted in the report. The comparison text is 12pt Times New Roman from Microsoft Word. The text has been reduced in size to 96% of the original in order to match the CBS memos.

The first line is Microsoft Word text using both numeric one and lowercase "l" as appropriate. It matches quite nicely with the memo's text, which is on the second line. The third line is what happens when you use lowercase "L" as numeric one in "l87". The difference is quite clear:

Comparison_One.JPG

In this second example, the first and second lines are the same. In the third line, I've used lowercase "L" followed by a space such as "l_87". The difference is more subtle but it is still rather clear, given the degradation of memo CBS has allowed to be made public:

Comparison_Two.JPG
From the above two examples I conclude that it is most likely that the device which produced these documents had both a numeric one and lowercase "L" and that the typist actually used them as appropriate, in general.

Finally, another comparison from the typed letterhead of one of the other memos (Bush National Guard Memo May 4, 1972 [PDF]). The first line is what happens when you use all lowercase "L"s. Clearly, that is not what happened. The second line uses numeric ones, the third is from the memo, and the fourth is lowercase "L" with spaces between letters. Althought the difference is quite subtle, to my eye the numeric one is a closer match:

Comparison_Three.JPG
However, this image is really to make another point. The reason many typewriters "cheated" in not having a numeric one and only had a lowercase "L" was because they were monotype. The shape of the characters was extremely similar, and in monospaced type the spacing was identical. So, it made sense to have a cheat. However, in proportionate spaced type, lowercase "L" and numeric one have very distinct spacing and lowercase "L"s look odd in many cases when used as "ones." And, if you were typing some columns of numbers, the use of proportionately spaced lowercase "L" would really mess up the alignment. Thus, though I am no expert, I would imagine that most proportionate spaced typewriters would have distinct characters for numeric one and lowercase "L". Of course, one might argue that the typewriter used for these memos, although proportionately spaced, did not have separate characters for numeric one and lowercase "L". I consider that improbable, but if there is evidence that proportionate spaced typewriters continued to leave out numeric ones, I would be interested in seeing it.

Of course, if proportionate spacing typewriters had both "1"s and "l"s, why would the typist only use lowercase "L"? After all, the typist of the memos was clever enough to insert a superscript special character (the infamous "th") and do some really nice center aligning. Why wouldn't the typist have used both numeric one and lowercase "L"?

Thus, I conclude and assert that Katz really doesn't know what he is talking about and his defense of the authenticity of the memos is really quite weak.

Btw, this is a tentative conclusion. I'm no expert and the documents provided by CBS are quite poor quality though they claim, according to the Mercury News (reg. req.), that they have first-generation copies (CBS stands by story on Bush's service, defends memos' authenticity):

CBS spokeswoman Sandy Genelius said Monday that the network possesses what it believes to be so-called first generation copies duplicated directly from the original documents.

But the copies posted on its Web site are somewhat blurred and speckled, suggesting repeated copying.

Genelius said she could not explain why the versions posted on the CBS Web site appear to have been repeatedly copied, while the copies the network relied on for its reporting were not.

Sure would be nice if CBS would make high quality scans of the documents available. Might help CBS' case.

Nevertheless, I believe my demonstration here casts serious doubt on Katz's claim.

UPDATE 0930 Pacific Time

More detailed "1" vs. "l" analysis by Joseph Newcomer here: The Bush "Guard memos" are forgeries!.

Scroll down to "Additional Update 13-Sep-04 - The L with it!"

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September 10, 2004

Copyright Office Report on INDUCE Act (IICA) Complete But Not Yet Public

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Posted by Ernest Miller

Yesterday afternoon, the Copyright Office was to provide a report to the Senate Judiciary Committee on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). See, Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) "Consensus" by Sep 7 and Copyright Office Produces 'Discussion Draft' Alternative to INDUCE Act (IICA).

Two sources have confirmed that the report has been submitted to the Senate, but the report will not be released publicly until Senate staffers have had a chance to review it.

Of course, I wonder why the delay in making the report public? Is it going to change between now and when the Senate deigns to release it? Why is this an appropriate way of dealing with a public report?

Anyway, I've got some other things to do today. Hopefully, I'll be able to take a look at it as soon as someone decides the report is fit for the people who paid for it.

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

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Hatch's Hit List #45 - MIT's I/O Brush

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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: MIT's I/O Brush

MIT's infamous Media Lab, from which many inducing technologies have found their way into the world, has produced a device whose sole and only purpose appears to be copyright infringement. Furthermore, it is designed to be used by children, training them from an early age to engage in copyright crimes! Who knows how many innocents will be corrupted by the Fagins and Child Catchers of MIT?

What is this criminal device? The I/O Brush:

I/O Brush is a new drawing tool aimed at young children, ages four and up, to explore colors, textures, and movements found in everyday materials by "picking up" and drawing with them. I/O Brush looks like a regular physical paintbrush but has a small video camera with lights and touch sensors embedded inside. Outside of the drawing canvas, the brush can pick up color, texture, and movement of a brushed surface. On the canvas, children can draw with the special "ink" they just picked up from their immediate environment.
This is explicitly training children to violate the rights of reproduction and derivative works. Unbelievable! Shocking!

And just what does MIT expect the children to do with their infringing works? Undoubtedly, because they are in digital format, share them with people! Perhaps they expect that they will be shared via the internet! Thus, violating the right of public distribution! A few more exclamation points for no apparent reason!!!!!!

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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September 09, 2004

TiVo plus Netflix =! Broadcatching

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Posted by Ernest Miller

These past few days there has been a great deal of excitement about a report in Newsweek that TiVo and Netflix would be joining together to deliver downloadable movies (I Want a Movie! Now!). See also, C|Net News' more nuanced take: Picture imperfect for Netflix, TiVo.

My response? Yawn.

Wake me up when TiVo provides an open interface for downloading video content via the internet (preferably via RSS w/ BitTorrent Enclosures).

There are no details as both companies are being quite reticent and, apparently, the "done" deal is really only nearly done, and nearly done is not quite the same as actually done. Still, what this sounds like is a closed system. You can get the content that TiVo and Netflix choose (or are permitted) to license for you. It will be a wonderful selection (maybe) but that isn't going to really revolutionize things too much. Really, how much different is this service than TiVo combined with pay-per-view?

The internet doesn't offer exciting possibilities because it is a closed network where only the major content providers are allowed to offer information. Where would the internet be if you could only get information from the usual list of suspects? You wouldn't be reading this blog, for one.

So, TiVo plus Netflix would be nice. But so would Movielink, CinemaNow, Starz and all the other internet movie download services. TiVo adds easy connection to the television, but others will soon offer that too.

What will be exciting is connecting the television to any video content on the internet - broadcatching is when things get interesting.

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Hatch's Hit List #44 - Broadcatching

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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: Broadcatching

Combine RSS (w/enclosures) with BitTorrent and you get what I call "broadcatching." It is, in my view, a revolutionary method for multimedia publishing and distribution without gatekeepers.

Problem is, like email and http and ftp and p2p, anyone can post any sort of content in the enclosures and easily distribute it. In fact, undoubtedly, broadcatching will be used by many for infringement. People will share their favorite (and copyrighted) television programs and movies with others. And, if the RSS is private (aka a "darknet"), how will the RIAA or MPAA be able to find and punish the infringers?

The tools for using broadcatching will undoubtedly encourage people to use them for illicit purposes, such as with instructions that "any large file could be put into an enclosure" or something similar.

Clearly, the whole broadcatching thing is going to have to be strictly regulated. Perhaps we can require that all RSS feeds be registered, so that they can be monitored? Broadcatching software will definitely need dialog boxes that ask if the user is sure they want to add content to an enclosure, as it might be copyrighted. Newsreaders will need dialog boxes that ask subscribers whether they want to download the enclosures (they might be copyrighted).

Because broadcatching is a direct and immediate threat to the business models of Hollywood, it will certainly be a prime target for any lawsuits Hollywood can throw against 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.

Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | Hatch's Hit List | INDUCE Act

September 08, 2004

Call Congress on Sep. 14 - SaveBetamax.org

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Posted by Ernest Miller

On September 14th Downhill Battle wants you to call Congress to let your representatives know your views on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act): SaveBetamax.org:

The Betamax ruling is the only thing that protects your right to own a VCR, tape recorder, CD-burner, DVD-burner, iPod, or TiVo. It's that important. But new legislation that's being pushed through the Senate by lobbyists for the music and movie industries would override the Betamax decision and create a huge liability for any business that makes products which can copy sound or video. This legislation (formerly known as the INDUCE Act) would essentially give Hollywood veto power over a huge range of new technologies. And if they get this power, they'll definitely use it: just as they tried to stomp out the VCR in the 70's and 80's, the music and movie industries want to force all content to go through their own restricted channels.
Go ahead, register.

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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Viewing Commercials on TiVo

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Posted by Ernest Miller

Fascinating study on TiVo use by consumers from Forrester Research (Forrester Research Conducts In-Depth Survey of DVR Users to Uncover Key Trends Impacting the Television and Advertising Industries). Some of the key findings are quite interesting:

DVRs have a significant impact on consumers' TV viewing habits.

-- While real-time viewing drops by 60 percent for consumers who use DVRs, programs like the evening news and sporting events are among the programs that retain significant real-time viewing.

-- Forrester's survey respondents report watching only 8 percent of commercials in recorded programming. Three out of 10 viewers say they watch no commercials at all.

-- Although the numbers paint a gloomy picture for advertisers, viewers do not treat all ads equally. Three out of four DVR users watch some ads at least occasionally. Movie ads and promos for upcoming programming fare best. Conversely, consumers watch less than one in 10 ads about credit cards, long-distance carriers, car dealers, and banks.

So, some types of commercials are popular, others are not. How about that? I guess car dealers are going to have to get more creative.

Other findings include the fact that delayed viewing for time-sensitive programming (such as sports and news) doesn't drop nearly as much as other programming. Well, duh. Still, sometimes the obvious needs to be stated.

via digitalmerging.la

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INDUCE Act (IICA) Response to Copyright Office "Discussion Draft" and Other News

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Posted by Ernest Miller

The Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) continues to endanger technology and innovation, as the response to the Copyright Office's "discussion draft" revision of the bill is received poorly by both sides of the debate. Sometimes, when you upset both sides, you've got a good compromise. That is most definitely not the case here.

Citizens, you know, the people who supposedly are sovereign and all, weren't invited to provide any feedback to the Copyright Office. In fact, there was only a 24-hour window for comments ... it is almost as if they really didn't want any real discussion or something. In any case, the lack of openness of the process didn't stop at least one private citizen from providing unsolicited (but extremely worthwhile) advice. Joshua Wattles is past president of the Los Angeles Copyright Society; the former acting general counsel of Paramount Pictures Corporation and it’s then lead intellectual property counsel; former counsel to certain peer-to-peer services and developers appearing as amici in the MGM v. Grokster litigation; a former in-house lawyer for ASCAP; and a co-founder of Bay Area Lawyers For The Arts, the precursor organization to Volunteer Lawyer For The Arts. So, basically, he knows what he is talking about - and he is quite critical, to put it mildly, of this version of the INDUCE Act.

Be sure to read Wattles' 8-page annotation of the "discussion draft": Comments of Joshua S. Wattles as a Private Citizen and Member of the Copyright Bar [PDF]. Just a small taste:

At some point if enough cuts are made around a doctrine, it falls just as dramatically as if it had been stabbed in its core. The draft preserves the Sony-Betamax doctrines in only the most technical sense of failing to state that they are overturned. Congress is free to directly eliminate the Sony-Betamax doctrines from the law but the impression was made by the Senate Committee that it would not do so.
C|Net News has its own report on the "discussion draft" from the Copyright Office (Copyright Office pitches anti-P2P bill). Read my story here: Copyright Office Produces 'Discussion Draft' Alternative to INDUCE Act (IICA).

Prof. Susan Crawford's original response to the INDUCE Act was quite moderate, simply calling for hearings on a flawed bill (Crawford on the INDUCE Act: Not With a Sledgehammer, But a StilettoTaking On Technology):

I'm sure there will be many meetings about this draft, and I'm confident that reason will prevail. I'm sure this redraft isn't the last word. So I'm not jumping up and down. I'm just amazed at this sequence of events.
Me, I'm very concerned. Sen. Orrin Hatch (R-UT) has promised to pass something, flawed or not. In any case, read the whole thing.

Public Knowledge has also written a response (Sept. 3 Letter to Copyright Office Regarding S2560). The letter asks some highly pertinent questions about the langugage of the draft:

By contrast, the Copyright Office discussion draft appears to us to be much less narrowly crafted. In its scope it appears to sweep up virtually all communications technology-- from e-mail to web browsers to Internet routers -- then appears to attempt to exclude from liability some types of “good” technology. This approach strikes us as a backwards one that leads to overbreadth of potential liability even as it departs from the useful notion of focusing on potential defendants’ intentions.

Given how little of the discussion draft actually addresses the precise question of infringement-inducing peer-to-peer companies, we are left with a looming question: What is the real focus of the language of the discussion draft? Chairman Hatch and Senator Leahy were clear which bad actors they intended this bill to target. Is there some other class of actor or behavior that the discussion draft wishes to target other than the ones specifically mentioned in the senators’ statements?

Of course, the letter also pushes the alternative Public Knowledge has signed on to. More on that alternative here: 'Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News.

Techdirt doesn't mince any words (Latest Induce Act Gets See Through Whitewash).

In a more positive take, on Copyfutures, Matthew Caron thinks overbreadth might not be so bad (One Step Closer):

No matter how well drafted the legislation is, it will always require interpretation by the courts. And while much of the criticism is not without merit, a perfect draft that satisfies everyone will never be written. These are extremely complicated matters that the law seeks to correct. Perhaps somewhat broad legislation interpreted with case by case analysis is the way to go. But whatever the correct answer, at least the 09/02/04 draft is a step in the right direction.
On the other hand, another poster to Copyfutures (and Utah native) is more critical (Induce Act "discussion draft" still overly broad).

There has been even more commentary on the INDUCE Act on Copyfutures. Tommy O'Reardon argues that the best way to fight INDUCE is for people to stop committing copyright infringement over filesharing networks (The Irony of the Outcry against INDUCE). He makes some good points, but I don't think INDUCE is simply about stopping piracy. I believe it is about giving copyright holders control over distribution technologies in general.

Michael Loughran asks, What did Sony Induce? He is asking how the copyright industries feel about the Sony-Betamax devision, given that it has brought them tremendous profits. My quick answer? They still hate it.

Dan Gillmor has a wrap-up of several legislative issues, including the INDUCE Act, that we should all care about on the Mercury News (very annoying reg. req.) (Bad legislation threatening privacy, innovation, accounting).

CNN has a fairly lengthy article on INDUCE (iPod in the middle on Capitol Hill).

Finally, on Copyfight, Jason Schultz notes Hollywood spokespersons being somewhat honest about the fact that they expect the INDUCE Act to behave as mandating DRM (RIAA Lobbyist: DRM 'up or INDUCE is gonna getcha). Gee, and I thought that INDUCE was supposed to only target bad actors? Of course, if you define bad actors as those who don't use DRM, that definition still holds.

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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The Importance Of ... Law and IT: Garage Doors and the DMCA

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Posted by Ernest Miller

Episode the third of my new audio series, The Importance Of ... Law and IT, is up on IT Conversations.

This show focuses on the recent appellate decision on the DMCA's anti-circumvention provisions, Chamberlain Group, Inc. v. Skylink Technologies, Inc.. Previous coverage here: Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test and Commentaries on the Federal Circuit's Skylink Decision.

Get the show here: Garage Doors and the DMCA.

Once again I had the pleasure of hosting experts on the issues:

Thanks to everyone for a great show!

Slowly, but surely, I think I'm getting the hang of this audio format. Suggestions, recommendations, etc., appreciated.

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Hatch's Hit List #43 - Large Portable Hard Drives (and Mark Cuban)

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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: Large Portable Hard Drives (and Mark Cuban)

Mark Cuban wrote a very perceptive article on what the ever-increasing capacity of hard drives means for HDTV (HDTV, DVD, Hard Drives and the future). He argues, mostly persuasively, that hard drives, with their tremendous capacity, are a better mean for distributing HDTV signals in all their high-resolution glory compared to DVDs, even the next generation high-capacity DVDs. A highly recommended read.

Of course, one of the benefits of all that read/write storage is making (copyrighted) content portable. After all, why will people need 200G portable drives? Their OpenOffice documents? Please. Clearly, these drives are meant to store and make content mobile, the vast majority of which will be copyrighted. Heck, even the example Cuban provides shows this (luckily Cuban can probably afford to defend a lawsuit):

I had a couple DVDs that I had PURCHASED, that I hadn’t had the chance to watch. I had a couple 512mb Flash Drives that I had bought specifically to test them out for video. I took the first movie, and using an encoder with compression (not going to tell you which one, don’t want to play favorites), I encoded the movies at DVD quality and saved the output onto each of the 512mb Flash Drives. I popped those tiny little puppies into my pockets and off I went to the plane. Keys, some money and my keychain flash drives in one pocket, phone in the other. No hassle, no fuss no muss.

On the plane, I popped the first keychain drive into the USB Port. Got the ready signal, got prompted to open my video player, and watched a nice movie right from the keychain drive. On the way home, did the same thing with the other movie. I loved it. Far less space than DVDs. Could put them in my pocket instead of filling up my briefcase. I immediately went out and bought a 1gb keychain drive so I could hold 2 movies on 1 drive, in addition to my first 2 drives.

Let's tally up the crimes here, shall we? Violation of subsection 1201(a) of the DMCA is clear. Making backups or format shifting is not fair use according to the MPAA. And, if the INDUCE Act were in force, this sounds like inducement to infringement to me. Heck, he calls this illicit conduct a "great experience" - he has to know he was encouraging other people to engage in such conduct also.

Oh, sure, Cuban provides some alternate business models that can take advantage of these larger hard drives. Heck, some of them are probably even very good and profitable ideas. But content providers shouldn't be forced to adopt these new and more profitable business models by technology. The development of technology must be restrained so that older business models will continue to thrive.

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.

Comments (0) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act

September 07, 2004

Hatch's Hit List #42 - Microsoft Music

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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: Microsoft Music

I almost didn't add this to Hatch's Hit List. I thought, "explaining to people how to make legal use of their systems ... that goes a bit far, doesn't it?" Silly me. Of course it doesn't go too far.

Last week, as everyone knows, Microsoft soft launched its entrant into the online music store business, MSN Music Preview. Of great interest for many, were the instructions Microsoft provided for those who wanted the music they purchased from MSN's music store to play on the Apple's iPod.

As EFF's Fred von Lohmann related, Microsoft was recommending that users rip the music to CD, convert it to MP3 and then upload it to their iPod (MSFT Offers Real "Freedom of Music Choice":

Tech support for Microsoft's new MSN Music service is responding to the incompatibility between its downloads and the iPod by advising its customers to burn the downloads to CD, then rip the CD to a compatible format:
Although Apple computers and Apple iPods do not support the PC standard WindowsMedia format for music, it is still possible to transfer MSN Music downloads to an iPod, but it will require some extra effort. To transfer MSN-downloaded music to an iPod, you need to first create a CD with the music, and then you need to import that CD into iTunes. This process will convert the music into a format that can play on the iPod. We're sorry that this isn't easier - unfortunately Apple refuses to allow other companies to integrate with the iPod's proprietary music format. If you are an iPod owner already and unhappy about this policy, you are welcome to send feedback to Apple requesting that they change their interoperability policy.
Now that's what I call freedom of music choice, in contrast to Real Network's misleading campaign of the same name. [links in original]
Well, I should have realized that Microsoft would soon see the error of their ways. According to an article in Salon (annoying reg. and ad required for non-subscribers), Microsoft has changed its tune (One music store to rule them all):
I also contacted a Microsoft representative to ask about the curious advice they were giving to users. And that's when Rob Bennett, the senior director of MSN Entertainment, responded in an e-mail that the whole thing was something of a mistake. "I'm reviewing the language on the preview site now," he wrote. "We absolutely don't want to encourage people to circumvent the usage rights for music downloads. It is unfortunate that Apple still disables Windows Media support in the iPod (the firmware they license from PortalPlayer actually supports WMA but they turn it off), restricting their customers' choice of where they download music. Our approach is very different, encouraging broad choice of many music services and many portable audio devices with the Windows Media format."

When I later checked the MSN Music help site, the advice Microsoft was giving to its iPod customers had been changed. Now, instead of counseling users on how to have MSN's songs play on their iPod, the site simply provides an e-mail address for people to complain to Apple. It also says, "There are more than 70 portable audio devices that support MSN Music today, and we hope that someday Apple decides to join with the industry and support consumer choice." [links omitted]

Hmmm, sounds very close to an admission that telling people what they can legally do with their DRM'd music might encourage them to infringe. If Microsoft is worried, imagine how worried some joe noting this process on their blog should be, under the INDUCE Act.

More coverage of this issue:
Fred von Lohmann on Deeplinks (MSFT About-Face on "Freedom of Music Choice")
Daring Fireball (You Can Choose Any Color You Want, as Long as It’s Black)
Derek Slater (MS: On Second Thought, Put On These Handcuffs)

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.

Comments (4) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act

September 03, 2004

Hatch's Hit List #41 - iPodder

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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: iPodder

I've written in praise of Adam Curry's iPodder as a platform previously (Broadcatching on the iPod Platform). Indeed, the concept excited me so much that I started an online radio show to take advantage of the platform: The Importance Of ... Law and IT.

What iPodder does, is take an RSS feed with enclosures that include audio files, and import them directly into Apple's iTunes. Basically, you can put your iPod in its cradle when you go to sleep and, overnight, it can be populated with all new audio when you wake up in the morning. Ultracoolness.

However, imagine how efficient this tool is for copyright infringement. People can publish RSS feeds with infringing enclosures and the information will automatically be sent to the subscriber's iPods. This is so incredibly convenient, innovative and makes so much sense that it will certainly encourage people to infringe even more.

No more need to laboriously search P2P filesharing networks, or the darker alleys of IRC for infringing files, download them, winnow the bad rips and RIAA files, and then get iTunes to recognize the new music. What a pain! With iPodder, one can simply subscribe to a trusted infringing feed and all the muss and hassle of infringement is taken care of.

That's the problem with these innovative, new software platforms. No one ever thinks to cripple them with DRM and other anti-consumer anti-infringment bugs features before unleashing them on the internet. How is technology supposed to develop properly if people keep innovating so freely?

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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The Importance Of ... Law and IT: Apple v. Real v. Microsoft

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Posted by Ernest Miller

Well, the second episode of my new audio series, The Importance Of ... Law and IT, is up on IT Conversations.

This show focused on a mixture of legal, business and policy issues involved in the current online music store conflicts: Apple v. Real v. Microsoft.

Once again I had the pleasure of some excellent guests:

Schultz apparently had much more to say on the issues and blogged some of his thoughts on Copyfight (The Irony of Digital Music DRM -- More Choices, Fewer Options).

See also, Fred von Lohmann on EFF's Deeplinks (MSFT Offers Real "Freedom of Music Choice"). via Copyfight

Thanks to everyone for an interesting show!

Btw, suggestions for improvements, future shows, etc. appreciated.

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September 02, 2004

Copyright Office Produces 'Discussion Draft' Alternative to INDUCE Act (IICA)

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Posted by Ernest Miller

As ordered by four Senators a couple of weeks ago, the Copyright Office has begun work on producing a "consensus" version of the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). See, Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) "Consensus" by Sep 7. As of August 23rd, there was apparently no progress being made (INDUCE Act (IICA) Interview (with me) and Other News), but things have picked up quite a bit since then, though the Copyright Office has had its deadline extended to Thursday, Sep. 9th.

The Copyright Office has released a "discussion draft" of an alternative to the INDUCE Act to be used as the basis of, what else, the discussion that will take place. Read the 4-page draft here: Copyright Office - Discussion Draft - Alternative INDUCE Act [PDF]. HTML version after the break.

Before looking at the alternative, however, be sure to check the email the Copyright Office sent to quite a few people along with the draft proposal. The Copyright Office doesn't endorse the proposal and is seeking comments by this Friday, and another meeting this coming Tuesday:

As was indicated in last Thursday's meeting, attached for your review and comment please find a discussion draft prepared by the Copyright Office. Please keep in mind that this draft is intended to facilitate and promote discussion of the issues in a more concrete way than we discussed last Thursday -- it should not be taken as our recommendations, and nothing in here should be taken as the official position of the Office. We remain open to suggestions and clarifications that will help us develop recommendations that have the best chance at garnering consensus around an effective and appropriate form of liability.

Here is the process we will follow going forward. We ask that you submit written comments on this draft, by e-mail to this e-mail address, by 5 P.M. Friday Sept. 3. On Tuesday afternoon, at 2:00 PM, location to be determined, we will hold a meeting at which we will react to your comments and seek further information for our recommendations. We will then prepare and submit our recommendations to the Judiciary Committee on Thursday, Sept. 9. We greatly appreciate the fact that the cosponsors of the bill and their staffs have given us two extra days to submit our recommendations, which allows us to hold the additional meeting with interested parties.

Thanks again for your constructive participation in this process. We look forward to comments on Friday and the meeting on Tuesday.

My basic take on a first look is that, while this language is significantly better than the ridiculously overbroad language of the INDUCE Act as introduced, this is still a very dangerous bill for technology and innovation. Instead of ludicrously overbroad, this proposal is only excessively overbroad.

Also, be sure to compare and contrast this alternative with:
Ernest Miller's Draft Substitute for the INDUCE Act (IICA) v2.0
Tim Wu's INDUCE Act (IICA) Alternative
Shredding the INDUCE Act (IICA) - CEA, IEEE-USA, NetCoalition (IEEE-USA's alternative language about the middle of the article)
'Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News


Read on for the Copyright Office's discussion draft's alternative language...

...continue reading.

Comments (2) + TrackBacks (0) | Category: INDUCE Act

Chamberlain v. Skylink in the Court of Public Opinion

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Posted by Ernest Miller

What court of public opinion? The only people paying attention seem to be a smattering of the tech journals and IP law bloggers, with only a single major media source weighing in. Call me crazy, but I think this is a major consumer rights issue, with lots of repercussions for the tech industry and innovation. Why isn't this story getting more play?

Heck, even Slashdot published the story, but not on their front page (Universal Garage Door Opener OK under DMCA).

The biggest media source to weigh in on the issue so far is the LA Times (reg. req.), which has a very brief story that will only confuse people who aren't already familiar with DMCA issues (An Open-and-Shut Copyright Case).

One of the problems with the LA Times story is that the unwary reader may think the case involved whether garage door openers were subject to copyright, and the decision was that they were not, which is incorrect:

Chamberlain had sued Skylink under, of all things, the 1998 Digital Millennium Copyright Act. The act was meant to restrain Internet piracy by making it illegal to break the digital locks that protect a piece of intellectual property — an electronic book, say, or a CD or DVD.
As if it were a surprise that Chamberlain sued under the DMCA. This was an obvious tactic that critics of the DMCA have noted was available for years. It isn't as if Chamberlain was the only company doing this, perhaps the LA Times could have mentioned a little company called Lexmark. [Correction: The article does mention "makers of prosaic products such as ... printer ink cartridges"] The clear implication here is that the software in garage door openers is not worthy of the same protections as Hollywood's content (how appropriate for the LA Times to think this), but that is not what the court said. Although there was some dispute over the copyrightability of the code at issue, for purposes of the decision, the court assumed the software had the same copyright protections as Spider-Man 2.

SecurityFocus, which is an excellent news source for tech/policy stuff, has a solid piece on the case (Appeals court slams garage door DMCA claim).

Out-Law.com has a short piece (Garage door copyright ruling upheld on appeal).

LinuxElectrons sees only positive aspects in the decision, failing to note what the decision still doesn't permit (Court Ruling Opens Door to More Competition in After-Market Parts).

Over on Freedom to Tinker, Ed Felten has some really excellent thoughts and comments on the decision (Skylink, and the Reverse Sony Rule). Highly recommended reading!:

For most of the opinion, before veering away at the last minute, the court seems to be heading toward a kind of reverse Sony rule. The original Sony rule, laid down by the Supreme Court in 1984, says that making and selling dual-use tools -- tools that have both significant infringing uses and significant non-infringing uses -- does not constitute contributory copyright infringement. (Selling tools that have only non-infringing uses is obviously lawful, and selling tools that have only infringing uses is contributory infringement.)
Stefan Bechtold, a fellow at Stanford Law School's Center for Internet and Society, lists three reasons he thinks the decision is important (DRM and Competition on Downstream Markets).

Derek Slater hasn't written his analysis of the case yet (some lame excuses about traveling cross country and starting school, or something), but he has put together some excellent links for further background on the case (Skylink Linking).

Previous coverage:

Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test
Commentaries on the Federal Circuit's Skylink Decision

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Hatch's Hit List #40 - DEF CON

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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: DEF CON

Aka "the largest underground hacking event in the world." I could probably spend the next few months of Hatch's Hit List (hopefully, that won't be necessary) simply going presentation by presentation through the various speakers and topics on the schedule for DEF CON 12:

  • Advanced Hardware Hacking
  • Tools for Censorship Resistance
  • Weaknesses in Satellite Television Protection Schemes
  • NoSEBrEaK—Defeating Honeynets
  • Down with the RIAA, Musicians Against the Recording Industry
  • Cracking Net2Phone
  • PDTP – The Peer Distributed Transfer Protocol
The list goes on and on and on.

If the INDUCE Act passes, they'll have to change the name of the event to "LAWYER CON."

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.

Comments (0) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act

A JibJab Coda

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Posted by Ernest Miller

Findlaw's Modern Practice publishes an article analyzing the JibJab case (You Can't Say "Parody" / That Really Scares Me). The article is a good, solid summary of the issues with a handful of occasionally humorous, sometimes groan inducing legal riffs on the JibJab parody:

You can't say [parody] / that really scares me /
sometimes a [lawyer] can / come in quite handy.
The article concludes that, ultimately, JibJab had the stronger case:
Jib Jab has the stronger case, based on the limited nature of Ludlow Music's copyright, the fact that the Jib Jab work is indeed a parody, and the weight of relevant fair use factors.
via Patently Obvious

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September 01, 2004

The Copyrightability of Messages from Extraterrestrials

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Posted by Ernest Miller

David Weinberger posted something today on JOHO the Blog that reminded me of one of the minor problems I have copyright law (The words of the prophets are written for $14.95):

Remember Rael? No, not Rael Dornfest. The French "journalist" and lying clone meister who has been appointed ambassador by the extraterrestials who created life on this planet. In fact, the ET's dictated a book to Rael to set the planet straight. And yet Rael charges $14.95 to buy it. Why haven't the aliens cut Rael down with a laser death beam beam for not posting the whole book for free on the Web? Did Isaiah hold out for foreign rights? Did Ezekial hold on to the film rights? Did Jeremiah run blog ads?...
I've always thought that authoritative religious works shouldn't be copyrightable, or if they are, that the copyright should be exceedingly thin.

Why? Well, among other reasons, it doesn't seem that we have to worry about the incentive to create the works. I would also consider the works fact-based, since there is generally no claimed human-based creativity involved. Furthermore, where a text is supposedly authoritative, there would seem to be problems with the merger doctrine. When every word is important for doctrine, you really can't separate the idea from the expression, they are one and the same. Authoritative religious works are often functional as well, and you can't copyright functions.

Of course, the courts don't seem to agree with my position. In fact, I would say that copyright has often been used to protect established religion to the detriment of newer religious groups. Gee, wonder why that is?

More about the book here: Raël's The Message given by Extra-Terrestrials.

Comments (2) + TrackBacks (0) | Category: Copyright

More on the "Don't" INDUCE Act (IICA) from Some New Suspects

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Posted by Ernest Miller

I've done a couple of posts dedicated to commentary on the "Discouraging Online Networked Trafficking Inducement Act of 2004" or "Don't Induce Act" ('Don't Induce Act' - an Alternative to the INDUCE Act (IICA) and Other News and (Don't) INDUCE Act (IICA) Round-up and Other News). The Don't Induce Act is a response from a number of technology companies and organizations to the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act). Discussion about the proposed alternative continues.

ComputerWeekly.com has a decent mainstream media report on the issue (Industry groups propose alternative to copyright bill).

However, of more interest are the commentaries from a new group of law students blogging as part of Prof. Lawrence Solum's IP Seminar at the Univ. of San Diego's School of Law. The seminar blog is called Copyfutures: The Future of Copyright. Good stuff!

The students have already posted some interesting comments concerning the Don't Induce Act.

Jeff King believes that the proposed alternative is only the beginning of finding a resolution (DONT Induce Act Proposes Narrows Liability that Would be Imposed by Induce Act):

Expect a lot more debate on this issue before any sort of final resolution to this issue. The need for digital protection of copyright is not going to go away. The Induce Act and the DONT Induce Act are polar opposites in the burgeoning debate over digital protection of copyright. Neither of the bills is likely to make it into law in its present form. The media industry has too much money at stake, and consumers have too great a thirst for digital content for either of the current drafts to meet with widespread approval by both factions in this debate.
Yip Yu argues that the Don't Induce Act isn't much of an improvement over the INDUCE Act itself (Nobody is Better Off with INDUCE/DON'T INDUCE):
An argument can be made suggesting that DONT Induce is actually worse off than the Induce Act because DONT Induce requires at least two judicial determinations and the Induce Act requires at least one judicial determination. Under DONT Induce, the courts have to decide whether the infringement is the predominant function of the defendant’s software and whether it is the distributor’s predominant source of revenue. The Induce Act only requires a judicial determination whether the defendant intended to induce infringement.
I look forward to reading more from the Copyfutures blog.

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Comments (1) + TrackBacks (0) | Category: INDUCE Act

Hatch's Hit List #39 - Peer-to-Peer Software Development Kits

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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: Peer-to-Peer Software Development Kits
With at tip o' the virtual hat to John Parres

The ostensible targets of the INDUCE Act are peer-to-peer filesharing systems. But, get rid of one, and another will take its place. Writing software for such networks is not particularly more difficult than other applications. Computer science college students and bright high school students can whip a basic one together over a weekend. Of course, having a peer-to-peer software development kit makes it even easier, such as this one from Microsoft (Windows XP Peer-to-Peer Software Development Kit):

Download the Microsoft Windows XP Peer-to-Peer Software Development Kit (SDK), which contains all software required to create decentralized applications that harness the collective power of edge of the network PCs....

This download includes the Microsoft Windows XP Peer-to-Peer Software Development Kit (SDK), including major components such as: Peer-to-Peer Application Programming Interface (API), Peer-to-Peer headers & libraries, sample applications, source code, and documentation for each of the Peer-to-Peer core areas, e.g., scalable and secure peer-to-peer name resolution, efficient multi-point communications, creation and management of persistent peer-to-peer groups, and distributed data management.

"Decentralized applications"? "Scalable and secure"? "Efficient multi-point communications"? This sounds like the explicit instructions for building copyright infringement machines.

Now, I'm not saying that the INDUCE Act will lead to lawsuits against Microsoft. Heck, even the government is wary of going up against Redmond. However, imagine that some non-billionaire programmers put together the Linux Peer-to-Peer Software Development Kit. How long do you think it would take before lawsuits were filed, once the INDUCE Act goes into force?

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.

Comments (0) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act

Commentaries on the Federal Circuit's Skylink Decision

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Posted by Ernest Miller

I've blogged my initial thoughts on the just-decided Skylink [PDF] case here: Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test.

I believe the case has much inspiring language, though the actual practical implications of the case aren't nearly as positive and may serve to only strengthen the DMCA and reduce the need for reform. It is a complicated decision, leaving many unanswered questions, so there is bound to be much more discussion and debate.

As such, I'll be collecting other initial commentaries here, updating as necessary. By the way, the first wave of commentary comes before any news outlets have picked up the story. Advantage: blawgosphere.

UPDATE 0620 PT; 1130 PT (Still no mainstream media); 1145 PT C|Net News

Jason Schultz on Copyfight - pulling out some of the more interesting paragraphs from the decision (Skylink Wins! Fed. Cir. shoots down Chamberlain's DMCA claim):

It's a lengthy and interesting unanimous opinion by Judge Gajarsa, with some real gems reining in some of the overbroad and much-abused language of Section 1201:
Seth Finkelstein, claiming to be an Eeyore (Chamberlain v. Skylink (Garage Door Openers), DMCA, and fair use):
All this is saying is, basically, that if there's no conflict between fair use and anything else, the DMCA can't be used as, in effect, a patent for any product. That's nice. It's good for other businesses. But it doesn't address the issues of DMCA reform, which are exactly that conflict.
Finkelstein and I don't disagree as much as his response to my initial two-paragraph post would indicate. I guess my ambivalence about the decision didn't come through strong enough.

Derek Slater promises even more later, but here is initial reaction (Skylink Wins and so too might DMCA Reform Advocates):

Ernest is on the case - he captures my sentiments, particularly with regard to it inspiring and frustrating.  I'm going to chew on this on my way to NY this evening - it's a lot to take in.  The copy and access control distinction is indeed rather murky.  The court boldly brought 1201(c) to bear (SethF, I imagine, is as surprised as I am).  The court says anti-trust and misuse still apply, regardless of the DMCA.  The court even says that Chamberlain's interpretation of the DMCA would make it borderline irrational under the test expressed in Eldred. [emphasis, links in original]
Wendy Seltzer on EFF's Deeplinks in a brief note (DMCA Doesn't Lock Garage Doors, Fed. Circuit Affirms):
With its reading of fair use, "authorization," and the dangers of copyright misuse by those who would block interoperability, the Fed. Circuit adds some important nuance to the DMCA. "[T]he DMCA emphatically did not 'fundamentally alter' the legal landscape governing the reasonable expectations of consumers or competitors."
James Grimmelmann on LawMeme (Federal Circuit Adds a Rule of Reason to the DMCA):
As I see it, under the district court's reading, a future Chamberlain might have been able to strip the "authorization" by drawing up the right warranties. But now, since fair use almost certainly shields the consumers here from any copyright claims no matter what Chamberlain says, the DMCA claim just plain fails. This case is a reverse Aimster: someone took one appeal too many and wound up watching the circuit judges do some clever (or perhaps, too-clever) interpretation to come out with a balancing test that's a disaster for the appellant's putative allies.

UPDATE 1 - 0620 PT

Cory Doctorow on BoingBoing (Garage door openers aren't copyrighted, don't get DMCA protection)

Anyway, the court delivered the clearest and most ringing condemnation of the overbroad application of the DMCA yet:
Techdirt (Court Opens Garage Doors, But Sets Murky Precedent)
The court basically wants to establish some sort of balancing "test" for the DMCA. However, the DMCA and certain decisions associated with it are fairly problematic to begin with, so the test is somewhat convoluted and not entirely reasonable. The good part is that the court seems to recognize just how troublesome the DMCA is as written. The problem is that they don't really know what to do about it to bring it back in line with where it should be to avoid its misuse for anti-competitive purposes. It sounds like a bit of cognitive dissonance as the court tried to resolve the realization that the law really was as bad as some made it out to be with the idea that Congress couldn't possibly have meant for it to be that bad.
UPDATE 2 - 1130 PT

Dennis Crouch, who broke the story and who I linked to in my original post, but forgot to add here (Federal Circuit: DMCA does not create a new property right for copyright owners):

In a well reasoned opinion, the Federal Circuit (GAJARSA) affirmed a district court's dismissal of a suit arising under anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA).....The court's basic premise is that an element of a DMCA cause of action is an underlying copyright violation -- without such a violation, there can be no remedy.
Jesse Walker on Reason's Hit and Run with a very brief post (Skylink Survives)
The courts have brought back a decision in the Skylink case, an important intellectual-property skirmish involving garage-door openers. (And you thought all the copyright wars were over Buffy fan fiction!)
Engadget (Skylink: 1, DCMA: 23,040,923,410)
Well, it’s a start: it was ruled today that Skylink successfully defended itself from the DCMA-wielding Chamberlain. If you’re not familiar with the case, Skylink, who manufactures 3rd party garage door openers, reverse-engineered Chamberlain’s garage door devices and made their own universal openers for Chamberlain’s equipment (think universal remotes for garage doors). Of course, this is a very good thing that we’re not all of a sudden copyrighting things like garage door openers; but you have to wonder why Chamberlain would care, since you still have to buy their garage doors to begin with.
Law Prof. Michael Madison has some very nice comments on the decision (Copyright in Everyday Things)
But still. The court relied in large part on what seems like an obvious proposition: consumers have the right to use objects that they buy (such as garage door opening systems), even when those objects contain embedded software. (There’s an important discussion of “access” as a legal interest divorced from copyright protection, but I’ll leave that alone for now.) For its part, Chamberlain hadn’t done or said anything to negate that expectation. So consumer “access” to the copyrighted control codes wasn’t unauthorized; it was part of the point. The sentence in the opinion that caught my eye is this one: “Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke. “

Pretty cool, no? But this is the same Federal Circuit that ruled in Bowers v. Baystate Technologies (via a panel of different judges) that enforced a “no reverse engineering” term in a software shrinkwrap license. Could Chamberlain put a shrinkwrap-style agreement on the boxes that contain its garage door openers, requiring that its consumers buy only Chamberlain-brand replacement remote controls?

Read the whole thing.

Adam Thierer raises some interesting points on the Technology Liberation Front (DMCA Will Not Keep You From Opening Your Garage Door):

More importantly, this case re-affirmed some fundamental principles found in the interesting and important case of Sega Enterprises, Ltd. v. Accolade (9th Cir. 1992).In Sega, the court held that reverse engineering could be considered fair use when it was the only way to achieving interoperability with the system in question. If memory serves me right, Accolade had opened up and studied Sega video game cartridges to figure out how to develop their own line of games for the old Sega Genesis video game platform. Sega didn’t appreciate that and sued. Luckily, they lost too.
The Blog of the American Constitution Society has a brief note (Wednesday News Roundup)
The Federal Circuit Court of Appeals issued a ruling late yesterday that creates a balancing test for implementing the Digital Millenium Copyright Act. The court found that the DMCA contained provisions that would create absurd results if interpreted literally, so it identified a balancing test to save the statute consistent with its aims. The case involved whether a generic-brand garage door opener violated the DCMA's anti-circumvention provisions. The Electronic Frontier Fountation has more on the case including a copy of the decision.
UPDATE 3 - 1145 PT

Chris Meadows agrees with Seth Finkelstein's assessment (Opening the garage door to Fair Use).

The Computing Research Policy Blog fears that chilling effects for computer scientists will continue (Court Rules 3rd Party Garage Door Openers Don't Violate DMCA).

C|Net News's Declan McCullagh appears to be the first mainstream media with a report and quotes Berkeley's Deirdre Mulligan (Judges OK garage door openers):

"What the court says is that consumers have expectations about the way they'll be able to interact with products that they purchased," said Mulligan, whose clinic filed briefs siding with Skylink. "The DMCA didn't create this new right that undermines those expectations...This particular decision is very good for consumers and good for technology companies. It's going to promote competition."
EFF's press release (Court Ruling Opens Door to More Competition in After-Market Parts):
Jennifer M. Urban, the lead attorney on the case at the Samuelson Clinic, said, "The court recognized that copyright law grants rights to consumers as well as copyright holders and held that the DMCA did not wipe those rights away."

"Chamberlain's lawsuit sought to stifle competition by misusing the DMCA," said Deirdre K. Mulligan, Director of the Samuelson Clinic. "Congress warned of such abuses and we're pleased that the court rejected this view to avoid harming consumers."

"When consumers buy a garage door opener, they have the right to use whatever remote they want with it, even one from another company," said Jason Schultz, EFF Staff Attorney and a co-author of the brief. "In Chamberlain's view, it's their remote or no remote. Thanks to this decision, they've now been shown that the law views it differently."

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Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test

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Posted by Ernest Miller

The Federal Circuit Court of Appeals has upheld the district court summary judgement decision in Chamberlain v. Skylink, which had held a third party garage door opener manufacturer not liable under the anti-circumvention provisions of the Digital Millennium Copyright Act (codified at 17 USC 1201). My sharply critical take on the district court case can be found on LawMeme (Judge Asserts Pseudo Distinction to Preserve DMCA). The case went to the Federal Circuit for some complicated jurisdictional issues regarding patent law that I won't address. via Patently Obvious

This is the most important DMCA decision since the MPAA DeCSS case decided by the Second Circuit in Universal v. Corley. The decision includes a lengthy, at times inspiring, at times frustrating, analysis of the purpose and structure of the DMCA anti-circumvention provisions. In the end, the court determines that a strict construction of the statute would lead to absurdities as many of the DMCA's critics have argued. In order to solve this problem, the court creates out of the complicated language of the DMCA a balancing test that is not strictly defined, but apparently reconciles Corley with Skylink. Among other things, the balancing test makes the distinction between § 1201(a) and § 1201(b) liability quite murky, and puts the whole reason for DMCA exemptions under the Copyright Office into question. This is a complicated decision, and there are no clear answers to many questions, however, it is a critically important one for innovation, creativity and the future of copyright law. It is sure to be extensively debated and discussed in the coming weeks, months and even years.

Read the 45-page appellate decision: Chamberlain Group, Inc. v. Skylink Technologies, Inc. [PDF].

UPDATE 0616 PT
Read the decision in HTML: Chamberlain Group, Inc. v. Skylink Technologies, Inc. [HTML].

Analysis soon...

UPDATE 2105 PT

Here is my rather lengthy look at the case...

...continue reading.

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Game Consoles and VoIP

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Posted by Ernest Miller

There has been much talk about the use of Xbox Live as a VoIP platform, such as this article from C|Net News back in February 2004 (Playing Games with VoIP). Today, there are a number of interesting articles concerning gaming consoles and VoIP.

Jeff Pulver, the dean of VoIP, has an interesting speculation about who will dominate the VoIP space in 2005 (Nintendo and Sony May Dominate the Consumer VoIP Marketplace in 2005):

Both Nintendo and Sony are now leveraging the power of IP communications to incorporate both IP Voice and IP Video inside of their products, without directly marketing these products as VoIP devices on their own. Both the DS and PSP are well positioned to be living examples of “killer applications” for IP Communications. So while these companies won’t be calling their platforms powered by: “VoIP Inside”, we just need to smile when we read about the buzz surrounding these really cool consumer products.

Details regarding the DS and PSP has been written about in countless gaming magazines over the past few months but it was only recently that my kids connected the dots and told me about these new products that are well positioned to redefine gaming amongst the 10 year-old set (and their parents.)

It may be just a matter of time before some of the more creative forces within the VoIP industry start to announce the availability of commercial VoIP communication services associated with these really cool devices.

Indeed. Especially considering the news from Gamespot today (Analyst note: Nintendo DS invites free voice-over-IP chat):
In its Electronic Entertainment Industry Update released today, TNI Securities reports that the recently revealed headset port on the Nintendo DS will be used in conjunction with the built-in wireless 802.11b networking capabilities to offer voice-over-IP chat--in effect, allowing gamers to use the DS to make free phone calls at wireless network hotspots.
That is real news (via Gizmodo).

What is most interesting to me is the WiFi capability. Many people dismiss WiFi as a VoIP platform due to coverage issues and what not. However, I think there is a lot more potential than most people realize. Coverage doesn't have to be perfect if the connectivity is free and the capability is built into a device you have already. Instead of cameraphones, phonecameras. You use it mostly as a camera, but it has limited phone capabilities when you need that, too.

This won't happen overnight, but Nintendo has sold an awful lot of GameBoys ...

UPDATE 1845 PT

Slashdot has more (Nintendo DS To Allow Free VoIP Calls).

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